Thе constitutional question presented by this appeal is whether Minn. St. 160.05, if construed to extend public dedication of a road to a width of 4 rods and not simply to the extent of actual use, results in a taking of private property without due process of law. As a substitute for the common-law creation of highways by prescription or adverse use, 1 the statute provides the following method for acquisition of highways by adverse public use (Minn. St. 160.05, subd. 1):
“When аny road or portion thereof shall have been used and kept in repair and worked for at least six years continuously as a public highway, thе same shall be deemed dedicated to the public to the width of two rods on each side of the center line thereof and be and remаin, until lawfully vacated, a public highway whether the same has ever been established as a public highway or not; provided, that nothing herein contаined shall impair the right, title, or interest of the water department of any city of the first class secured under Special Laws 1885, Chapter 110. This subdivision shall аpply to roads and streets except platted streets within cities.”
The facts giving rise to the question of the constitutionality of this statute are not complex. Plaintiffs, Mathias S. Schaust and Walter Barfnecht, both own tracts of land in Carver County. Their land abuts a gravel road which has been maintained as a public road for a considerable number of years. The township established its public character pursuant to § 160.05 by proving use and maintеnance of the road for the statutory period of 6 years.
In April 1970 the Town Board of Hollywood Township, defendant, resolved to rebuild and imprоve the road in question. Bids were received for upgrading and sloping about 1 1/2 miles of township road. Easements for backsloping were sought from plaintiffs as adjoining landowners, but both plaintiffs ultimately *507 refused to give such easements. Road construction began in May-1970. Shortly thereafter, plaintiffs instituted this action for in-junctive relief or damages. Plaintiffs sought to show at trial that the road was initially established as a 2-rod road and that defendant was now tаking their land to widen the road. 2 The trial court made no distinct finding on the width of either the improved road or the road before 1970. The trial court, relying оn § 160.05, found that the road, acquired by public use, was statutorily dedicated to a width of 4 rods. Since the road improvement “remained within the area of two rods on each side of the center line of the road as it existed before the improvement,” the trial court concluded that the lаnd used by defendant was already part of the public highway. It is this statutory basis of decision that frames the constitutional issue. 3
Defendant contends, and the trial court agreed, that § 160.05 constitutionally provides that any road dedicated by adverse public use is dedicated to a width of 4 rods, regardlеss of the width of actual usage. Plaintiffs, however, assert that § 160.05 is unconstitutional because no notice is provided when a width greater
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than that of аctual use is taken and that, as a result, they have been denied property without the due process of law. U. S. Const. Amend. XIV; Minn. Const, art. 1, § 2; Lambert v. Californiа,
As a result of the constitutional provisions cited abovе, we hold that Minn. St. 160.05 does not authorize a township to widen a road acquired by adverse public use beyond that width actually acquired by such adverse use. Privately owned land cannot become public road by adverse use beyond the portion so used merely by a statutory pronouncеment to that effect.
A dedication resulting from adverse public use arises from the fact that such use serves to give the owner notice that, if hе means to dispute the rightfulness of the public use, he must assert his right within a statutory period by physical action or suit. 4 The statute provides a statute of limitations, the running of which estops an owner from denying the existence of a public easement.
Public use cannot be said to apply to lands not actually used. There is' no reason that an owner should know that he is required to dispute the rightfulness of a nonexistent user. A property owner thus reсeives no notice as to a public claim on any property in excess of that which has actually been used. Thus, a dedication by public use cannot constitutionally exceed the amount of actual dedication. Accord, Eager v. Mackie,
As a result, § 160.05 may operate to dedicate a road by public use only to the extent of actual use over the statutory period. The boundary of a public highway acquired by public use is a question of fact to be determined by the appropriate finder of fact. Arndt v. Thomas,
While оur decision today will limit the dedication of public roads by adverse public use to the actual extent of such use, it will not prevent governmental bodies from upgrading, widening, or improving public ways. A governmental body may always accomplish such goals by the process of eminent domain. Eminent domain proceedings, however, effectively provide private landowners with notice, due process of law, and the opportunity to secure just and fair compensation in return for the property taken.
Accordingly, the decision of the trial court is reversed and this matter is remanded for proceedings consistent with this opinion.
Reversed and remanded.
Notes
See, Casner, American Law of Property, Yol. II, § 9.50.
Plaintiffs also argued on a motion for a new trial that the contractor had trespassed on their property by engaging in construction more than 2 rods beyond the centerline of the existing roadway. The trial court granted plaintiff Schaust a new trial on the question of damages for any such construction.
The present appeal is not the first occasion this case has been before the court. In Schaust v. Town Board of Hollywood Township,
We neither express nor imply an opinion as to whether the dedication-by-use statute (Minn. St. 160.05) requires actual notice as contrasted with constructive notice. See, generally, Mullane v. Central Hanover Bank & Trust Co.