Objects inThe Right Of Way
(written by Eric Hedtke, MATIT General Counsel, from MN Township News May-June 2015)
We receive many questions about the use of the right of way on town roads. Some of this confusion stems from the fact that the land on which nearly all town roads are located is not owned by the township; it is owned by the adjacent landowners.
The general rule is that the adjacent landowners can engage in activities within the right of way that have a minimal impact on the maintenance and safety of the right of way. So, a landowner can plant grass and low growing flowers in a road right of way. Uses beyond that start to negatively impact the maintenance or safety of the right of way.
Many questions go beyond vegetation and are about specific obstructions that are placed in the right of way. The most common obstructions asked about are fences, landscaping boulders and mailboxes. Specific rules exist regarding mailboxes in the right of way. The questions usually raised by town officers about obstructions are: should we be concerned; can we stop this; and, what should we do about it.
Towns should always be concerned when a landowner places an obstruction in the right of way. This is because a town is a road authority and therefore has liability for injuries that result from obstructions it knows to exist in a right of way.
And as the road authority, towns do have the authority to control activities within town road right of way. The first thing that a town should do when faced with an object in the right of way is make sure that it is actually in the right of way. For recorded roads this is simply verifying with the county recorder that the right of way was recorded at 66 feet wide. However, the right of way of town roads established by use and maintenance under Minn. Stat. §160.05 are only as wide as the actual use and maintenance of the road.
State law specifically declares it unlawful to place or maintain a building or structure in the right of way, place or maintain advertisement in the right of way, and to plow or perform other detrimental operation in the right of way. Minn. Stat. §160.2715. That statute also makes it unlawful to place a fence within a road right of way. The only exception is for a lane fence that leads to the ends of a livestock pass. There is no exception that allows a temporary or seasonal electric wire fence.
After ensuring that an object is within the right of way, a town board should make a finding that the object is in fact an obstruction to the use or maintenance of the right of way. Such a finding should be based upon the character of the obstruction, the use of the road, the hazards or difficulties that are created, and should make reference to the prohibitions of Minn. Stat. §160.2715, if applicable. The discussion of this should be reflected in the minutes of that meeting.
Removal of an Obstruction
After making a finding that an obstruction exists in the right of way, the town has a decision to make on how to proceed. As a town attorney, my recommendation is that no object should ever be allowed to remain anywhere in a road right of way.
The steps that should be followed are that a town should: give notice to the property owner that the object is an obstruction; tell the owner that they must remove the obstacle by a specific date (a reasonable amount of time); tell the owner that after that date the town will remove the object and charge the owner for the costs of removal. The notice should be delivered personally or by certified mail.
Of course the first time a landowner hears from the township shouldn’t be by certified mail. Many issues can be resolved by first having a conversation with a landowner about the town’s concerns. It can be helpful to remind the landowner that they too have liability for any injury that is caused by the obstruction.
If an owner fails to remove the obstacle, the town should proceed with deliberate caution. A call to the town attorney should be made before the town goes any further. There are many things about removing an obstruction that could get a town into trouble. One is that when a town removes an obstacle it must work within the right of way or it could be trespassing. Another thing to remember is that the town could be responsible for unreasonable damage or destruction of the object that occurs during and after removal. Your town attorney should help you avoid these and other potential problems.
I recognize that simply saying that no obstructions should be allowed in the right of way quickly runs into real world considerations. For example – from recent phone calls from different towns – a landowner hired a company to install an iron fence using brick columns instead of posts. The builder placed the fence a short distance into the right of way and removal of the fence would involve substantial cost. The town was not eager to order removal of the fence.
In such circumstances a town has the option of entering in to an encroachment agreement with the landowner. Basically, an encroachment agreement gives a landowner permission to maintain an object in the right of way in exchange for assurances made to the town. Often the assurances given to the town include the landowner paying for the costs of removing the object if required for road maintenance, the town having no liability for damage it may do the object, and the property owner indemnifying the town from lawsuits involving the object with proof of insurance coverage that protects the town. Encroachment agreements are only appropriate when the threat to public safety or impact on maintenance is small. As with all agreements and contracts, the town’s attorney should be involved before it is signed.
Mailboxes have a right to be within the right of way. However, there are limitations on the structure of mailboxes. On roads with speed limits greater than 40 mph. mailboxes with more than one vertical support or containing more than two mailboxes are considered hazards.
Mailboxes with supports that don’t meet certain breakaway standards are also hazards. Wooden supports bigger than 4 inches square or if round, 4.5 inches in diameter and metal supports weighing more than 4 pounds per vertical foot do not meet the breakaway criteria. Examples of illegal supports include filled milk cans, brick structures, plows and concrete filled pipes.Minn. Rule 8818.0300.
Minnesota law has specific limitations on how nonconforming mailboxes can be removed. Specific notice must be given to the owner either in person or by certified mail. A town must give the owner 60 days to remove the hazardous mailbox. If, after that 60 days the town has to remove the mailbox it must install a replacement. The town may not charge the owner more than $75 for this removal and replacement. Minn. Stat. §169.072.