Ross R. Lundstrom, et al., Appellants,

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1714

Ross R. Lundstrom, et al.,
Appellants,

vs.

Township of Florence,
Respondent,

State of Minnesota,
Defendant.

Filed September 6, 2022
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Goodhue County District Court
File No. 25-CV-20-1325

Charles O. Richardson, Richardson & Richardson, Red Wing, Minnesota (for appellants)

Jessica E. Schwie, Joshua P. Devaney, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and
Larkin, Judge.
SYLLABUS
A deed or other instrument that conveys a fee simple interest in part of a platted
street along with a conveyance of the abutting lot is a “source of title” to that part of the
street for purposes of the Minnesota Marketable Title Act.

2
OPINION
LARKIN, Judge
Appellant landowners challenge the district court’s summary-judgment dismissal of
their declaratory-judgment action regarding the parties’ respective interests in the portions
of two platted, unopened streets that abut appellants’ lots: Barton Street and Bay Street
(the disputed streets). The district court dismissed appellants’ claim that respondent
township’s interest in the disputed streets was extinguished by the Minnesota Marketable
Title Act (MTA), Minn. Stat. § 541.023 (2020), reasoning that the deeds conveying
appellants’ lots are not a “source of title” to the abutting streets under the MTA. The district
court also granted the township’s summary-judgment motion seeking a declaration that the
disputed streets are platted, public, unopened roads; ordered appellants to remove all
“structures, objects, and things” on Barton Street; and ordered the township to mark, and
post signs identifying, the boundaries of the disputed streets.
Appellants argue that the district court erred as a matter of law in determining that
their deeds do not provide a source of title for purposes of the MTA and that they are
otherwise entitled to judgment as a matter of law. By notice of related appeal, respondent
challenges the district court’s denial of its request for costs and disbursements as the
prevailing party. Because the district court erred in determining that the deeds conveying
appellants’ lots do not provide a source of title to the disputed streets for purposes of the
MTA, and because there is no genuine issue of material fact, we reverse in part and remand
for entry of judgment for appellants. In view of this reversal, we affirm the district court’s
denial of costs and disbursements because the township is not the prevailing party.
3
FACTS
This appeal regards platted, unopened streets that abut appellants’ lots in respondent
Florence Township on the western shore of Lake Pepin. 1 The parties stipulated that
appellants Ross Lundstrom and Jean Pontzer own a fee simple interest in lots described by
deed as:
Lot 1, Block 7, and that part of vacated Bay Street lying
easterly thereof, of the Town of Frontenac, according to the
plat thereof on file and of record in the office of the County
Recorder in and for Goodhue County, Minnesota. Said
premises being situate upon Government Lot One of
Section 12, in Township 112 North, of Range 13 West of
the Fifth Principal Meridian; and

Lot 1, Block 3 in the Town of Frontenac, and that part of the
easterly half of vacated Bay Street, which accrues to said
Lot by virtue of said vacation thereof, according to the
recorded plat thereof, on file in the Goodhue County
Recorder’s Office, Goodhue County, Minnesota.

The parties also stipulated that appellant Bruce Hansen owns a fee simple interest in lots
described by deed as:
Lots 3 and 4, in Block 8 in the Town of Frontenac,
according to the plat thereof on file and of record in the
office of the County Recorder for Goodhue County,
Minnesota.2

1 Lake Pepin is “a widening of the Mississippi River which forms the boundary between
Minnesota and Wisconsin at this point.” Schaller v. Town of Florence, 259 N.W. 529, 530
(Minn. 1935).
2 The deeds and other documents on which appellants rely for chain of title extend back
more than 40 years. The validity of those documents is undisputed.
4
The approximate layout of the lots and disputed streets is shown below. Appellants
use the disputed streets as a garden and yard. The township contends that an electrical
utility pole and lines are located in the Barton Street right-of-way.
Barton Street and Bay Street run perpendicular to each other and intersect at Lake
Pepin. The portion of Barton Street at issue lies between the Lundstrom-Pontzer and
Hansen properties and ends at Lake Pepin. The portion of Bay Street at issue lies between
Hansen’s property and Lake Pepin. The township’s interest in the disputed streets is based
on the Plat of Westervelt, which was recorded in 1857 and renamed the Plat of Frontenac
in 1859. The Plat of Frontenac “dedicate[d] to public use the streets and alleys as laid out”
in the plat. Since 1857, some of the platted streets have been vacated in whole or in part,
including the portion of Bay Street located between the two Lundstrom-Pontzer lots, which
was vacated in 1920. The parties stipulated that when platted streets were vacated, “the
land accrued to adjacent lots.” The stipulation states that the disputed portion of Barton

5
Street has not been vacated; it does not state whether the disputed portion of Bay Street has
been vacated.
Appellants sued the township and the State of Minnesota, seeking a declaration that
appellants are the fee owners of the disputed streets “free of any interest in Defendants
herein except those proprietary and sovereign rights of the State of Minnesota.” 3 In its
answer, the township denied that its interest in the disputed streets was extinguished by
operation of the MTA, as appellants had alleged, and asked the district court to order
appellants to remove all structures, objects and things (including trees) on Barton Street
“for their respective shares which is up to the middle of the right of way.”
Following discovery, the parties filed cross- motions for summary judgment. The
district court granted the township’s motion and denied appellants’ motion. The district
court recognized that “Minnesota case law has held that landowners own the fee title to the
center of abutting, abandoned streets” and reasoned that, “based on this case law, it would
seem [appellant s] have a source of title to” the disputed streets. Yet the district court
concluded that “under the MTA, landowners do not have a source of title in abutting roads
when those roads are not [expressly described] in the deed.” Given its ruling, the district
court did not determine whether the township was “conclusively presumed,” under the
MTA, to have abandoned its interest. The district court’s order denied the township’s
request for costs and disbursements without explanation.

3 The Minnesota Department of Natural Resources (DNR) filed a letter indicating that it
would not file an answer provided the state’s sovereign and proprietary rights with respect
to Lake Pepin were addressed in the final order and decree. The DNR did not participate
further in district court or in this court.
6
Lundstrom, Pontzer, and Hansen appeal the denial of their motion for summary
judgment and the grant of summary judgment to the township. By notice of related appeal,
the township challenges the denial of its request for costs and disbursements.
ISSUES
I. Is a deed or other instrument that conveys fee title to part of a platted street along
with the abutting lot a source of title to the street under Minn. Stat. § 541.023, subd.
1?

II. Does a utility pole, together with electrical lines, establish the township’s possession
of the disputed streets under Minn. Stat. § 541.023, subd. 6?

ANALYSIS
This appeal involves application of the MTA to the township’s interest in platted,
unopened streets. “The declared policy of the Marketable Title Act is to prevent
restrictions on uses [of land] that have not been reasserted as a matter of record within the
last 40 years from ‘fettering the marketability of title.’” State v. Hess, 684 N.W.2d 414,
422 (Minn. 2004) (quoting Minn. Stat. § 541.023, subd. 5 (2002)). “The MTA applies to
every property interest ‘founded by any instrument, event or transaction that is at least 40
years old.’” Sampair v. Village of Birchwood, 784 N.W.2d 65, 68 (Minn. 2010) (quoting
Minn. Stat. § 541.023, subd. 2(a) (2008)). Specifically, the MTA applies to town roads
established by order of the town board. Township of Sterling v. Griffin, 244 N.W.2d 129,
133 (Minn. 1976) (“[T]own roads are not exempt from the application of the [MTA].”).
The MTA also applies to town roads established by statutory dedication. Ravenna
Township v. Grunseth, 314 N.W.2d 214, 219 (Minn. 1981) (applying Minn. Stat. § 160.05,
subd. 1 (1980)). And the MTA applies to streets—like those at issue here—dedicated to
7
the public by plat. In re Application of Moratzka, 974 N.W.2d 266, 269, 273 (Minn. App.
2022), rev. granted (Minn. June 29, 2022).
Generally, for the MTA to extinguish an interest in real property: (1) the party
invoking the MTA must have a “claim of title based upon a source of title, which source
has then been of record at least 40 years,” and (2) the person against whom the MTA is
invoked must be “conclusively presumed” to have abandoned all interest in the property.
Wichelman v. Messner, 83 N.W.2d 800, 807 (Minn. 1957) (quotation omitted) (syllabus by
the court). As explained by our supreme court:
By operation of the MTA, when X holds property in fee simple
that has been of record for over 40 years, and Y claims an
interest in that property that is also at least 40 years old, then
Y, or Y’s predecess ors in interest, must have filed the
statutorily prescribed notice of Y’s claim within 40 years of the
creation of the interest Y now claims.

Sampair, 784 N.W.2d at 68 (citing Minn. Stat. § 541.023; Wichelman, 83 N.W.2d at 811-
13, 819-20). An exception to the notice requirement provides that the MTA does not “bar
the rights of any person . . . in possession of real estate.” Id. at 69 (quoting Minn. Stat.
§ 541.023, subd. 6 (2008)).
The issue in this case is whether, under the MTA, a deed conveying a fee simple
interest in a platted lot can serve as a “source of title” to the abutting street and if so,
whether utility fixtures can support the township’s claim to possession of the disputed
streets. The issue is presented in the context of a summary judgment ruling. On appeal
from summary judgment, appellate courts “review de novo whether there are any genuine
issues of material fact and whether the district court erred in applying the law.” Id. at 68.
8
We view evidence in the light most favorable to the party against whom summary judgment
was granted. Id.
I.
Appellants contend that the district court erred by concluding that their deeds do not
provide a “source of title” to the disputed streets within the meaning of the MTA. They
argue that, as a matter of law, they hold a fee simple interest in the disputed streets by virtue
of their ownership of abutting lots in the same plat, and that deeds that do not expressly
describe abutting streets can be a “source of title” to the streets for purposes of the MTA.
The township does not expressly argue that appellants lack a fee simple interest in
the disputed streets. Rather, it makes the narrower argument that an interest in the streets
not expressly described in deeds to the abutting lots cannot serve as “source of title” under
the MTA.
Minnesota caselaw provides a general presumption that the conveyance of a lot
abutting a platted street conveys with the lot a fee interest to the center of the street. See
In re Robbins, 24 N.W. 356, 357 (Minn. 1885) (“So a deed of lots conveyed as represented
in a town plat, is presumed to include a grant of the soil to the center of the street, and it
passes as parcel of the land and not as an appurtenant.”); see also Wait v. May, 51 N.W.
471, 472 (Minn. 1892) (stating “where lots are conveyed in accordance with a town plat,
the deed is presumed to include a grant of the soil to the center of the street, subject to the
public easement.”); Bolen v. Glass, 755 N.W.2d 1, 4 (Minn. 2008) (“As to the ownership
of the underlying fee interest, we have recognized that any abutting landowner owns to the
middle of the platted street or alley and that the soil and its appurtenances, within the limits
9
of such street or alley, belong to the owner in fee, subject only to the right of the public to
use or remove the same for the purpose of improvement.” (quotation omitted)).
The reasoning underlying the presumption of title to the center of the street is that
“adjoining owners are presumed to have originally furnished the land in equal proportions
for the sole purpose of a highway.” Robbins, 24 N.W. at 356. The presumption “yields
when a different intention is clearly manifested, or when the evidence shows there could
be no foundation for it, as where the grantor at the time owned no part of the street, the
same being laid wholly on the land of another.” Id. at 357; see also White v. Jefferson, 124
N.W. 373, 374 (Minn. 1910) (explaining that fundamental principles of contract law
determine whether owner intended to sell or retain fee interest in abutting street); Betcher
v. Chicago, M. & St. P. Ry. Co., 124 N.W. 1096, 1099 (Minn. 1910) (noting when “a deed
of land abutting upon a street or highway expressly makes the nearer external line thereof
. . . the boundary line of the tract conveyed,” the grantor did not convey title to the abutting
street through the deed to the tract).
Additional circumstances may affect the extent of the interest in the street presumed
to transfer with the conveyance of an abutting lot. See, e.g. , Lamprey v Am. Hoist &
Derrick Co., 266 N.W. 434, 435 (Minn. 1936) (“Where land is platted with a river as one
of the boundaries . . . and only a dedicated street [separates lots from] the river, the
conveyance . . . of the lots . . . carries the fee title to the entire street in front of the lots . . .
subject to the public easement in the street.”) (syllabus by court); Wait, 51 N.W. at 472
(reasoning that fee title to entire street on margin of plat transferred with deed to abutting
lot).
10
Here, the following circumstances are undisputed: (1) appellants own fee simple
interests in their lots, (2) appellants’ lots abut Barton Street and Bay Street, (3) Barton and
Bay Streets were dedicated by plat, and (4) neither Barton nor Bay Street has been vacated.4
There is no argument that the legal descriptions in the chain of title for appellants’ lots
expressly exclude the disputed streets. Nor is there an argument that any other person or
entity owns fee title to the disputed streets. Moreover, in its answer, the township asked
the district court to order appellants to remove all structures, objects and things (including
trees) from Barton Street, “for their respective shares which is up to the middle of the right
of way.” The only apparent basis of “their respective shares [of Barton Street] up to the
middle of the right of way” is the landowners’ presumed fee simple interest to the center
of the street under the well-settled precedent summarized above.
The MTA provides:
As against a claim of title based upon a source of title, which
source has then been of record at least 40 years, no action
affecting the possession or title of any real estate shall be
commenced . . . to enforce any right, claim, interest,
incumbrance, or lien founded upon any instrument, event or
transaction which was executed or occurred more than 40 years
prior to the commencement of such action, unless within 40
years after such execution or occurrence there has been
recorded in the office of the county recorder in the county in
which the real estate affected is situated, a notice . . . setting
forth the name of the claimant, a description of the real estate
affected and of the instrument, event or transaction on which
such claim is founded, and stating whether the right, claim,
interest, incumbrance, or lien is mature or immature.

4 Although the stipulation does not expressly state that the portion of Bay Street abutting
Hansen’s parcels has not been vacated, no party disputes that this portion of Bay Street
(unlike the portion between the Lundstrom-Pontzer lots) has not been vacated.
11
Minn. Stat. § 541.023, subd. 1 (emphasis added).
A “source of title” can be “any deed, judgment, decree, sheriff’s certificate, or other
instrument which transfers or confirms, or purports to transfer or confirm, a fee simple title
to real estate.” Id., subd. 7. Appellants rely on the deeds and other instruments conveying
fee title to their lots as their source of title to the disputed streets. The district court rejected
appellants’ argument, concluding that, under this court’s caselaw interpreting the MTA,
“the abutting streets are not included in [appellants’] deeds” and “landowners do not have
a source of title in abutting roads when those roads are not included in the deed.”
The district court largely relied on this court’s decision in Padrnos v. City of Nisswa,
409 N.W.2d 36 (Minn. App. 1987), rev. denied (Minn. Sept. 23, 1987). In Padrnos, a
landowner sought to extinguish a township’s interest in a platted “unpaved section of road”
abutting the landowner’s resort property. 409 N.W.2d at 37. Padrnos notes that the
landowner had negotiated a reduction in the purchase price when he learned “the
‘easement’ was not included in the resort property” and there was a “corresponding loss in
lakefront footage.” Id.
In Padrnos, this court noted that the landowner “did not purchase the roadway
property when he bought the resort and has not claimed nor has he presented evidence to
support a claim of adverse possession.” Id. at 38. Based on our determination that the
landowner “did not purchase the roadway property,” we concluded that he lacked a source
12
of title to the roadway for purposes of the MTA.5 Id. at 37. Our determination in Padrnos
that the landowner did not purchase the roadway is succinct and fact- specific. It does not
address deed language, and we do not understand it to conflict with longstanding supreme
court caselaw holding that a landowner is generally presumed to take title to all or part of
the abutting street in the absence of evidence of a contrary intent by the grantor. Thus, we
take Padrnos at face value. Padrnos does not hold that a deed to a lot abutting a street
conveys only title to the lot itself unless the deed includes express language including an
interest in the street. Nor does Padrnos hold that a deed to a lot abutting a street cannot
provide a source of title to the street for purposes of the MTA unless the deed contains
express language conveying title to the street.
6
The MTA plainly establishes that “any deed, judgment, decree, sheriff’s certificate,
or other instrument which transfers or confirms, or purports to transfer or confirm, a fee
simple title to real estate” is a “source of title.” Minn. Stat. § 541.023, subd. 7. This source-

5 We also noted “there is sufficient evidence to support a finding the road had been in public
possession since its establishment,” which was the basis for the district court’s decision.
Id. at 37, 39. A previous owner’s petition to vacate the road had been denied because the
road was in fact used for public access to a lake. Id. at 37.
Further, our understanding in Padrnos was that the MTA was designed to provide
a defense, not a platform to assert a property interest. Id. at 38. Subsequent supreme court
caselaw has clarified that the MTA does not function solely as a defense. See Hess, 684
N.W.2d at 427 (determining district court properly granted summary judgment to state in
state’s action under MTA to extinguish landowners’ interest).
6 The district court also relied on Reads Landing Campers Ass’n, Inc. v. Township of Pepin,
533 N.W.2d 45 (Minn. App. 1995), aff’d, 546 N.W.2d 10 (Minn. 1996). In Reads Landing,
we relied on Padrnos to conclude that the MTA was inapplicable, resolved a question of
riparian rights reflected in a syllabus point, and ruled on a question of common-law
abandonment of a public street. 533 N.W.2d at 47-50. The supreme court granted review
to address riparian rights and common-law abandonment and affirmed this court’s decision
on those issues. 546 N.W.2d at 11.
13
of-title definition contains no additional or special requirements for the deed or other
instrument.7 The statutory definition of “source of title” is broad, not limited.
Here, the only basis for the district court’s conclusion that appellants’ deeds are not
a source of title to the disputed streets is that, solely for purposes of the MTA, these deeds
did not transfer title to the disputed streets. We reject this reasoning as inconsistent with
the statutory definition of “source of title” and longstanding Minnesota caselaw on the
presumption of title to abutting streets, and as a misapplication of Padrnos and Reads
Landing.8 We now hold that a deed or other instrument that conveys a fee simple interest
in part of a platted street along with a conveyance of the abutting lot is a “source of title”
to that part of the street for purposes of the MTA. We therefore conclude that appellants
have established a source of title for purposes of their claim under the MTA. There being
no argument for an alternative basis to affirm the grant of summary judgment in the
township’s favor, we reverse the grant of summary judgment to the township.

7 Subject to additional requirements, even an instrument that transfers or purp orts to
transfer a fee simple title from a person who was not the record owner of the real estate can
serve as “source of title.” Minn. Stat. § 541.023, subd. 7; Weber v. Eisentrager, 498
N.W.2d 460, 465 (Minn. 1993).
8 The township also argues generally that, under Minnesota caselaw, public entities have a
permanent right to decide when to open and occupy platted streets. “Minnesota law is clear
that the public has a property interest in platted streets that are undeveloped.” Bolen, 755
N.W.2d at 5. But the question here is not whether the township has rights in the disputed
streets, but whether those rights can be extinguished by operation of the MTA. “[T]he
MTA has the stated policy that ‘ancient records shall not fetter the marketability of real
estate’ and operates to extinguish certain, otherwise-valid interests in real estate if those
interest holders failed to file the MTA’s prescribed notice.” Sampair, 784 N.W.2d at 73
(quoting Minn. Stat. § 541.023, subd. 5).
14
II.
We next consider whether the township has either timely recorded notice of its
interest or satisfied an exception to the notice requirement, such that the township is not
“conclusively presumed to have abandoned” its easement interest. Minn. Stat. § 541.023,
subd. 5. Although the district court did not reach this question, the issue was fully briefed
and argued in the district court and on appeal. Because we conclude it can be resolved as
a question of law subject to de novo review, we reach the question in the interest of judicial
economy. See McGuire v. Bowlin , 932 N.W.2d 819, 828 (Minn. 2019) (addressing
question of law in the interest of judicial economy).
As noted above, the township “must have filed the statutorily prescribed notice of
[the township’s] claim within 40 years of the creation of the interest [the township] now
claims.” See Sampair , 784 N.W.2d at 68. The purpose of the notice requirement under
section 541.023, subdivision 1, is to “confirm the continuation of [the township’s] interest
in property and to eliminate stale claims that may clutter” appellants’ titles. Id. at 69. The
parties stipulated that:
There has not been recorded in the office of the Goodhue
County Recorder, with respect to that part of Barton Street,
Town of Frontenac, lying between Lot 4 Block 8 and Lot 1
Block 7 and extending to Lake Pepin, or that part of Bay Street,
Town of Frontenac, lying between Lots 3 and 4 Block 8 and
Lake Pepin, as depicted in the Plat of Westervelt . . . attached
hereto, a notice as described in Minn. Stat. 541.023, subd. 1.

The township nonetheless argues that because the Plat of Frontenac was executed
and recorded on September 30, 1857, “the Township’s interest clearly fits in the exception
which would prevent any claim of abandonment under the MTA or any use of the MTA
15
against its recorded interest in the subject roads.” Even if this argument is not foreclosed
by the parties’ stipulation that no notice was recorded, it appears to be foreclosed by our
decision in Moratzka, which is pending review before the supreme court. In Moratzka, we
concluded that the recording of a plat by the landowner did not satisfy the township’s duty
to file notice of claim under Minn. Stat. § 541.023, subd. 1. 974 N.W.2d at 274. This court
is bound by its precedential decisions. State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App.
2010) (stating that this court “is bound by supreme court precedent and the published
opinions of the court of appeals”), rev. denied (Minn. Sept. 21, 2010).
The township also argues that it satisfied the possession exception to the notice
requirement. A party claiming possession under Minn. Stat. § 541.023, subd. 6, has the
burden of proving possession. Sampair, 784 N.W.2d at 74. To show possession of an
easement under the MTA, a party must demonstrate “use sufficient to put a prudent person
on notice of the asserted interest in the land, giving due regard to the nature of the easement
at issue.” Id. at 70. The party must prove possession “beginning at the deadline for filing
notice under the MTA —i.e., within 40 years of when the property interest was created—
and continuing through the filing of the relevant action regarding ownership.” Id. at 73.
The township contends that it has established possession because “the subject roads’
right of way is currently being used for the provision of electric utilities to the area.” The
township cites no legal authority for the proposition that an electrical utility’s pole and
lines located in the right-of-way of an unopened street puts a prudent person on notice of
the township’s interest in the street itself, and we are aware of none. In Township of
Sterling, the supreme court held that the township failed to establish possession of a road
16
when it had not taken steps to physically open the roadway and had conducted little to no
maintenance of the roadway. 244 N.W.2d at 133-34. The township’s claim to possession
here is even more attenuated. Although the township mentions “public access to the natural
beauty of the river” as a reason for maintaining its interest in the disputed streets, it does
not claim or point to any evidence that the public has ever used the disputed streets to
access the riverfront. We conclude, as a matter of law, that the township has not identified
evidence of a use sufficient to put a prudent person on notice of its easement interest in the
disputed streets. See Sampair, 784 N.W.2d at 70.
Finally, the township argues that abandonment of a platted public street requires an
affirmative act. In Township of Sterling, our supreme court rejected an argument that the
conclusive presumption of abandonment under the MTA requires an affirmative act of
abandonment. 244 N.W.2d at 133 (rejecting argument that MTA should incorporate
common-law rule of road abandonment).
In sum, the township has neither timely recorded notice of its interest nor identified
evidence that could satisfy the possession exception to the notice requirement. We
therefore conclude that the township is conclusively presumed to have abandoned its
interest in the disputed streets. See Minn. Stat. § 541.023, subd. 5. Accordingly, we reverse
the district court’s denial of appellants’ motion for summary judgment and remand for
entry of judgment in favor of appellants.
DECISION
Because the district court erred in determining that appellants lack a “source of title”
for purposes of the MTA and because there is no genuine issue of material fact that the
17
township is conclusively presumed to have abandoned its interest, we reverse the district
court’s rulings on cross-motions for summary judgment and remand for entry of judgment
in favor of appellants. In view of this reversal, we affirm the district court’s denial of the
township’s request for costs and disbursements.
Affirmed in part, reversed in part, and remanded.