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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

The Road Taken

From muddy trails to interstate highways, a history of Minnesota’s roads and the role courts and governments played in it

Photo: Minnesota Historical Society – Road construction, Pine County, MN – 1910

It wasn’t always this way. The idea of getting in a car and driving on a paved road from Worthington to Grand Portage, or from Winona to Hallock, is a mid-20th century phenomenon. Minnesota started out with a poor system of trails, then advanced to dirt roads, and eventually developed county and township roads into a highway system that connects each one of us to almost anywhere in the state. The story of how we got to the paved highway system is fascinating even today. 

When white settlers arrived in what would become southeastern Minnesota (then Wisconsin Territory), patchworks of trails often started at no particular place and abruptly ended. These trails were important for the Native Americans to get to a river, a lake, or maybe an open area for hunting, but these trails did not suit aggressive settlement by Europeans. For example, the 1830 Treaty of Prairie du Chien established the boundary between the Sioux (Dakota) in southern Minnesota and the Chippewa (Ojibwa) along what must have been a trail of sorts described to: 

“commence at the Chippewa River, a half a day’s march below the falls; and from thence it shall run to Red Cedar River, immediately below the falls; from thence to the St. Croix River, which it strikes at a place called the Standing Cedar . . . .” 

You get the point.

As white settlement proceeded, a system of trails evolved to connect new towns and villages. Most of us are familiar with the Red River Ox Cart Trail, which was not a single path. Rather, it was probably parts of three trails: one through the Minnesota Valley to the Red River (Lac Qui Parle Trail), one through the Crow Wing River Valley (the Leaf Lake Trail) and then west to the Red River, and the third through the Sauk River area, which connected St. Paul to St. Cloud, and then northwest on the Fort Abergrome Trail. By one account there were over 1500 trails in Minnesota by 1809. But there were no maps. People found the trails by hearsay and luck. 

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The U.S. Government Land Office surveyors were supposed to show the trails in their surveys. Some did, which gives us an idea of the trail system, particularly along the eastern bank of the Mississippi from Fort Snelling through St. Cloud up to Fort Gaines (now Camp Ripley).  Other prominent trails included the Spirit Lake Trail from the Mankato area through southwest Minnesota to Spirit Lake, Iowa, and the St. Anthony Falls-Fond Du Lac Trail, leading north to Lake Superior.

The earliest government-funded trail or road appears to have been laid out around 1854. It was referred to as a military road, and it connected Point Douglas (near Hastings) through Fort Snelling to St. Cloud and north to Fort Gaines, with a branch going further north through Stillwater to Lake Superior.

In Minnesota, first as territory and later as state, townships and counties—but not the state—were responsible for building roads. In fact, a state constitutional provision prohibited the state from making “Internal Improvements.” That included roads. More on that later. 

General Laws of Minnesota, now codified in Minnesota Statutes Section 164.07, granted towns a quick and efficient method to condemn land, a method that is still available today. It involved a summary procedure in which eight voters who owned real estate within three miles of the road would present a petition to the town board. The town board gave notice to the affected landowners, who were usually more than happy to have the town build and maintain a government road to their land. A Road Order was signed, and any damages paid. 

Town roads were laid out in the familiar north/south and east/west grid pattern along government section lines. This made sense because the government sold land by quarter section, and settlers needed access to the property they had purchased. Town roads were often named after the family who lived along the road. For example, people in the township would know that the Hibbard Road ran past the Hibbard farm. And Mr. Hibbard was probably a town board supervisor who helped lay out the road to his land. Some town roads followed an existing trail, especially if there were wetlands on the government section line. People were not dumb when it came to building roads. Sometimes a Road Order would lay out a straight road along a section line, but the road itself would be built around a high area, lake, or other wetland. This can cause problems today in cases where the right of way established by a Road Order does not follow the actual path of the road as built. 

Another benefit of building a town road on a section line was that roads in adjoining towns also built on the section line would meet to allow for a continuous right of way through both towns. Eventually, some town roads were taken over by the county, and piecing together town roads into county roads provided connections from farms to villages.

Town and county roads were fine for local travel, when all people wanted was access to their local railroad stop or village. Problems arose when people wanted to go to a village in the next county. There was no way for a county board to build a road beyond the county line. 

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The solution became “judicial roads.” A judicial road could be constructed between counties. In 1872, the Legislature authorized the district court to lay out and establish judicial roads. Twenty voters in a county could petition the district court judge. The judge would appoint three commissioners to determine the right of way and assess damages. All parties were notified, a hearing was held, and the court issued an order to establish the road and assess damages. The court would then send the bill for road construction and damages to the county. Judicial roads, too, had their limitations. And county boards were not happy to pay to construct a road over which they had no control. 

The biggest problem facing the state of Minnesota in constructing a statewide road system was the state constitutional prohibition on internal improvements. The state could raise funds for public roads by selling land it had received from the federal government for the purpose of making interval improvements. But at that time, Section 5, Article 9 of the Minnesota Constitution prevented the state from enacting a general appropriation for “internal improvements.” This is a long-forgotten argument. Today we take it for granted that both the state and federal government should be involved in large projects that benefit many communities. The prohibition on internal improvements dated back to the beginning of the country. We hear echoes of it today, with arguments that limited government is best, and that public projects lead to socialism and paternalism. Besides, people in one part of the state still resent their tax dollars being used to help people in another area. Yet now as then, the people most opposed to government projects are often the loudest voices demanding that their own roads be maintained.

Early on the Minnesota Supreme Court decided that the prohibition against funding internal improvements did not apply to local governments. By the early 1900s, Minnesotans began purchasing automobiles and demanding roads better than the mud-packed trails maintained by the towns and counties that often ended abruptly at an adjoining town or county line. The Legislature responded by authorizing a general appropriation to construct and maintain roads. On July 9, 1909, the Minnesota Supreme Court struck down the appropriation as a violation of the constitutional provision against internal improvements. (Cooke v. Iverson, 108 Minn. 388, 122 NW 251 (Minn. 1909).) 

On July 29, 1909, based upon the Cooke decision, the Minnesota attorney general issued an opinion that a state appropriation for a road though Itasca State Park, from Bagley to Park Rapids, was an internal improvement and not allowed. (In the same opinion, the attorney general decided in favor of the appropriation for the State Fair grandstand, because the State Fair Board was a part of the state government.) 

The Supreme Court justices and the state attorney general may not have owned automobiles, but lots of citizens did. The argument against internal improvements was not won by a political discussion or by elected representatives. It was won by the motor vehicle. While the constitutional prohibition against internal improvements prevented the Legislature from appropriating money from the state’s general fund for roads, a 1898 amendment to the Minnesota Constitution provided for the establishment of a Highway Commission to build and maintain roads and bridges. It gave the Legislature limited authority to tax one quarter mill on property. In 1906, the state Constitution was again amended to provide for a “State Road and Bridge Fund,” which gave a little more money to the Legislature.

After the Cooke v. Iverson decision, business leaders realized that Minnesota would need state highways to prosper. The big change happened, and the modern era of the Minnesota Highway System came about, thanks to a 1917 constitutional amendment called the Babcock Amendment (or the Good Roads Amendment). We no longer celebrate Good Roads Day on the third Thursday in June, but starting in 1913, it was a big deal for Minnesotans. With the adoption of the Babcock Amendment, the state was authorized to impose a license tax on vehicles to fund roads and bridges. The State Highway Trunk System became a reality. The amendment spelled out a network of 70 routes and provided a numbering system. All county seats were to be connected by a state highway. 

Even after the Babcock Amendment was adopted, there were challenges to the method of taxation and the enabling legislation. By this point, I suspect that Supreme Court judges had automobiles, because the justices generally upheld the laws and allowed the highway system to be built. 

At the same time the federal government was beginning to directly fund public road construction and improvements. On July 16, 1916, Woodrow Wilson signed the first Federal Aid Road Act. It provided cash to pay states up to half the cost of constructing and maintaining their road systems.

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By the late 1950s, the Minnesota Department of Transportation Road Funding System that we know today was pretty much in place. With better roads came the demand for better maps and directions. The original highways did not start out with numbers, but with names. Recall that the trails, too, had names and not numbers. 

In Minnesota we had the Jefferson Highway, which was roughly I-35 from southern Minnesota into Minneapolis, then north on U.S. Highway 10 through St. Cloud to Moorhead. The Yellowstone Trail ran roughly east/west through southern Minnesota generally along today’s U.S. Highway 14. The Minnesota Scenic Trail was roughly U.S. Highway 2 in northern Minnesota, and the King of Trails is today roughly U.S. Highway 59. A motorist followed symbols on signs tacked to fences and telephone poles to guide the way.

The 1917 Babcock Amendment designated road numbers for the highways, but numbers were still not commonly used until the late 1920s.

The earliest mapping or travel guides were the Automobile Trail Guides published in the 1920s. The most useful was the Automobile Bluebook, roughly the equivalent of today’s Google Maps. These guide books provided an almost mile-by-mile narrative of how not only to get to a town, but also through it and on to another. They also provided information on places to eat and sleep, and where to find an auto repair shop. 

We probably owe the modern highway numbering system to Rand McNally, which published the first road maps of Minnesota and applied the modern numbering system, with odd numbers being the north/south highways, and even numbers the east/west highways. The Minnesota Highway Department started to publish official maps in the 1920s. Merchants, banks, filling stations, and hotels would distribute pocket maps and trail guides to customers.

The last major change was the creation of superhighways or the Interstate Highway System. At first the system had a great deal of support, especially outside urban areas. By the late 1960s, however, progress slowed in urban areas because neighborhoods were being destroyed. Whatever your view, and however devastating it was to the residents displaced by the interstate system, driving on I-94 from Minneapolis to St. Paul is much easier and quicker than traveling down University Avenue.

 

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The other TRO: Town Road Orders

An outstate practice in real estate and government law often requires lawyers to take a trip back into Town Road Orders. Now and again a town or a county wants to improve a roadway, trim bushes, or cut trees along a road. Sometimes an adjacent property owner will block a road to prevent a neighbor’s parcel from being developed into housing or used as hunting land.

As a general rule if the road right of way as traveled is on a government line, there is probably a road order. You just need to know where to look for it. It could be in the Town Road Book, which most towns do not know they have. But in most cases it is in the town vault. Town Road Orders were supposed to be filed with the county auditor, a fact that many auditors do not know. Sometimes, if you are lucky, there is a town road inventory in the county recorder’s records. In any case, the collective memory of the town board knows that there has always been a road, but it often has no idea how the road was established.

Finding road orders in northern Minnesota presents a different challenge. In many parts of that region, the trees were cut, the land was farmed, and townships were established. At the end of the 1920s, the good weather ended and the depression hit. Farms were abandoned and the towns collapsed. The town roads became part of the county’s road system. Some were maintained, and others were left to go back to a natural state.

For about two weeks of the year, in early November—you guessed it, deer season—Minnesota landowners became very protective of their property, and they do not want trespassers on what is really a public road. Finding an old road order can mean the difference between having public access to thousands of acres of public land or having that land shut off to all except the family that claims to control the access road.

 

DAVID J. MEYERS is a shareholder with Rinke Noonan, St. Cloud. He is certified as a Real Property Law Specialist by the Minnesota State Bar Association, and he serves as Examiner of Titles or Deputy Examiner of Titles for 8 Minnesota counties.

 

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