ROADS: TOWN LINE: MAINTENANCE: County boards may determine division of 

maintenance responsibility for town line road established prior to enactment of authorizing 

statute. Op. Atty. Gen. 379C-8(c). September 1a. 1951 superseded. Minn. Stat.§ 164.12 (1996). 

379C-8(c) 

November 5, I ']98 

David J. Hauser 

Otter Tail County Attorney 

Otter Tail County Courthouse 

Fergus Falls, MN 56537 

Dear Mr. Hauser: 

In your letter you set forth substantially the-following: 

FACTS 

Prior to 1951, there was a six-mile common town road on the boundary 

between Oscar Township in Otter Tail County and Akron Township in Wilkin 

County running along the county line. In 1951, the counties took over the 

northerly five miles of the road. Oscar Township, Otter Tail County, which had 

been originally responsible for maintaining the three miles of the road has 

maintained the one mile remaining since 1951 but feels that Akron Township 

should also be responsible to share the expense. 

In 1951 the Attorney General rendered the opinion that. pursuant to an 

agreement entered between the two towns in I 885. Oscar Township remained 

entirely responsible for maintaining the remaining mile of town road originally 

allocated to it. C'r Atty. Gen. 379C - SC. Septembens,1951. However. Minn. 

Stat. § 164.12. enacted in 1959. now provides that "when part of a town line road 

is taken over as a county highway, the town boards are to divide responsibility for 

the remaining town road equally between them to the extent possible:· 

You then ask substantially the following: 

QUESTION 

In these circumstances. when counties have taken over control and maintenance of a 

portion of a former township road on a town line. who is responsible for maintaining the portion 

of the road not taken ovd? 
David J. Hauser 

Page2 

OPINION 

As noted above, Minn. Stat. § 164. 12, subd. 5 requires the neighboring towns, in such 

circumstances to enter an agreement when a portion of the road is taken over dividing 

responsibility between them. Furthermore, subdivision 6 of that section provides: 

When the town boards cannot agree upon a division as provided in 

subdivision 2 or subdivision 5, or upon the petition of either town board when a 

division previously agreed upon has proved to be inequitable, the county board, or 

where the road is on a county line the county boards of the counties concerned, 

shall determine the proper division ofresponsibility. 

In our view this provision applies to the mile of road lying between Oscar and Akron 

Townships, described in the facts presented. 

it has been argued that. inasmuch as Minn. Stat. § 164.12 did not exist when the counties 

took over five miles of the road in 1951, its enactrnem in 1959 can have no effect upon the 

allocation of maintenance responsibility under the pre-existing 1885 agreement. It is true that 

statutes enacted by the legislature will not be construed to be "retroactive unless clearly and 

manifestly so intended by the legislature." Minn. Stat.§ 645.21. Because of this presumption 

and constitutional prohibitions against impairment the obligations of contracts. statutes are often 

held inapplicable to contrncts in existence at the time of their enactment. See e.g., Jacobsen v. 

Anheuser Bush. Inc. 392 N.W.2d 868 (Minn. 1986). Such is not always the case, however, 

especially in cases involving agreements between units of local governn1ent. As creatures of the 

state. local governn1ents and their contractual relationships with one ano\her do not enjoy the 

same constitutional protectioas from legislative modification as private persons. 

Crescent Township v. Citv of La Crescent. 515 N.W.2d 608 (Minn. Ct. App. 1994), wherein the 

court upheld application or a new statute permitting cities to annex certain property by ordinance. 

notwithstanding a pre-existing agreement between the city and town that arguably prohibited 

such an annexation. 

See e.g., La 
David J. Hauser 

Page3 

In the instant case it seems clear that the legislature intended Minn. Stat. § 164.12, 

subd. 5 to apply to previously existing maintenance agreements. The plain wording of 

subdivision 6 speaks retrospectively in providing for resolution by the county boards "when a 

division previously agreed upon has proved inequitable, ... " (Emph.asis added). At the time it 

took effect in 1959, that language could only have applied to agreements entered into prior tc its 

enactment. Furthermore, the remedial nature of the provision argues in favor of its application to 

pre-existing divisions ofresponsibility. Cf.Olsen v. Special School District #1, 427 N.W.2d 707 

(Minn. Ct. App. 1988) (repeal of damage discount law given retroactive effect due, in part, to 

remedial nature of legislation). We can perceive no reason why the legislature would have 

intended to perpetuate existing "inequitable" divisions ofresponsibility. 

Thus it is our view that, while it is presently the responsibility of Oscar Township to 

maintain the one mile of town line road in question, the Town may attempt to negotiate a 

modification of the 1885 agreement or may seek a reapportionment of responsibilities upon a 

determination by the county boards of Otter Tail and Wilkin counties that the previously agreed 

division has proved inequitable. 

Op. Atty. Gen. 3 79C-8-C, September l 8; 1951 is superseded to the extent inconsistent 

herewith. 

Very truly yours. 

HUBERT H. HUMPHREY JlI 

Attorney General 

KENNETH E. RASCHKE. JR. 

Assistant Attorney General 

AG:62513 ,, I