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755 N.W.2d 1, l'4; 2008 Minn. LEXIS 417, 17
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<br />"exceeded its powers and .. attempted to overlay a public easement with a private easement." The court stated that "Glass
<br />cannot, by grant from a public authority. acquire rights in a dedicated public easement in derogation of the public's ultimate
<br />easement rights or which burdens the adjoining servient estates in excess of the burden imposed by the plat dedication."
<br />The court ordered that Glass and the City he permanently enjoined front developing 40th Street "except by proper
<br />legislative enactment and subsequent development of a public thoroughfare" and that Glass "fully restore the property to
<br />its prior condition" within 45 days.
<br />The district court entered judgment in favor of the Bolens, and Glass and the City of Duluth appealed. After granting the
<br />City's motion to consolidate the appeals, the court otappeals affirmed, the district court 18J but modified the judgment
<br />to provide that Glass be required to restore only those parts of 40th Street where he is not the underlying fee holder. Bolen
<br />r. Mass, 737 N.W.211 856, 868 (Minn. App. 2004 We granted Glass's petition for review.
<br />1.
<br />The tirst issue we address is whether the City of Duluth had the authority to issue a permit providing for the construction
<br />of private improvements on 40th Street, HN1 r 5 ( r j• 5 )5 s rd. (Supp, 2007), provides as follows;
<br />"Land donated for any public use in any municipality shall be held in the corporate name in trust for the purposes set forth
<br />or intended. A street, road, alley, trail, and other public way dedicated or donated on a plat shall convey an easement only."
<br />HN2 Construing a prior version of qj, n S 505.01, we stated that "the legal effect of a plat dedication is a conveyance
<br />in trust to the municipality of a terminable easement only, in any area designated in the plat for public use. and the fee title
<br />thereto remains in the dedicator, subject to the easement."Etzier E. Mondate, 266 Afirni. 353, 363.64 3 • OH jQ
<br />(1963). Because the Oatka Beach Addition plat states that the designated streets are "dedicate(dI (°9J to the public use,"
<br />a public easement over 40th Street was created upon the Duluth Common Council's acceptance of the plat in 1902.
<br />HN3 As to the ownership of the underlying fee interest, we have recognized "that any abutting landowner owns to the
<br />middle of the platted street or alley and that the soil and its appurtenances, within the limits of such street or alley, belong
<br />to the owner in fee, subject only to the right of the public to use or remove the same for the purpose of improvement."
<br />Kocherar e City of G'ilberr, 273 Minn. 274, 276, 141 N. W.21 24, 26 (19661; .we also Kooreny Darnpier,Ouird Mortuary,
<br />Inc., 207 Minn. 367, 370, 291 N.W. 611, 612 (1940) (stating that the abutting "landowner's fee extends to the center of the
<br />street or highway. subject only to the public easement"). We have also explained that HN4 "when a street is dedicated by
<br />plat. a city may choose its own time to occupy. open. and use the street." Vffl. of Al&ford t: Wilson, 304 Minn. 250. 252,
<br />30 N,W,2d 458, 459 (1975).
<br />"The rift] general rule is that,HN5 in matters of municipal concern, home rule cities I*5.1 have all the legislative power
<br />possessed by the legislature of the state, save as such power is expressly or impliedly withheld." Slaw r, City of Crookston,.
<br />252 Minn. 526, 528, 91 N. W.2d 81, 83 r/95,5). The Duluth City Charter grants the City "all powers, functions, rights and
<br />privileges usually exercised by. or which are incidental to, or inhere in, municipal corporations of like power and degree"
<br />and "all municipal power, functions, rights, privileges and immunities of every name and nature whatsoever." Duluth,
<br />Minn., City Charter, ch. I, § 1. HN6 The charter also states that "Wile council may by ordinance permit abutting owners
<br />to make use of portions of public highways not physically being used or occupied by the public upon such terms and
<br />conditions and by such procedure as the council, in each such ordinance, may provide." Id., ch. Xill, § 100(d).
<br />Duluth Ordinance No. 7055, § 1. provides as follows:
<br />11N7 In addition to other authority possessed by the eity engineer, there is hereby conferred upon the city engineer
<br />the authority to issue special permits to private parties to make local improvements in, upon or under rift the
<br />public highways and public grounds ot' the city. as such local improvements are defined and authorized by Chapter
<br />IX of the City Charter . .
<br />Duluth. Minn„ Legis, Code, § 45-84 (1959). /INS "Ordinances .. . are presumed to be valid, and are not to be set aside
<br />by the courts unless their invalidity is clear," State e Thubert 126 Minn. 371, 372, 148 N.W 281. 282 (19141,
<br />The adoption of Ordinance No. 7055, § I. was within the City of Duluth's authority as set forth in the Duluth City Charter,
<br />The City's issuance of the private improvement permit, in turn, was authorized by the ordinance, which applies to all
<br />MARTIN NORDER
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