William Mitchell Law Review

Publication Information

31 William Mitchell Law Review 1133 (2004-2005)


This article assesses the significance of Hess for Minnesota’s recreational trail system and the conversion of rails to trails. Part II describes the legal context within which Hess was decided, with particular emphasis on the methodology of constructing ancient deeds to railroads and the public policy underlying the MTA. Part III sets forth the facts giving rise to the Hess decision and details the approach adopted by the court of appeals—an approach which, if affirmed by the supreme court, would have facilitated a parcel by parcel attack on the state’s ownership of its recreational trails and potentially limited the application of the shifting public use doctrine established in Washington Wildlife. Part IV discusses the supreme court’s analysis of the issues, its interpretative methodology, and the normative justification of its approach. Part V concludes that Hess establishes a strong legal and policy foundation for the past and future conversion of rail corridors into recreational trails, promotes the public interest, and avoids plunging the state into a costly parcel by parcel battle to save its contiguous recreational trail system.