specially concurring.
I concur in the result and generally with the case law discussed in the opinion authored by Justice Vande Walle, but because of the unique situation I believe some additional comments and observations are appropriate in this case.
One of the real parties of interest even though not named as a party litigant is the City of Mandan. Unfortunately, the material interests of the City of Mandan have not been brought out or developed except indirectly by employees or officials of the City as witnesses.
Appellant James Rask, from all indications, used the Keidel road to his advantage and when it appeared some of his property was involved or could be impressed with a public use he changed his position substantially.
The Keidel road has been determined to be a prescriptive road. The only question remaining is its width. It will be interesting to observe if Rask will use the Keidel road once this litigation is over. It is also interesting to note that Keidel, who is to stand to lose most of the land to the prescriptive road, is not taking any adverse position to the question under litigation.
The majority opinion relies heavily upon Barfnecht v. Township Board of Hollywood Township, 304 Minn. 505, 232 N.W.2d 420 (Minn.1975), and the statement “public use cannot be said to apply to lands not actually used.. . . ” The term “actually used” is not synonymous with “surface actually trav*411eled.” The term “actually used” out of necessity must include the shoulders, ditches, and slopes that are needed to support the actually traveled surface. In this respect the findings of fact are lacking and maybe the evidence is also lacking. Be that as it may, I don’t believe a super-technical application regarding the width of the road is intended. Rather, a pragmatic sensible approach is more appropriate.
The instant case does not involve a road by prescription out in the country or wide open spaces, but rather a road within the city limits. The very road being contested by one of the parties may well be the road that will give, or gives, value to the parties’ adjacent property. This can be illustrated by asking the rhetorical question, “Who would object the strongest or loudest if the city decided to abandon the road?” It wouldn’t be surprising if it were the party that now objects the strongest to the width of the prescriptive road involving a small part of his land.
Technically, the road in question is not a platted road and as such the ordinance does not apply, but the benefit to the adjacent landowner is the equivalent as if the road were a platted road. It is similar to an area designated as a development area within the city limits. This is an instance where the party attempts “using” the law to avoid a contribution to a development area which is to the party’s benefit or from which the party expects to benefit.
To me a certain inconsistency exists in the rationale and position advocating and holding the road down to the narrowest conceivable width because of technicalities, and then suggest if a greater width is needed that it be obtained by eminent domain at a cost to the public where the overwhelming benefit inures the landowner involved in the dispute about the width of the road. To me this is a situation which is comparable to a developer of an area within the city limits.
I do, however, agree that the findings need to be attuned to the actual situation if the evidence is there to support the finding. If, however, the evidence is inadequate a further evidentiary hearing should be held.