Lack of written easement blocks Appley-Von Hagel Wetlands access

Posted April 11, 2013 at 5:00 am

By Julie Ann Madden

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Doug Maurstad of rural Alcester, S.D., blocked access to the Akron’s park, the Appley-Von Hagel Wetlands off S.D. Highway 48 on the west side of the Big Sioux River.

As sometimes happens when a property is sold — what adjacent property owners think they have is not legally documented.

That appears to be the case of the Appley-Von Hagel Wetlands property, located just off South Dakota Highway 48 on the west side of the Big Sioux River.

Appley and Von Hagel family members donated the property to the City of Akron after the 1993 Floods. On March 20, 1997, Akron councilors accepted a deed for 60 acres from the Appley family and on April 16, 1988, they accepted a deed for the 5.25-acre George Von Hagel property from his niece, Mabel Huldeen.

Last year, Doug and Cathy Maurstad of rural Alcester, S.D., inherited the adjacent property from her mother’s estate.

When Maurstad began the procedure to remove a dilapidated garage and build a new one on the site, he learned he needed to meet safe egress and ingress and flood plain requirements.

“Per the State of South Dakota, I have to raise the road 4 feet to be above the flood stage level,” said Maurstad, who received permission from South Dakota Department of Transportation officials to improve the property’s driveway which is in the state highway’s right-of-way.

He also has received a building permit from Union County Planning Director Dennis Henze for construction of the garage.

“A by-product of this is that the road will act as a berm, preventing our property from future flooding,” said Maurstad, adding he also has to have permission from the U.S. Army Corps of Engineers since in meeting flood plain construction requirements, the raised driveway may change water flow in the event of a flood.

In reviewing legal documents, Maurstad discovered the road leading into the Appley-Von Hagel Wetlands is an abandoned road and the road’s access point is located on his property. He hasn’t found any written document stating the city has an easement for access.

With the Appley-Von Hagel Wetlands being a public area, it means the public is crossing our property to get to the city’s Appley-Von Hagel Wetlands, said Maurstad, noting it’s not only vehicle traffic but bicyclists and pedestrians. Some people have played paint ball games, had campfires and parties back there.

After talking with Akron Parks & Recreation President Bob Brown and City Attorney David Stuart, Maurstad blocked the public’s access across his private property.

“It’s a liability issue,” said Maurstad. “There is no access across our property until city officials and we reach an agreement on an easement.”

“It’s been a month and city officials have not bothered to contact me,” said Maurstad, who has requested the matter be placed on the Akron City Council’s April 9 agenda. “I am not denying them an easement — city officials and we haven’t discussed an easement (as of press time Monday afternoon).”

Akron Public Works Director Gary Horton declined to comment on the matter.

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