IN COURT OF APPEALS
Michael Bolen, et al.,
Michael Bolen, et al.,
City of Duluth,
Filed September 4, 2007
Affirmed as modified
St. Louis County District Court
File No. 69DU-CV-05-660
Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for respondents Michael Bolen et al.)
Bradley J. Gunn, Malkerson, Gilliland & Martin, LLP, 220 South Sixth Street, Suite 1900, Minneapolis, MN 55402 (for appellant Todd Glass)
M. Alison Lutterman, Deputy City Attorney, 410 City Hall, Duluth, MN 55802 (for appellant City of Duluth)
Considered and decided by Willis, Presiding Judge; Randall, Judge; and Ross, Judge.
S Y L L A B U S
The owner of a platted lot within a municipality does not, by virtue of a plat-dedication of land for use as a public street, obtain the right unilaterally to improve and use the dedicated land.
O P I N I O N
These consolidated appeals involve a dispute over a landowner’s right to construct a private driveway on adjacent property dedicated in 1902 to become a public street. The City of Duluth granted Todd Glass a permit to install a driveway on the dedicated, but never-established, “street.” Michael and Deborah Bolen hold the fee to part of the property that constitutes the would-be street. They contend that Glass lacks the right to construct the driveway and the city lacks authority to permit its construction, which they allege constitutes a trespass on their property. Joseph Zajac also owns part of the historically dedicated street, and he also challenges the city’s authority to permit the driveway on his portion of it. The district court agreed with the Bolens and Zajac, and it issued a permanent injunction ordering Glass to restore the property to its prior condition. The city and Glass filed separate appeals, which have been consolidated.
Because the district court accurately determined that Glass lacks the right and the city lacks authority to permit Glass to construct a private driveway on a platted, undeveloped street dedicated to public use, we affirm the injunction issued in favor of the Bolens and Zajac. But because the district court abused its discretion by requiring Glass to remove even that portion of the driveway that lies on his property, we modify the district court’s order to require Glass to restore only those portions of the corridor that are owned by the Bolens and Zajac.
The property owners in this dispute own lots abutting “40th Street” in the City of Duluth’s Park Point neighborhood. The street has never been improved by grading or paving from its natural condition. The short corridor appears as “Interlachen Street” on a certified and recorded plat described as the Oatka Beach Addition, accepted by the city council in December 1902. The 1902 fee owner specifically “dedicate[d] to the public use the streets and avenues herein shown” in accordance with statute. See Minn. Stat. § 505.01 (2006) (authorizing filing of plats, which may include donation of land for any public use); Denman v. Gans, 607 N.W.2d 788, 795 n.2 (Minn. App. 2000) (recognizing that this statute “has been renumbered and subjected to slight language changes but has not been altered substantively for 150 years”), review denied (Minn. June 27, 2000).
In 1909 the city
renamed Interlachen Street as 40th Street, but the city has never developed, used,
or maintained 40th Street as a public roadway.
It has, however, installed a street sign and curb cut, as it has done
with a number of other “street ends” or “paper streets” on Park Point. On paper only, these northeast-southwest running
street ends connect Minnesota Avenue, the primary public thoroughfare on Park
Point, with “Lake Avenue,” another dedicated but unimproved paper street, which
runs northwest-southeast and parallel to Minnesota Avenue along the Lake
Superior shoreline. The city
acknowledges that it “likely [will never] develop”
dispute, owners of the L-shaped parcel that Glass now owns have accessed Minnesota
Avenue by a driveway running along the east border of, and lying entirely
within, that parcel. When Glass
purchased the L-shaped parcel in 1998, he used that driveway. In June 2003, Glass added gravel to extend
the driveway across his property toward the west, effectively connecting all
three lots of his L-shaped parcel with an L-shaped driveway. Glass testified that he “wanted a secondary
vehicular access so that [he] could drive up to the parking pad using the
narrow driveway, but then exit the property using the
In October 2004,
Glass disabled the gravel driveway that had given the property access to
Evidence was presented at trial regarding the historic use of 40th Street. A driveway on 40th Street has always provided access to Minnesota Avenue from the house and garage located on Lot 15, which is currently owned by Zajac. For many years, 40th Street also provided access to a small house known as the “wee” house, located on Lot 1 on the L-shaped parcel. A sidewalk led from the wee house to the driveway that is located on Lot 15 within the 40th Street corridor.
While the parties dispute the extent of the use of 40th Street by the occupants of the wee house and whether that use was by consent of the owner of Lot 15, it is fairly clear that when the wee house was occupied, its residents were allowed to access Minnesota Avenue by parking a vehicle on Lot 15’s driveway on 40th Street and walking to the wee house. The wee house was condemned by the city in 1996 and demolished before Glass purchased the L-shaped parcel in 1998.
It is also quite clear that the various owners of the lots that incorporate 40th Street have sought to maintain the corridor as private, discouraging public use by planting tall grasses, trees, and shrubs within it. The terrain itself presents an obstacle to vehicular travel, with a thirteen- to fourteen-foot elevation from the southwest, which results in a steep embankment within the corridor. Glass disturbed that bank and some of the vegetation when he constructed his city-permitted driveway in 2005.
Following a two-day trial, the district court found that although the plat with its street dedication was recorded in 1902, the city has never “by formal legislative enactment or executive resolution . . . taken steps to develop the platted 40th Street [c]orridor easement as a public street or thoroughfare such that the easement in question remains a ‘paper street.’” The court further found that the Bolens and Zajac,
as to that portion of the 40th Street [c]orridor easement which abuts their respective lots, own the fee title to the property abutting said lots . . . to the centerline of said easement, subject only to the rights of the [city] to accept the “plat dedication” for the purpose of developing a public thoroughfare.
The district court concluded that the city exceeded its power by permitting “a private citizen to develop a public easement for private driveway purposes” because the permit essentially “attempted to overlay a public easement with a private easement, thus creating property rights and property burdens without authority to do so.”
It held that Glass therefore “cannot, by grant from a public authority,
acquire rights in a dedicated public easement in derogation of the public’s
ultimate easement rights or which burdens the adjoining servient estates in
excess of the burden imposed by the plat dedication.” The court permanently enjoined the city and
Glass from developing the
I. Did the district court abuse its discretion by adding a testifying witness as a plaintiff after trial?
II. Does the owner of a lot within a plat have the right unilaterally to construct a private driveway on neighboring property that has been dedicated but not used as a public street?
III. Was the City of Duluth authorized by its code to grant a person permission to construct a private driveway on property owned by the person’s neighbors within a corridor dedicated but not used as a public street?
IV. Did the district court abuse its discretion by ordering a person to restore land to its unimproved condition on the portion to which the person holds the underlying fee?
parties’ challenges to different aspects of the district court’s conclusions on
appeal, we must determine whether the district court’s findings are clearly
erroneous or whether it erred in its application of the law. River
City Mortgage Corp. v. Baldus, 695 N.W.2d 375, 377 (
The district court granted the Bolens’ posttrial motion to add Zajac as a plaintiff, without holding a hearing or otherwise entertaining argument from Glass. Glass asserts that he has been prejudiced by the court’s decision because (1) Zajac would have been viewed as an interested party while testifying, rather than as a seemingly disinterested witness; (2) Zajac’s testimony as a party would have been subject to less-restrictive rules of evidence; and (3) the scope of Glass’s liability is broader than he anticipated with only the Bolens as plaintiffs.
Bolens’ request was characterized as a motion to amend the complaint to conform
to issues tried by consent of the parties under rule 15.02 of the Minnesota
Rules of Civil Procedure. The district
court has broad discretion to allow an amendment to the pleadings when an issue
has been litigated by consent. Willmar Gas Co. v. Duininck, 239
see no prejudice to Glass by the amendment.
Glass’s answer had alleged as an affirmative defense the Bolens’ failure
to add Zajac as an indispensable party.
Glass asserts that the Bolens could have added Zajac as a plaintiff by
consent or with permission of the court before trial under rule 15.01. His answer demonstrates that well before
trial he recognized that Zajac has a stake in the outcome and should be a
party. And it would have been equally clear
to the factfinder that Zajac would either benefit or suffer from the district
court’s decision whether Zajac was designated as a party or not. Because of the nature of the dispute, the
court’s decision would assign rights and burdens concerning the land within the
corridor that is not owned by Glass but upon which Glass built his
driveway. This includes the Zajac
property. Zajac’s interest was apparent,
and his testimony was equally impeachable as a nonparty witness or as a plaintiff. Glass has not established how evidentiary
offerings, objections, or rulings may have differed materially had there been an
earlier party designation, and Glass’s liability to Zajac would apparently be
the same whether Zajac is a plaintiff in this action or in one to follow. Better practice would have been to include
Zajac as a party at the outset or soon after.
But based on our review of the record, we conclude that the district
court did not abuse its discretion by adding Zajac as a plaintiff, even when it
did so after trial. We next consider the
principal substantive question, which is whether Glass has a private right to
construct a driveway on
Glass and the city forward various theories to support their contention that Glass has a right to 40th Street that entitles him to construct a driveway to serve his property and allow private access to Minnesota Avenue. None persuades us.
argue that Glass has the right to use 40th Street because the street is an open
public street and he may use it as a member of the public. But the district court found that the street is
a “paper street” only. And the evidence
fails to compel the contrary finding that the street is “open” to the
public. The city has never petitioned to
open the street or maintained the corridor for public use. See,
e.g., In re Maintenance of Road Areas
Shown on Plat of Suburban Estates, 311 Minn. 446, 451-52, 250 N.W.2d 827,
831 (1977) (noting that “municipality may determine the time it will open a
street” and advising owners to formally present request to town board to open
and maintain roads); Village of Medford
v. Wilson, 304
Glass argues that
the street became open by virtue of the city’s acceptance of the 1902 plat that
contained the dedication of the street easement. He cites no authority for this proposition,
and the city’s brief does not join him in it; he merely contends that because
there normally are no “parades and ribbon-cutting ceremonies to commemorate the
opening of a city street,” the acceptance of the dedication itself was
sufficient to open it. Caselaw leads us
to a different conclusion. In Lafayette
Land Co. v. Village of Tonka Bay, a landowner sued to compel the village to
open a portion of a road that, like 40th Street, had been dedicated to the
municipality but not improved to accommodate vehicular travel since its
Glass and the city
also contend that the 1902 dedication combined with its public use since that
time opened the street. The two cases
they rely upon do not support their position. In Anderson v. Birkeland, the supreme
court considered whether a roadway that had been graded, oiled, and resurfaced
for public use by the county at public expense for six years and that was used
as a roadway by the public for at least 17 years had thereby been offered and
accepted as a public roadway by statutory or common-law dedication. 229
The second case
the parties cite comes closer to the issue but not to the relevant facts: In
re Request of Lafayette Dev. Corp. to Open 18th Ave. S., 567 N.W.2d 743
(Minn. App. 1997) aff’d mem., 576
N.W.2d 740 (Minn. 1998). In Lafayette
Development, we held for the first time that a dedicated roadway’s opening
can occur without a municipality making improvements to the roadway.
Glass highlights that
the corridor was used as an amusement park in the early 1900s, that “
Although Glass has rights to use the portion of the unopened street that lies on his own property, any right he might have to use the street as a member of the public is subject to the rights of the individual property owners of each segment of it.
[A]ny abutting landowner owns to the middle of the platted street or alley and . . . the soil and its appurtenances, within the limits of such street or alley, belong to the owner in fee, subject only to the right of the public to use or remove the same for the purpose of improvement.
Kochevar v. City of
also do not agree with the contention that Glass has the right to install a
driveway on 40th Street merely because he owns a lot within the plat. Under certain circumstances, the owner of a
lot within a plat may obtain rights to use dedicated areas in the plat that do
not directly abut his property. For example,
in Bryant v. Gustafson, a plat
expressly dedicated the use of named roadways to the lot owners of the plat. 230
is true that the supreme court has acknowledged the general rule that “one
purchasing a lot within a plat may rely upon the dedication of streets and
alleys shown therein, and possesses the right to use the same.” Etzler
v. Mondale, 266
faces two significant obstacles to his assertion of the right to employ self-help
in creating his driveway. First, Minnesota
courts have not established the more extreme rule urged by Glass and expressed by
several other jurisdictions that the purchasers of property within a plat that
dedicates land as streets for public use are entitled to “do whatever is
necessary to put [those streets] in a condition for use.” 26 C.J.S. Dedication
§ 78 (2001); see also Village of
Baxter Estates v. G.N.M. Constr. Co., 267 N.Y.S.2d 663, 666 (N.Y. Sup. Ct.
1966) (“As the purchaser and owner of Lots . . . on the filed map,
the corporate defendant has an absolute right to open up and improve the
unopened portions of [certain paper streets] for persons going to and from its
lots; nor would this right be impaired even if [the defendant] did not have
title to the roadbeds.”). Here, municipalities
are authorized to choose a careful approach to the improvement and opening of
dedicated land for public use. As
discussed above and implied by various holdings, in Minnesota, municipalities,
not neighboring landowners, decide whether a property dedicated for a
particular use will be improved to accommodate that use. See Pierro
v. City of Minneapolis, 139
If Glass’s legal theory were correct, the Bolens or Zajac, or any of the other owners of the 164 lots established by the platted, 1902 Oatka Beach Addition, could by right arrive tomorrow with a bulldozer and a load of gravel and level 40th Street from Minnesota Avenue to the lake. We see no support for this theory in Minnesota law, which contemplates a deliberate, municipality-controlled approach to improvements to and use or vacation of dedicated land. We hold that the owner of a platted lot within a municipality does not, by virtue of a public street dedication of land elsewhere within the plat, have the right unilaterally to improve the dedicated land for use as a street.
Second, even if Minnesota law authorized any private landowner in a plat to improve property elsewhere within the plat to fulfill the purpose of a plat dedication, Glass has not taken steps, and the city has not directed him, to open 40th Street for the purpose for which it was dedicated. Although the dedication is for a publicly usable street, Glass has created merely a private driveway on Zajac’s and the Bolens’ properties to access his private garage by connecting to Zajac’s private driveway. By his improvement the public enjoys no more access than before. Although Minnesota caselaw demonstrates that Glass has a right to receive notice attendant to the disposition of platted but unopened streets, and he may, as an interested party, be entitled to measured damages arising from the vacation of those streets, it does not establish that he has the right to construct a private driveway for private use on portions of the 40th Street corridor that rest on property to which other landowners hold title.
Glass next argues that he has a constitutional right to use 40th Street to access Minnesota Avenue from his property. Elsewhere, he argues that he has a constitutionally protected right of access from his property. The distinction between a constitutional right to access property and a constitutionally protected right to access property is not simply a difference in semantics. If Glass has an actual constitutional right to access his property, the government—in this case the city—may have a “constitutional obligation to provide sufficient public street access to the Glass property,” exactly as he argues. If, instead, his right to access his property arises from some other source and concerns the relationship between neighboring landowners, it is a right that the state need not itself satisfy. Rather, it is a private right that the state or local government may not infringe without due process and just compensation. We therefore first clarify the nature of the right.
right to access his property arises from common law. Property interests are not created by the
Constitution. Bd. of Regents v. Roth, 408
Having concluded that Glass’s right of access to his property is a common-law right, we must decide if the right is satisfied in this case. We hold that it is. As the district court found, Glass’s parcel has direct access to Minnesota Avenue already, and he and the prior parcel owners relied on that access for years. Although it may be more convenient for Glass to discard his original driveway and reach Minnesota Avenue by 40th Street, he has not contended that this change is “necessary.” See Magnuson v. Cossette, 707 N.W.2d 738, 745 (Minn. App. 2006) (applying doctrine of easement of necessity and noting that the “easement must be more than a mere convenience”). Glass attempts to establish hypothetical necessity by insisting that exercising his right to sever his L-shaped parcel by selling Lot 1 would leave the owner of the severed lot landlocked and without access to Minnesota Avenue except by 40th Street. This assertion does not help his position for two reasons.
we must decide the case on the present facts, and presently, Glass owns the
entire parcel, which abuts Minnesota Avenue with no need to rely on 40th Street.
And although the individual lots theoretically
could have been singly owned by different individuals, they were not. The record establishes that the owner of Lot
1 always also owned at least Lots 2 and 16, allowing direct access to Minnesota
Avenue from the parcel. And even if Lot
1 had previously been separately owned and landlocked, Glass’s ownership of the
merged three lots eliminated Lot 1’s hypothetical need to rely on any other lot
to access the public thoroughfare. “The
merger doctrine is intended to extinguish easements when title to the dominant
and servient estates are united in one fee owner simply because one has no need
for an easement in property one owns in fee.” Pergament v. Loring Props., Ltd., 599 N.W.2d
146, 151 (
Glass’s hypothetical future sale would not leave the landlocked owner of Lot 1 without
a remedy because she could either petition the city to open 40th Street or rely
on the common-law principle of implied grant of easement by necessity. When a landowner conveys part of his land and
retains another, he is presumed to convey to the owner of the landlocked
portion an easement of access to the thoroughfare across the retained portion. Romanchuk v. Plotkin, 215
conclude that the district court did not err by determining that Glass lacks
the right to construct a private driveway on property owned by the Bolens and
Zajac within the
The district court determined that the city exceeded its authority by granting a permit to “allow a private citizen to develop a public easement for private driveway purposes.” The city claims that the district court ignored the authority granted by its Legislative Code, which includes a charter and general ordinances. We do not read this code to confer the claimed authority.
city contends that it derives the authority to issue the permit to Glass on the
following provision of the city charter:
“The council may by ordinance permit abutting owners to make use of
portions of public highways not physically being used or occupied by the public
upon such terms and conditions and by such procedure as the council, in each
such ordinance, may provide.” Duluth, Minn.,
City Charter ch. XIII, § 100(d) (1964).
The city asserts that under this section, it enacted a general ordinance
giving the city engineer the authority to “issue special permits to private
parties to make local improvements in, upon or under the public highways and
public grounds of the city, as such local improvements are defined and
authorized by Chapter IX of the City Charter.”
We disagree that section 100(d) authorized the city to permit Glass to construct a private driveway within the corridor on the Bolen and Zajac properties. First, section 100(d) expressly concerns permitted use by abutting property owners, and Glass does not fit that description for the challenged portions of his proposed driveway. An abutting property is one that “share[s] a common boundary.” Black’s Law Dictionary 11 (8th ed. 2004); see also Kochevar, 273 Minn. at 276, 141 N.W.2d at 26 (describing “abutting landowner[’s]” ownership as extending to the centerline of the segment of the street adjacent to the landowner’s lot). Glass is an abutting owner only so far as his property extends lineally along the 40th Street corridor beside Lot 1; Glass is not an abutting owner on the southern half of the corridor where the centerline marks the boundary between Lots 24 and 15, owned by the Bolens and Zajac, and his private rights to the northern half do not extend west of the centerline.
Second, section 100(d) authorizes the city council “by ordinance [to] permit” abutting owners to use an unused or unoccupied part of a public highway based on the terms that “each such ordinance” may provide. The city enacted no ordinance permitting and defining the terms of Glass’s use of the public-roadway easement. While the city contends that section 45-84 is such an ordinance, that section concerns local improvements by private parties upon or under public highways and public grounds. And a party making improvements under the ordinance must “assign, set over, and transfer unto the city, in trust for the use and benefit of the public, such improvement.” Duluth, Minn. Legislative Code § 45-86 (emphasis added). Section 45-84 contemplates local improvements for the public benefit. It does not purport to authorize permission to make improvements exclusively for private use. We conclude that section 45-84 did not authorize the city to permit Glass to build his private driveway along portions of the 40th Street corridor that abut property owned by the Bolens and Zajac. We therefore need not consider the larger question, whether the city has the constitutional authority to do so. We hold that the district court correctly determined that the city code did not authorize the city to permit Glass to enter, modify, and use those portions of the 40th Street corridor that he does not own. The only remaining question is whether the district court went too far by requiring Glass to restore the portion of the corridor that he does own.
asserts that the district court erred by ordering him to restore the entire 40th
Street corridor to its previous condition, even those parts that abut Lot 1 and
to which Glass holds the underlying fee.
Because Glass owns the underlying fee to the centerline of that part of
the 40th Street corridor that abuts Lot 1, he is entitled to use that property
as he sees fit, “subject only to the right of the public to use or remove [the
property] for the purpose of improvement.”
D E C I S I O N
The district court acted within its discretion by adding Zajac, a clearly interested party, as a plaintiff after trial. Under Minnesota law, an owner of a platted lot within a municipality does not have the private right unilaterally to improve land to open a street dedicated to public use when he is not the fee holder, and the lot owner in this case also has made improvements insufficient to satisfy the dedication’s public purpose. The City of Duluth’s legislative code does not authorize the city to permit a lot owner within a plat to construct a private driveway for private use on property beyond the lot owner’s title. Although the district court accurately determined that the breaching owner may not construct his driveway on his neighbor’s property, it abused its discretion by ordering him to restore the property on those portions of the contested corridor to which he holds the underlying fee. We therefore affirm the district court and modify its judgment only to limit the remedy.
Affirmed as modified.
 The plat consists of four blocks with a total of 164 lots. The Bolens’ current lots are within Block 1, and Zajac’s and Glass’s lots are in Block 2. For convenience, we will refer to the lots by lot number only without regard to their separate block assignments.
 Henry O’Donnell owned Lots 1, 2, and 16, the
current L-shaped parcel, from 1904 to 1981.
He acquired Lot 15 in 1928 and owned it until 1951 when the lot was sold
to leave the L-shaped parcel. The
L-shaped parcel continued to be owned by O’Donnell or his family until 1998 when
Glass bought it. Meanwhile,