This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-961

 

 

Raymond Brueske, et al,

Appellants,

 

vs.

 

Plainview Township,

Respondent.

 

 

Filed November 28, 2000

Affirmed

Schumacher, Judge

 

Wabasha County District Court

File No. C299068

 

 

Kenneth R. Moen, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, Post Office Box 549, Rochester, MN 55903 (for appellants)

 

Peter B. Tiede, Nancy A. Proffitt, Murnane, Conlin, White & Brandt, P.A., 1800 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for respondent)

 

 

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellants Raymond and Evelyn Brueske challenge adverse summary judgment, arguing that maintenance of a public cartway is not within respondent Plainview Township's discretion. We affirm.

FACTS

In 1894, Plainview Township established as a public cartway a half-mile stretch of road connecting a farm to the township road system. From 1966 to 1968, Hugh Curry owned the farm and his brother's family occupied a residence on the property. A school bus used the cartway to pick up school-age Curry children. During this time, the township plowed the snow along the cartway and also bladed the cartway.

In 1968, the Brueskes purchased the Curry property for farming purposes, never residing there. In 1972, at an annual town meeting, the town board decided to discontinue snowplowing and to do only a minimum of blading in the summertime. The township performed minimum maintenance on the cartway from 1972 until 1978. In 1978, the township discontinued all maintenance of the cartway.

In the early 1980s, the Brueskes asked the township to maintain the cartway, but the township refused. In 1998, the Brueskes brought this action to compel the township to maintain the cartway. On cross motions for summary judgment, the district court granted judgment for the township, ruling that maintenance expenditures on the public cartway were within the township's discretion.

D E C I S I O N

On appeal from summary judgment, this court inquires whether there are any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Statutory construction is a question of law that we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

The relevant statutory provision, entitled "Expenditures on cartway," provides:

Any town board may expend town road and bridge funds upon a legally established cartway the same as on town roads if, in the judgment of the board the public interests require it; provided, that where any town board has refused to allocate funds for the upkeep of a cartway, then, upon the petition of ten taxpayers of the town, the town board shall present for the approval of the voters, after due notice, at the annual town meeting the petition for allocation of funds, and at the town meeting the electors of the town shall allow or reject the petition. If the majority of those voting approve the petition for allocation of funds, the town board shall expend road and bridge funds on the cartway.

 

Minn. Stat. 164.10 (1998). The plain language of the statute indicates that maintenance is discretionary with the town board as it employs the permissive "may" and indicates that it is within the judgment of the board as to whether the "public interests" require public expenditures. C.f. Minn. Stat 645.44, subd. 15 (1998) (stating "'[m]ay' is permissive").

The discretionary nature of public expenditures on cartways was confirmed by the supreme court in State ex rel. Rose v. Town of Greenwood, 220 Minn. 508, 20 N.W.2d 345 (1945). The court explained that the statute

confers discretionary power upon town boards to expend town funds upon cartways, giving taxpayers dissatisfied with the refusal of a town board to make such expenditures a remedy by way of petition to the voters and decision by them at a town meeting. The power is a discretionary one, because the language of the statute granting it is in permissive terms, as the use of the word "may" shows, and is to be exercised only when in the "judgment" of the town board the public interest justifies the expenditure. * * * * Any thought that a town board is under a mandatory duty to make such expenditures is further negatived by the provisions of the statute giving taxpayers, upon failure to make such expenditures, a remedy by petition for an allocation of funds for a particular expenditure and submission of the proposition to the voters at a town meeting for the exercise of still further discretion and judgment by them, and by not providing that the remedy should be * * * to compel performance of the act as an absolute duty.

 

Id. at 515-16, 20 N.W.2d at 348-49.

The Brueskes argue that the township has a duty to maintain the cartway in usable condition, relying on Carlson v. Township of Elmo, 141 Minn. 240, 169 N.W. 805 (1918). In that case, the court stated that

it is the duty of the town * * * to keep and maintain the [cartway] in suitable condition for public use. While that statute declares that the town board "may" expend road and bridge funds in the care of cartways, the use of the word "may" is not to be construed as making such expenditure merely permissive or wholly discretionary with the board; on the contrary, the statute should be construed as imposing a duty upon the board to the extent the public interest may require.

 

Id. at 243, 169 N.W. at 807. While the Carlson court stated that maintenance expenditures are not "wholly discretionary," the case is nonetheless consistent with discretionary maintenance as the duty extends only "to the extent the public interest may require." It is within the judgment of the township as to whether the "public interest" requires public expenditures.

The statute and caselaw make clear that a township may expend funds on cartway maintenance if in the judgment of the board the public interest requires it. This judgment is discretionary with the town board and the proper remedy is the specified petition procedure. The district court did not err in applying the law.

The Brueskes also argue that the roadway is legally a hybrid of a public cartway and a town road. They cite to the statutory definition of public road, which defines "town roads" to include "roads and cartways" established, constructed or improved by town boards. Minn. Stat. 160.02, subd. 6 (1998). But their argument ignores that the statutory scheme separately provides for public cartways, including a provision specifically detailing public expenditures for cartway maintenance. While the definition of public roads includes cartways, cartways are specifically governed by separate statutory provisions. See Minn. Stat 645.26, subd 1 (1998) (stating that when two provisions cover same subject, specific provision prevails over general provision).

The Brueskes also point to a 1975 vacation of an unused portion of the cartway to suggest that the disputed roadway has somehow been established as a town road. But nothing in the record supports their contention the disputed roadway is anything other than a public cartway as it was originally established in 1894. The Brueskes' attempts to characterize the roadway as something more than a cartway in order to get around the township's discretion are without merit. The Brueskes' remedy is through the statutorily prescribed petition process.

Affirmed.