This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-1988

 

 

J & L Property Investment, Inc., et al.,

Appellants,

 

vs.

 

City of Minneapolis,

Respondent,

 

Discount Steel, Inc.,

Respondent.

 

Filed May 7, 2002

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 9912305

 

 

Robert B. Bauer, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for appellants)

 

Jay M. Heffern, Minneapolis City Attorney, William C. Dunning, Larry F. Cooperman, Assistant City Attorneys, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for respondent Minneapolis)

 

Francis J. Rondoni, Michele R. Wallace, Rondoni, MacMillan & Schneider, Ltd., 175 Waterford Park, 505 North Highway 169, Minneapolis, MN 55441 (for respondent Discount Steel)

 

Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Foley, Judge.*

 

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

ROBERT H. SCHUMACHER, Judge

Appellants J & L Property Investment, Inc. and Aris Industrial Services, Inc. challenge various decisions made by the district court relating to the vacation of a public street that abutted their access easement. They contend that (1) the court erred by declining to compel eminent domain proceedings; (2) the court erred by failing to grant them attorney fees; (3) they were denied due process of law because they did not receive prior notice of the city's intent to vacate the street; (4) the court improperly vacated its March 14, 2000 order declaring the street vacation invalid; (5) the court erroneously granted summary judgment sua sponte against them; and (6) the court erroneously required them to join respondent Discount Steel, Inc. as a party to the case. We affirm.

FACTS

J & L and Aris are the owners and lessees of properties located at 2706-2708 Washington Avenue North in Minneapolis. Respondent Discount Steel, Inc. is the owner of property located at 2700 Washington Avenue North. On this property, there is a driveway that runs in a northerly direction from former 27th Avenue North to a building occupied by Aris. This driveway provides access to and from the rear of the Aris building. J & L and Aris have an easement to use this driveway to cross Discount Steel's property. Before the street vacation, the easement allowed J & L and Aris to access Washington Avenue to the west and Second Street North to the east via 27th Avenue North.

On April 9, 1999, respondent City of Minneapolis, at Discount Steel's request, vacated a one-block portion of 27th Avenue North between Washington Avenue North and Second Street North. Thereafter, J & L and Aris brought a declaratory judgment action against the city seeking an order declaring the city's vacation invalid. On March 14, 2000, the district court ruled that the street vacation was invalid and ordered the city to immediately restore J & L and Aris's uninterrupted access to 27th Avenue North. J & L and Aris subsequently petitioned the district court to compel eminent domain proceedings. On September 25, 2001, the district court found that there was no taking and therefore declined to compel eminent domain. The court also vacated its March 14, 2000 order declaring the street vacation invalid and granted summary judgment in favor of the city. J & L and Aris now appeal.

D E C I S I O N

1. When the government has taken property without formally using its eminent domain powers, the property owner has a cause of action for inverse condemnation. Alevizos v. Metro. Airports Comm'n, 298 Minn. 471, 477, 216 N.W.2d 651, 657 (1974). In this inverse condemnation action, J & L and Aris contend the district court erred by declining to compel eminent domain. Specifically, they argue that the city's vacation of a portion of 27th Avenue north was a "taking" entitling them to just compensation.

Both the Minnesota Constitution and state statutes provide that compensation must be paid when a taking occurs. Minn. Const. art. 1, 13; Minn. Stat. 117.042, .055, .088, .175 (2000). A "taking" is any interference "with the possession, enjoyment, or value of private property. Minn. Stat. 117.025, subd. 2 (2000). Actions for inverse condemnation must be brought to the court through an action in mandamus. Stenger v. State, 449 N.W.2d 483, 484 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990). A district court reviewing a petition for a writ of mandamus "must decide, as a threshold matter, whether a taking of property has occurred in the constitutional sense." Grossman Invs. v. State by Humphrey, 571 N.W.2d 47, 50 (Minn. App. 1997), review denied (Minn. Jan. 28, 1998). Generally, once a taking has been found, the district court shall issue a writ of mandamus to compel commencement of eminent domain proceedings. Haeussler v. Braun, 314 N.W.2d 4, 10 (Minn. 1981). On appeal, this court will reverse a district court's order on an application for mandamus relief "only when there is no evidence reasonably tending to sustain the trial court's findings." Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn. App. 1995).

Here, all parties agree that J & L and Aris hold an easement over Discount Steel's property for access to the vacated street. As a general rule, easements are not extinguished by the vacation of a public street. 25 Am. Jur. 2d Easements and Licenses in Real Property 25 (1996). J & L and Aris essentially argue that the city's vacation of the street amounted to a compensable taking because it denied them access to their property.

A landowner "is not entitled to recover damages caused by the vacation of a road where they are the same in kind as those sustained by the general public * * *." Underwood v. Town Bd. Of Empire, 217 Minn. 385, 388, 14 N.W.2d 459, 461 (1944). "Where the vacation of a road deprives an abutting landowner of right of access to his land, it causes him damage distinct from his right to use the road for travel as one of the public." Id. at388-89, 14 N.W.2d at 461. Under such circumstances, the landowner is entitled to compensation. Id.

It is well settled that an owner of land abutting a street cannot be deprived of all access to his premises without compensation by the vacation of the street. Wolfram v. State by Burnquist, 246 Minn. 264, 267, 74 N.W.2d 510, 512 (1956); In re Burnquist, 220 Minn. 48, 54, 19 N.W.2d 394, 398 (1945); Underwood, 217 Minn. at 388-89, 14 N.W.2d at 461; In re Hull, 163 Minn. 439, 453-54, 204 N.W. 534, 540 (1925). While, it is undisputed that J & L's and Aris's properties do not abut the vacated street, for purposes of this inverse condemnation issue, they are considered to be abutting owners because they are holders of an easement that abuts and gives them access to the vacated street. See Minn. Stat. 117.025, subd. 3 (defining a landowner as "all persons interested in such property as proprietors, tenants, life estate holders, encumbrances, or otherwise.").

The district court found that J & L and Aris did have access to their properties and therefore there was no taking. The evidence in the record supports this finding. J & L and Aris argue that they cannot access Second Street North from the vacated street. While this is true, they still have access to Washington Avenue via former 27th Avenue North. J & L and Aris, however, argue that they do not have complete access to Washington Avenue North because Discount Steel owns a fence that controls such access. There is no evidence in the record supporting this allegation.

It is undisputed that Discount Steel now has legal title to former 27th Avenue North. The record, however, shows that J & L and Aris are still able to access the area of former 27th Avenue North via their driveway easement. Also, Discount Steel does not challenge the fact that J & L and Aris have at least an implied easement over former 27th Avenue North to Washington Avenue North. In fact, Discount Steel has stated on the record that it is willing to provide J & L and Aris with a recordable easement, affirming their right to access Washington Avenue via former 27th Avenue North.

Because the record shows that J & L and Aris are still able to access the vacated street via their easement and reach Washington Avenue via the vacated street, no taking occurred. See, e.g., Dale Properties, LLC, v. State, 638 N.W.2d 763, 766-67 (Minn. 2002) (property owner who retains direct access to traffic in one direction, although losing it in other direction retains reasonable access as matter of law). The evidence in the record reasonably sustains the trial court's findings.

2. J & L and Aris also contend that the district court erred by not granting them attorney fees. A landowner who succeeds in compelling eminent domain is entitled to reimbursement for reasonable attorney, appraisal, and engineering fees. Minn. Stat. 117.045 (2000); Spaeth v. City of Plymouth, 344 N.W.2d 815, 822-23 (Minn. 1984). Because J & L and Aris have not successfully compelled eminent domain proceedings, they are not entitled to attorney fees.

3. J & L and Aris additionally contend the district court erroneously granted summary judgment sua sponte against them. Minn. R. Civ. P. 56.03 provides strict notice requirements for summary judgment motions. Unless waived by the party opposing summary judgment, the notice requirements in Rule 56.03 are mandatory. Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 278-79, 230 N.W.2d 588, 591 (1975). The district court, however, has the authority to grant summary judgment sua sponte, without notice to either party, when no genuine issues of material fact remain, one of the parties deserves judgment as a matter of law, and the absence of a formal motion creates no prejudice to the party against whom summary judgment is granted. Id. at 280-81, 230 N.W.2d at 591-92; Modern Heating & Air Conditioning, Inc. v. Loop Belden Porter, 493 N.W.2d 296, 299 (Minn. App. 1992).

J & L and Aris fail to explain how they were prejudiced by the district court's sua sponte grant of summary judgment. In fact, the record indicates that J & L and Aris were not prejudiced. The record shows that all issues were extensively argued and discussed by both parties. A hearing was held on the declaratory judgment action on November 19, 1999. J & L and Aris filed a memorandum of law discussing these issues in depth. In response, the city filed a memorandum of law discussing the issues, and J & L and Aris filed a reply memorandum. The district court then issued an order on March 14, 2000 declaring the vacation invalid.

Thereafter, on September 11, 2000, J & L and Aris filed a motion and memorandum of law asking the district court to compel eminent domain proceedings. In response, the city filed a memorandum specifically asking the court to grant summary judgment in its favor. J & L and Aris submitted a reply memorandum. Following briefing, the district court tabled the motion while the issue regarding the Rule 19 joinder of Discount Steel was briefed and decided. Then more than one year later, the court issued its September 25, 2001 order disposing of the issues. J & L and Aris knew or should have known that the city was seeking summary judgment and had adequate time to respond to this request. J & L and Aris were not prejudiced by the district court's grant of summary judgment.

As previously stated, there was no taking of J & L and Aris's property. Therefore the city was entitled to judgment as a matter of law. Discount Steel admits that access was denied for a portion of time while they repaved the area of the easement and a portion of former 27th Avenue at Aris's request. There is no evidence in the record, however, that J & L and Aris are currently denied access to their properties. Therefore, there are no genuine issues of material fact. The district court did not err by granting summary judgment to the city.

4. In their brief, J & L and Aris further contend that (1)the city's vacation of a portion of 27th Avenue North is void because they did not receive prior notice of the city's intent to vacate; and (2) the district court improperly vacated its March 14, 2000 order declaring the city's vacation of a portion of 27th Avenue North invalid. At oral argument J & L and Aris stated that they no longer challenge the validity of the vacation. Therefore, it is not necessary to address these issues.

5. Finally, J & L and Aris contend that the district court erred by requiring them to join Discount Steel as a party to the case. Because we find that the district court did not err by declining to compel eminent domain proceedings or granting summary judgment to the city, it is not necessary for us to reach this issue. We note, however, that we do not regard the district court's summary judgment as determining any claims that J & L and Aris might have, now or in the future, against Discount Steel to enforce an easement over former 27th Avenue North to Washington Avenue North.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.