This opinion will be unpublished and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

C0-01-1731

C3-02-17

 

County of Blue Earth,

Respondent,

 

vs.

 

Francis E. Wingen, et al.,

Appellants.

 

Filed August 13, 2002

Affirmed

Kalitowski, Judge

 

Blue Earth County District Court

File Nos. C5011506, C9012092

 

Arvid Wendland, Wendland Timmerman, 825 East Second Street, Blue Earth, MN 56013 (for respondent)

 

Stephen J. Behm, Eskens, Gibson & Behm, Chtd., 3 Civic Center Plaza, Suite 409, P.O. Box 1056, Mankato, MN 56002-1056 (for appellants)

 

 

            Considered and decided by Kalitowski, Presiding Judge, Parker, Judge,* and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellants argue that the district court erred in granting respondent Blue Earth County a temporary easement over their land that included the right to take soil as part of a condemnation proceeding.  Appellants also argue the district court erred in granting respondent’s subsequent petition to acquire appellants’ land by eminent domain.  We affirm.

I.

Appellants argue respondent did not have authority to remove soil from their land based on the temporary easement acquired by respondent in a condemnation proceeding.  Appellants also contend that the removal of soil was unnecessary and therefore unreasonable because respondent removed the necessary soil from another source.  We disagree.

Judicial review in condemnation proceedings is narrowly limited to determining whether the taking serves a public purpose and is necessary.  In re Condemnation by Minneapolis Cmty. Dev. Agency, 582 N.W.2d 596, 598 (Minn. App. 1998), review denied (Minn. Oct. 29, 1998).  Public purpose and necessity are questions of fact, and this court will not reverse those determinations on appeal unless they are clearly erroneous.  Id. at 599.

[County boards] may acquire by purchase, gift, or eminent domain proceedings as provided by law, all necessary right-of-way for such highways, purchase all necessary road material, machinery, tools, and supplies needed therefor[.]

 

Minn. Stat. § 163.02, subd. 2 (2000).

A finding of “absolute necessity” is not required in a condemnation proceeding; “it is enough to find that the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.”  Itasca County v. Carpenter, 602 N.W.2d 887, 889 (Minn. App. 1999) (quotation omitted).  All that is necessary is a showing of necessity either now or in the near future.  IdWhile what constitutes a “public use” is a judicial decision, the deferential scope of review requires a broad interpretation of this term.  City of Duluth v. State, 390 N.W.2d 757, 763 (Minn. 1986).

Here, appellants’ soil was to be removed, at the request of the county engineer, to prevent the creation of several snow traps on the highway adjacent to appellants’ land. County construction of a highway, in light of some evidence in the record evidencing a public purpose, has been held to justify condemnation.  County of Dakota v. City of Lakeville, 559 N.W.2d 716, 720 (Minn. App. 1997).

Judicial review in condemnation proceedings is narrowly limited to determining whether the taking serves a public purpose and is necessary.  Condemnation, 582 N.W.2d at 598.  Appellants contend that respondent exceeded its authority because the temporary easement does not give the county the right to take its property.  We disagree. 

  The county board can acquire all necessary road material needed for highway construction.  Minn. Stat. § 163.02, subd. 2.  The statute authorizing the taking determines the nature of an interest in land acquired by a governmental entity for public use through the exercise of eminent domain.  Buck v. City of Winona, 271 Minn. 145, 149, 135 N.W.2d 190, 193 (1965).  Where the statute does not expressly or by implication grant the right to take an estate in fee simple, the interest taken is limited to that necessary to accomplish the purpose and no greater estate may be taken.  Id.  Here, respondent requested a temporary easement because it only needed possession so it could use the soil to regrade the slope.  We conclude that the taking of soil is authorized because it is necessary and is the least intrusive taking that accomplishes respondent’s goal.

Appellants also argue the taking of soil from its land is unreasonable and unnecessary because soil is available from another site.  We disagree.  The record indicates that:  (1) the county needs about 16,000 cubic feet of soil from appellants’ land, of which 12,000 cubic feet will be hauled to the Annis borrow fill to replace borrow taken from that fill during this appeal process; (2) the Annis borrow fill is being used in the construction of another highway, and needs to be replenished so the other highway can be completed; and (3) the cost of hauling in the soil is prohibitive.

Appellants also contend the resloping is not necessary to prevent against snow traps because there has not been a problem with snow in the last 50 years.  But the record indicates that the county engineer stated that it was necessary to reslope because the new construction will alter the level of the land allowing snow traps to form.  We conclude it was in the district court’s discretion to find the soil was necessary to build the highway on appellants’ land and to replenish fill taken from another borrow pending this judicial process.

II.

Appellants argue that the district court erred in granting respondent’s subsequent petition to acquire appellants’ land contending (1) the petition is moot because appellants gave consent to remove the soil; and (2) the soil was not being used to assist the CSAH 10 construction.  We disagree.

In a condemnation proceeding, all that is necessary is a showing of necessity either now or in the near future.  Itasca County, 602 N.W.2d at 889.  While what constitutes a “public use” is a judicial decision, the deferential scope of review requires a broad interpretation of this term.  Duluth, 390 N.W.2d at 763. 

  Initially we note that contrary to appellants’ assertion, the record indicates appellants did not give full consent to remove the soil from their land.  And as discussed above, the record also indicates that the county established its need to use appellants’ land for a public use.  In addition, as discussed above, the record indicates the soil being taken will be used to replenish the Annis borrow fill which was depleted because it was used to continue the CSAH 10 project and avoid delay as a result of appellants’ lawsuit. 

Affirmed.

 



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