This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Helmet J. Ullrich, petitioner,


Newburg Township Board,


Filed November 19, 2002


Wright, Judge


Fillmore County District Court

File No. C101611


David A. Joerg, David A. Joerg, P.A., 209 St. Paul Street SW, P.O. Box 257, Preston, MN 55965-1257 (for respondent)


Joseph L. Hammell, Rippe, Hammell & Murphy, 110 East Main Street, P.O. Box 149, Caledonia, MN 55921 (for appellant)


            Considered and decided by Willis, Presiding Judge, Hudson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N




            Newburg Township Board (Board) seeks reversal of the district court’s order granting a writ of mandamus that directs the Board to establish a cartway for respondent Helmet J. Ullrich.  The Board argues that (1) Ullrich landlocked his own property by selling parcels of land, and (2) a cartway is not necessary because access to Ullrich’s property currently exists by crossing Weisel Creek.  Because the property in question was landlocked before Ullrich sold any parcels and because the record supports the district court’s finding that the creek is at least intermittently impassable, we affirm.


            Respondent Helmet Ullrich purchased 240 acres of land in Fillmore County in December 1997.  Shortly thereafter, Ullrich sold 11 acres of the land to Duane Bushman and 30 acres to Brian and Constance Ristow. Beginning in 1998, Ullrich leased the remaining portion of the land to a local farmer, Galyn Simon, who also leases and farms a portion of Bushman’s land.  Allen O. Pederson owns the property immediately south of the Ullrich parcel; Genevieve Haakenstad owns the property immediately to the west of Pederson’s property.  Bordering and running through the property is Weisel Creek, which borders Ullrich’s and Bushman’s land on the west, north, and east, and winds through the middle of the Ristow property.

The proposed 600-foot cartway is partially on Pederson’s property and partially on Haakenstad’s property.  Until 2001, both Ullrich and Simon mistakenly believed that the proposed cartway was a continuation of the township road that runs north and south on the west side of the Pederson property.  In fact, Simon had traveled across the township road and continued along the proposed cartway from 1988 through the 2000 growing season. But during the 2001 growing season, Pederson denied Simon, Simon’s son, and Simon’s hired man access to Ullrich’s property across the proposed cartway.  This also prevented Simon from reaching Bushman’s property, because he gained access to that property through Ullrich’s property.  Ullrich then tried to negotiate with Pederson for a legal easement.  Pederson refused.

In March 2001, after Pederson denied Ullrich and Simon access across the proposed cartway, Ullrich petitioned the Board to establish a cartway across 600 feet of the Pederson and Haakenstad properties, pursuant to Minn. Stat. § 164.08, subd. 2 (2000), which mandates establishment of a cartway to connect a landowner’s property with a public road if, among other things, the landowner’s property is landlocked.  The Board scheduled a hearing for July 2001.  The hearing was canceled at Pederson’s request.  A new hearing was not scheduled until Ullrich filed a Petition for an Alternative Writ of Mandamus with the district court in November 2001.  On November 26, 2001, the Fillmore County district court ordered the Board to proceed on Ullrich’s cartway petition or to show cause before the court why it had not done so.  On December 1, 2001, the Board held a hearing.  The Pedersons and Haakenstads received notice and appeared at the meeting.  At the hearing, Pederson expressed his opposition to the cartway.  Ullrich did not receive notice of the hearing and was never given an opportunity to be heard by the Board.

Immediately after the hearing, the Board issued a resolution denying Ullrich’s petition for a cartway, because the Board determined that access to Ullrich’s property was available across Weisel Creek.  On January 2, 2002, the Board filed its answer to the Petition for the Alternative Writ of Mandamus, stating that Ullrich had landlocked his own property by selling parcels of his land and reiterating that Ullrich had access to his property across a “very small creek.”  A full evidentiary hearing was ordered by the district court and held on January 3, 2002.  On February 6, 2002, the district court granted the writ of mandamus and ordered the Board to establish the cartway, holding that access to Ullrich’s land across Weisel Creek was impractical and sometimes even impossible.  As a result, the court found Ullrich has no “reasonable or practical access” to his property “except across the lands of others, within the meaning and intent of Minnesota Statutes, Sec. 164.08, subd. 2.”  In addition, the court found that Ullrich’s sale of parcels of property to others had no impact onthe accessibility issue, because, even without the sale of the property, Ullrich would have lacked reasonable or practical access to the rest of his property.  As a result, the court concluded that the Board’s denial of the cartway was arbitrary, capricious, and unreasonable.



On appeal, this court will reverse a trial 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). “Mandamus is an extraordinary legal remedy awarded, not as a matter of right, but in the exercise of sound judicial discretion and upon equitable principles.” County of Swift v. Boyle, 481 N.W.2d 74, 77 (Minn. App. 1992) (quoting State ex. rel. Hennepin County Welfare Bd. v. Fitzsimmons, 239 Minn. 407, 422, 58 N.W.2d 882, 891 (1953)), review denied (Minn. Mar. 26, 1992).

When a township board grants or denies a cartway petition, it

acts in a legislative capacity and will be reversed on appeal only when (1) the evidence is clearly against the decision, (2) an erroneous theory of law is applied, or (3) the town board acted arbitrarily and capriciously, contrary to the public’s best interest.


Horton v. Township of Helen, 624 N.W.2d 591, 595 (Minn. App. 2001) (citing Lieser v. Town of St. Martin, 255 Minn. 153, 158-59, 96 N.W.2d 1, 5-6 (1959), Rask v. Town Bd. of Hendrum, 173 Minn. 572, 574, 218 N.W. 115, 116 (1928)).  A reviewing court applies a necessarily narrow scope of review.  Sun Oil Co. v. Vill. of New Hope, 300 Minn. 326, 333, 220 N.W.2d 256, 261 (Minn. 1974); Horton, 624 N.W.2d at 595.  Generally, a reviewing court will uphold a township board’s decision except in those “rare cases in which the city’s decision has no rational basis.” Henning v. Vill. of Prior Lake, 435 N.W.2d 627, 630 (Minn. App. 1989) (citations omitted), review denied (Minn. April 24, 1989).

Under Minnesota law, a township “shall” establish a cartway upon petition by the owner of a tract of land containing at least five acres if (1) the landowner’s access to a public road is less than two rods wide (33 feet), or (2) the landowner’s property is landlocked.  Minn. Stat. § 164.08, subd. 2(a); see Minn. Stat. § 645.44, subd. 16 (2000) (stating “‘[s]hall’ is mandatory”); see also Horton, 624 N.W.2d at 594 (applying Minn. Stat. § 164.08, subd. 2(a)).  In this case, the Board determined that Ullrich failed to qualify for a cartway for two reasons: (1) his land was accessible by crossing Weisel Creek, and (2) Ullrich landlocked himself by selling parcels of his property.  The Board’s December 1, 2001, resolution indicates that its rationale for denial is that Ullrich’s land is accessible across Weisel Creek, and, therefore, it does not meet the conditions for establishing a mandatory cartway.  In its January 2, 2002, filing with the district court, the Board added a second rationale—that Ullrich caused his property to be landlocked.  The district court considered and rejected both the resolution and the Board’s January 2, 2002, statement of its rationale for denying the cartway.

            We will not disturb the order requiring the Board to establish a cartway, unless our review of the record establishes that the evidence does not sustain the trial court’s finding that Ullrich’s property is landlocked.  The trial court found that Weisel Creek is a

fast flowing stream with muddy bottoms and relatively high banks  * * *  subject to wide spread flooding  * * *  [with] pools of water that are at least four feet deep * * * .


As a result, the trial court also found that “access  * * * over and across this creek would be highly impractical and at times impossible.”  A trial court’s findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Here, at the evidentiary hearing, the Board presented testimony to support its position that the creek is passable and that even if it is not passable, a cement swale could be installed at a cost of $7,000 to $8,000 to create access.  Ullrich countered with testimony that “the creek frequently floods, * * * [has] high banks, fast flowing water, and that the creek is deep and rocky.”  Thus, the evidence presented at the evidentiary hearing conflicted regarding whether and to what extent the creek was passable.  Where the evidence conflicts, appellate courts defer to the trial court’s resolution of competing factual claims.  See Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (stating “[i]t is not the province of [an appellate court] to reconcile conflicting evidence”); Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating “[t]hat the record might support findings other than those made by the trial court does not show that the court’s findings are defective”) (citing cases).  Here, the conflicting record precludes us from rejecting the trial court’s findings that access across the creek “would be highly impractical and at times impossible.”  And proposed access that is only intermittently passable is not sufficient to avoid creation of a cartway.  See State ex. rel. Rose v. Town of Greenwood, 220 Minn. 508, 513-15, 20 N.W.2d 345, 347-48 (1945). 

Relying on Christopherson v. Fillmore Township, the Board urges this court to conclude that access decisions are the sole province of the township board.  Christopherson v. Fillmore Township, 583 N.W.2d 307 (Minn. App. 1998).  While the township board’s decision in Christopherson regarding access was ultimately upheld, this court’s decision was not premised on blind adherence to township-board decisions.  Rather, it was premised on the determination that the trial court erred in its application of the cartway statute’s width requirements found in Minn. Stat. § 164.08, subd. 2, to the vacation of a township road statute, Minn. Stat. § 169.09, subd. 3 (1996).  Christopherson, 583 N.W.2d at 310 (upholding township board’s denial of cartway petition because easements have no minimum width requirement).

The Board also argues that its denial of the cartway was proper because the “mischief to be remedied” by Minn. Stat. § 164.08, subd. 2, is preventing Ullrich from taking advantage of the township and his neighboring landowners.  See Minn. Stat. § 645.16 (1) (2000) (stating legislative intent may be gleaned from consideration of, among other things, “mischief” statute was meant to remedy).  The Board argues that this court should uphold the denial of the cartway request to prevent this abuse.  We disagree.

Generally, courts cannot construe statutes absent ambiguity in the statute.  See id. (stating “[w]hen the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit”); Mueller v. Commissioner of Economic Sec., 633 N.W.2d 91, 93 n.1 (Minn. App. 2001) (stating “[c]ourts should turn to a statute’s legislative history to determine how it should be construed only when the language of the statute is ambiguous”) (citing Baker v. Ploetz, 616 N.W.2d 263, 269 (Minn. 2000) (emphasis added)).  Here, even assuming that the statute is ambiguous, for at least two reasons we reject the Board’s argument that the statute was intended to preclude landowners from taking advantage of the township and his neighbors.  First, when construing an ambiguous statute, we must attempt to discern and then to effectuate the legislative intent behind the statute in question.  Minn. Stat. § 645.16 (2000); State v. Gorman, 546 N.W.2d 5, 8 (Minn. 1996).  Among the factors to be considered in determining the meaning of an ambiguous statute are “the mischief to be remedied” and “the object to be attained” by the statute.  Minn. Stat. § 645.16 (3), (4) (2000).  Further, we presume that the statute is not intended to produce an unreasonable result. Minn. Stat. § 645.17 (Minn. 2000).

            Regarding the mischief to be remedied and the object to be obtained by Minn. Stat. § 164.08, subd. 2, the “origin and purpose” of the statute “are obscure,” but it was “[a]pparently” enacted to expand the narrow set of circumstances under which a party could, at common law, seek a way of necessity.  Roemer v. Bd. of Elysian Township, 283 Minn. 288, 291, 167 N.W.2d 497, 499 (1969).  Thus, the mischief to be remedied by Minn. Stat. § 164.08, subd.2 was that of allowing owners of landlocked real estate to have access to their land; it was not to preclude landowners from taking advantage of townships and neighbors. 

            A second reason for rejecting the Board’s argument is that, to support its argument, the Board cites the portion of Roemer, which holds that if a landowner has available access and “seeks to secure at public expense a new roadway * * * such procedure would lend itself to potential abuse.”  283 Minn. at 291, 167 N.W.2d at 499-500.  Roemer, however, is distinguishable.  There, the landowner was a developer who had an existing easement to access developing land.  Id., 283 Minn. at 289, 167 N.W.2d at 499.  In this case, Ullrich does not have an easement, nor is he developing the land or seeking the cartway at public expense.  Ullrich has requested the cartway with the intention of developing and maintaining it himself. The Board also makes the similar argument that Ullrich “may not landlock himself and then seek a governmental body to provide him access to his property.”  Consistent with the record, however, the district court found that even before the sale of the parcels, Ullrich did not have access to his property without crossing the land of Pederson and Haakenstad.  Moreover, Minn. Stat. § 164.08, subd. 2(a), does not condition the right of a cartway on whether the party seeking it created the need.  Thus, any consideration of Ullrich’s sale of parcels of property in determining whether the cartway was required under the statute, therefore, was error. 

Because the Board’s determination that Ullrich had access to his property across Weisel creek is not supported by the record and is inconsistent with the relevant case law, and because Ullrich did not landlock himself, the district court properly rejected the Board’s attempt to use these assertions as reasons to decline Ullrich’s request for a cartway.  Therefore, the district court’s decision to grant the writ of mandamus ordering the Board to establish the cartway in accordance with the mandatory provisions of Minn. Stat. § 164.08, subd. 2(a), was proper and we affirm that determination.