This opinion will be unpublished and

may not be cited except as provided by

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








Gregory J. Egan, et al.,



Richard Briesath, et al.,



Filed December 31, 2002


Peterson, Judge



Winona County District Court

File No. C3011812



Phillip P. Hansen, Hansen Law Office, LTD., 476 West Broadway, Winona, MN  55987 (for appellants)



Paul D. Reuvers, Jason K. Kuboushek, Iverson Reuvers, LLC, 230 Townline Plaza, 8585 West 78th Street, Bloomington, MN  55438 (for respondents)



            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


This appeal is from a summary judgment dismissing appellants’ suit against the City of Dakota and its mayor, Richard Briesath.  We affirm.


Appellants Gregory and Dianne Egan own property in the city of Dakota.   Mississippi Drive crosses the south boundary of appellants’ property, and the pavement comes to an end before reaching the north boundary.  When appellants bought their property in 1996, there was a grove of cedar trees north of the paved area.  Linda Olson owned the property adjacent to appellants’ property on the north.  In 1998, Olson cut down some of the cedar trees to extend Mississippi Drive to her property. 

In 1999, appellants commenced a quiet-title action to resolve disputes about the ownership of the property north of the pavement; Olson was a defendant in the action.  In June 2000, Olson wrote a letter to respondent Mayor Richard Briesath suggesting that the city annex the disputed roadway area.  During the summer and into the fall of 2000, Olson continued trying to assert a right of access over the disputed area, and appellants tried to prevent her from doing so.  Eventually, the Winona County Sheriff’s Department became involved and contacted the city to determine the status of Mississippi Drive, including the disputed area north of the pavement.

            On September 15, 2000, Breisath sent a memo to the Dakota City Council members and the city clerk stating that he would be the official spokesperson in all matters concerning Gregory Egan and Egan’s attorney.  The memo also stated that cooperation in not dealing with Egan and his attorney is a must and asked the council members and the clerk to refer Egan and his attorney to the mayor. 

Briesath called a special meeting of the city council on September 18, 2000, to consider the sheriff’s department’s request concerning Mississippi Drive.  Appellants attended the meeting, and Gregory Egan asked to present information, but Briesath did not allow him to speak.  Briesath brought to the meeting a draft of a letter that he proposed to send to the sheriff’s department.  The draft stated that the city had used and maintained Mississippi Drive right up to Olson’s property for a period of more than six years, which was not true.  The city had not maintained Mississippi Drive beyond the pavement.  Briesath moved that the council authorize him to send the draft to the sheriff’s department.  Briesath and one council member voted for the motion, and two council members voted against the motion.  Briesath then stated that as mayor, he could break the tie, and he declared the motion passed.  Briesath sent the letter to the sheriff’s department.

            On September 22, a lieutenant in the sheriff’s department sent a letter to Gregory Egan stating that after looking into the matter, including looking at a map provided by Briesath, he had concluded that Mississippi Drive extended to the boundary of Olson’s property.  The letter asked Egan to remove items that were blocking the roadway as soon as possible to prevent a criminal citation.  The letter from the sheriff’s department did not mention Briesath’s letter.  Appellants removed the obstructions but communicated their objections to Briesath by letter.

On September 29, 2000, appellants commenced this lawsuit against Briesath and the City of Dakota.  On November 22, 2000, counsel for respondents sent a letter to the sheriff’s department retracting the letter sent after the September 18 special council meeting and stating that the disputed area is not a public road.  Following a hearing on respondents’ motion for summary judgment and appellants’ motion for partial summary judgment, the district court determined that respondents were immune from suit and in the alternative, granted summary judgment on appellants’ claims based on trespass, wrongful eviction, and violation of eminent-domain principles.  The court denied appellants’ motion for partial summary judgment and dismissed appellants’ suit in its entirety.


On appeal from summary judgment, this court asks two questions: “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).  The evidence is viewed in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

            Minn. Stat. § 160.05, subd. 1 (2002), states:

When any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority, it shall be deemed dedicated to the public to the width of the actual use and be and remain, until lawfully vacated, a public highway whether it has ever been established as a public highway or not.


            The September 18, 2000, letter from Briesath to the sheriff’s department briefly described this statute and then stated:

Since the roadway called Mississippi Drive has been used by the city for more than six years, there would be what is known as a common law dedication of the roadway (Mississippi Drive).  The city has used and maintained Mississippi Drive right up to  Linda Olsons (sic) property line a period of more than six (6) years.


Hopefully, this information will help resolve the Mississippi Drive conflict.


            There is no dispute that the statement in this letter that the city has used and maintained Mississippi Drive up to Olson’s property line for more than six years is false.  Appellants contend that the operative effect of this false statement was to establish a public road pursuant to Minn. Stat. § 160.05 (2002) where none had existed before, and that the district court erred in concluding that no questions of material fact exist preventing a determination that respondents did not accomplish a de facto taking of or interference with appellants’ private property rights for public use.

            Appellants contend that respondents took their property without due process and reasonable compensation.  Appellants claim that this taking violated their due-process rights under the Fifth and Fourteenth amendments of the United States Constitution, the Minnesota Constitution, and 42 U.S.C. § 1983.  Appellants also claim that Briesath violated their rights under the First Amendment of the United States Constitution when he asked council members and the city clerk not to speak with Gregory Egan.  Although this claim speaks of a violation of First-Amendment rights, the substance of the claim is that Briesath denied appellants’ their due-process right to a hearing by not letting them speak to council members.  We disagree with all of these claims because they are all based on the incorrect premise that respondents took appellants’ property.

            The supreme court has explained that

[s]ection 160.05, subd. 1, provides no method by which government can take property.  The statute, rather, provides a substitute for the common-law creation of highways by prescription or adverse use.  During the running of the six-year statute, the township and the public are adverse users and, at any time during that period, the landowner may seek damages for trespass, he may bar users from the property, or he may force the township, if it wishes to continue to use his property, to condemn it and pay compensation.  After six years have passed, however, he is estopped from asserting those rights.  The township and the public acquire rights not because they take them, but because the landowner forfeits them by failing to act within the prescribed period.

Moreover, so long as a reasonable time and method exist for obtaining compensation or other appropriate relief— and this is supplied by the six-year term—an affected property owner has no complaint if his request for relief is held barred by long acquiescence and laches or by the running of a statute of limitations.


Shinneman v. Arago Township, 288 N.W.2d 239, 243-44 (Minn. 1980) (citations omitted).

            Although respondents made a false statement that asserted a claim with respect to appellants’ property, there was no taking.  Appellants continue to own the property, and respondents have retracted any claim to the property.  The district court did not err by concluding that no questions of material fact exist preventing a determination that respondents did not take appellants’ property.

            Appellants argue that the district court erred by concluding that no facts are alleged that suggest that because of respondents’ letter, anyone trespassed or entered appellants’ property.  Appellants contend that there was evidence that Olson relied on Briesath’s action in sending the letter as justification for her ongoing trespass.  But even if there was evidence that Olson relied on the letter as a basis to continue using appellants’ property, the district court did not err by dismissing appellants’ trespass claims.

A trespass is committed when a person enters the land of another without consent.   Consent may be implied from the conduct of the parties, but silence alone will not support an inference of consent.


Copeland v. Hubbard Broad,, Inc., 526 N.W.2d 402, 404 (Minn. App. 1995) (citations omitted).  There is no evidence that respondents entered appellants’ property without appellants’ consent, and appellants cite no authority for their claim that respondents are liable for Olson’s entry onto appellants’ property.

            There is also no evidence that respondents evicted or ejected appellants from their property.  An eviction is “a summary court proceeding to remove a tenant or occupant from or otherwise recover possession of real property by the process of law set out in [chapter 504B].”  Minn. Stat. §§ 504B.001, subd. 4 (2002).  Ejectment is an action for possession of real estate in which the plaintiff must show a present or immediate right of possession and a legal estate in the property sought to be recovered.  Levine v. Twin City Red Barn No. 2, Inc., 296 Minn. 260, 263, 207 N.W.2d 739, 741 (1973).  Respondents did not commence any court proceeding to remove appellants from their property or to recover possession of appellants’ property.

            When viewed in the light most favorable to appellants, the evidence does not establish all of the elements of any of the causes of actions appellants asserted in their complaint.  Therefore, the district court did not err by granting respondents summary judgment dismissing appellants’ suit in its entirety.  See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (stating “[a] defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim”).

            Because we have concluded that the evidence does not establish all of the elements of any of the causes of actions appellants asserted in their complaint, it is not necessary to consider whether the district court erred in concluding that respondents are immune from suit.