This opinion will be unpublished and

may not be cited except as provided by

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







Dale Scherber, et al.,





Hennepin County,




Filed September 16, 2003

Affirmed in part, reversed in part, and remanded;

motion granted

Halbrooks, Judge



Hennepin County District Court

File No. AP02009735


Carolyn V. Wolski, Bradley J. Gunn, Peggy Kline Kirkpatrick, Leonard, Street and Deinard, 150 South 5th Street, Suite 2300, Minneapolis, MN 55402 (for appellants)


Amy Klobuchar, Hennepin County Attorney, Julie K. Bowman, Assistant County Attorney, A-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)




            Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants contend that the district court improperly dismissed their claims for inverse-condemnation and declaratory relief.  Because we conclude that the district court did not err by dismissing the inverse-condemnation claim on the ground that appellants, as non-abutting property owners, have not suffered a compensable taking, we affirm that dismissal.  But because we conclude that the district court erred by dismissing appellants’ declaratory-judgment claim on a rule 12 basis, we reverse and remand that claim for a determination on the merits following an opportunity for discovery. 


            Appellants Dale and Marlene Scherber own and operate appellant Hassan Sand and Gravel, Inc. (Hassan) on 100 acres of property in northwest Hennepin County.  Hassan has been in business since 1970.  Hassan quarries, sells, and transports sand and gravel products, primarily to construction sites located within 20-25 miles of the business site.  Hassan is located approximately one-quarter mile south of the Crow River on a private gravel road, approximately .9 mile from County Road 116.  Berning’s Mill bridge is an extension of County Road 116 and spans the Crow River, the dividing line between Hennepin and Wright Counties.  Because a significant portion of Hassan’s business takes place in Wright County, Hassan’s trucks have routinely used the bridge over the Crow River. 

The bridge was rebuilt in 1931 and is co-owned by respondent Hennepin County and Wright County.  An annual inspection of the bridge is performed.  In 1974, Hennepin County imposed load restrictions as the bridge deteriorated due to age.  Upon inspection in 1994, load limits on the bridge were reduced from 22 tons (per vehicle) and 36 tons (per truck and trailer or semi-trailer combination) to 17 tons and 27 tons, respectively.  Under the 1994 restrictions, appellants’ drivers could only use the bridge when their trucks were empty.  In 2000, the load limits were further reduced to 9 and 15 tons, respectively.  With the most recent change, appellants’ trucks, whether loaded or empty, are precluded from any use of the bridge.

The alternative route for appellants’ trucks to reach customers in Wright County is through the north side of Rogers and across the Crow River on Highway 101.  Per roundtrip, this alternative route is 16 miles longer than if the trucks were to travel over the bridge.  As a result, appellants assert that the bridge’s current weight restriction has cost them approximately $175,000 in additional driver time, fuel, and wear and tear on the trucks. 

Appellants brought an action against Hennepin County alleging inverse condemnation for denial of bridge access due to the increased weight restrictions and requesting a declaratory judgment that the county tortiously failed to carry out its statutory duty to maintain the bridge.  Hennepin County brought a motion to dismiss on the pleadings pursuant to Minn. R. Civ. P. 12.02(e), or, in the alternative, for summary judgment, on the ground that the change in the weight restriction was a legitimate exercise of the county’s police powers, and any resulting loss to appellants, as non-abutting property owners, is not a compensable taking.  The district court granted Hennepin County’s motion to dismiss with prejudice, but did not reach Hennepin County’s alternative motion for summary judgment.  The court held that, “[b]ecause the weight restriction is a legitimate exercise in state police power and [appellants] are non-abutting owners with no injury distinct from that of the general public,” no taking occurred.  The court also dismissed appellants’ declaratory-judgment action, reasoning that Hennepin County is entitled to statutory immunity. 

This appeal followed.  After Hennepin County made its appellate submissions, appellants filed a motion to strike all portions of those submissions related to Hennepin County’s motion for summary judgment, which was not considered by the district court.




Appellants argue the district court erred by dismissing their claim after concluding that they suffered no constitutionally compensable damage by Hennepin County’s imposition of weight restrictions on the bridge because their property does not abut County Road 116 and because the damage they suffered was not different in kind from the damage suffered by the general public.

This court reviews de novo cases dismissed for failure to state a claim under Minn. R. Civ. P. 12.02(e) to determine whether the pleadings set forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  A claim should be dismissed only if it “appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded.”  Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quotation omitted).  It is immaterial to a reviewing court whether or not the pleader can prove the facts alleged.  U.S. W. Comm., Inc. v. City of Redwood Falls, 558 N.W.2d 512, 515 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). 

Minn. Const. art. 1, § 13, provides, “Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.”  “[A] property owner is entitled to damages for a constitutional taking by the state of his right of reasonable, suitable, and convenient access to and from his property.”  Gibson v. Comm’r of Highways, 287 Minn. 495, 499, 178 N.W.2d 727, 730 (Minn. 1970).  The “operative question” in takings claims is whether the action deprived a property owner of the right of reasonable access.  See Johnson v. City of Plymouth, 263 N.W.2d 603, 607 (Minn. 1978).  “The existence of reasonable access is . . . a question of fact to be determined in light of the circumstances peculiar to each case.”  Id.

“The weight of authority, including Minnesota, treats access to a public highway from abutting property as a right which may not be denied without compensation.”  Hendrickson v. State, 267 Minn. 436, 440, 127 N.W.2d 165, 169 (1964) (emphasis added).  “Those who are not abutting owners have no right to damages merely because access to a conveniently located highway may be denied, causing them to use a more circuitous route.”  Id. at 442, 127 N.W.2d at 170-71.  “[I]f the regulation or restriction falls within the state’s ‘police power,’ no compensable loss has occurred. . . . No compensable damages are sustained by [weight] restrictions and regulations which govern all motorists, including abutting property owners, once they are on the traveled portion of the thoroughfare.”  Id. at 441, 127 N.W.2d at 170. 

            Here, it is undisputed that appellants’ property does not abut County Road 116 and that Hennepin County legitimately exercised its police power by imposing a weight restriction on the bridge.  Instead, appellants argue the weight restriction can constitute a compensable taking even with respect to non-abutting property owners if those owners can show a unique and special injury to their reasonable and convenient access to a road.  We disagree.

            This court has previously held that “Hendrickson limits compensation for loss of convenient access to owners of land abutting the affected street or road.”  Finke v. State, 521 N.W.2d 371, 376 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).  In arguing for an extension of the right of convenient access to non-abutting property owners, appellants cite to the statement in Hendrickson that “[t]hose who are not abutting owners have no right to damages merely because access to a conveniently located highway may be denied, causing them to use a more circuitous route.”  267 Minn. at 442, 127 N.W.2d at 170-71.  Appellants urge us to interpret this language to mean that non-abutting landowners are entitled to damages for a legitimate taking if they can show more than mere circuity of route.  In Finke, we rejected a nearly identical argument, based on the same language from Hendrickson, to relax the abutment requirement.  See Finke, 521 N.W.2d at 375-76 (rejecting argument that abutment is not required for compensation but is merely one of “a number of sound factors” to consider in determining the existence of a compensable taking).

            Second, even were we to disregard the established abutment requirement, we do not agree with appellants’ contention that they have suffered special damages.  A party seeking compensation for denial of access to a thoroughfare must show “[t]he damage to him [is] different in kind and not merely in degree from that experienced by the general public.”  Hendrickson, 267 Minn. at 442, 127 N.W.2d at 170.  Appellants argue their injury is different in kind from that experienced by the public because they must travel 16 extra miles on each round trip to Wright County.  We disagree.  First, the weight restrictions apply to the general public; no vehicles exceeding the weight limit may traverse the County Road 116 bridge.  Second, the extra distance is a difference of degree, not of kind. 

            Hendrickson “did not extend the right of convenient access to owners of non-abutting property,” Finke, 521 N.W.2d at 376, and we decline to do so here.  The district court did not err by granting respondent’s motion to dismiss the inverse condemnation claim pursuant to Minn. R. Civ. P. 12.02(e).


            Appellants argue the district court erred by concluding solely on the basis of the pleadings that Hennepin County is statutorily immune from a claim of tortious failure to maintain the bridge.  Appellants contend a determination of statutory immunity requires a fact-intensive analysis that may not be satisfactorily conducted solely on the basis of the pleadings.  We agree. 

In granting Hennepin County’s motion to dismiss, the district court noted that appellants’ tort claim arises from Hennepin County’s decision to defer maintenance and replacement of the bridge and that under Minn. Stat. § 466.03, subd. 6 (2002), a “county is immune from any ‘claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.’”  The court concluded that appellants’ claim “is exactly the type of claim from which the County is statutorily immune, assuming that the decisions are planning level and not operational level in nature.”  Because the district court found that the decisions involved were planning-level decisions, it determined that Hennepin County is immune from appellants’ claims under Minn. Stat. § 466.03, subd. 6.

            Appellants argue that the district court erred because their pleadings do not allege any facts that would allow a determination of whether Hennepin County’s actions are immune from liability, and assert that the court improperly considered materials outside of the complaint, namely voluminous materials submitted by Hennepin County.  They also contend that a rule 12 motion to dismiss cannot be based on a fact-dependent defense where the pleadings allege no facts that would support the defense and no discovery has taken place.  We agree.

            When reviewing a motion to dismiss pursuant to Minn. R. Civ. P. 12.02(e), this court may not consider materials outside of the pleadings, and all assumptions made from the pleadings must favor the non-moving party.  N. States Power Co. v. Franklin, 265 Minn. 391, 395-96, 122 N.W.2d 26, 29-30 (1963). 

            As a general rule, a county is “subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties.”  Minn. Stat. § 466.02 (2002).  This rule does not apply to claims “based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.”  Minn. Stat. § 466.03, subd. 6 (2002).  “[T]he purpose of immunity is to protect government officials from the burdens of discovery and trial.”  Elwood v. Rice County, 423 N.W.2d 671, 674 (Minn. 1988).  The party who asserts an immunity defense has the burden to demonstrate facts showing that it is entitled to immunity.  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).  Whether an immunity defense applies is a question of law.  Elwood, 423 N.W.2d at 675.  “Pursuant to statutory immunity, a county’s conduct is protected only when the county produces evidence showing that the conduct at issue was of a policy-making nature involving social, political, or economic considerations.”  Fisher v. County of Rock, 596 N.W.2d 646 652 (Minn. 1999) (citation omitted); see, e.g., Gerber v. Neveaux, 578 N.W.2d 399, 404 (Minn. App. 1998) (noting that conclusion was based on evidence regarding whether the state had policy regarding construction or inspection and whether appellant followed the policy), review denied (Minn. July 16, 1998).

            While the court may base its decision on the pleadings alone, the standard for proving statutory immunity requires proof from Hennepin County.  This creates an apparent conflict, and although rule 12.02 suggests that a motion to dismiss be treated as a motion for summary judgment if matters outside of the pleadings are presented to the court, and the court does not exclude them, here the district court appears to have excluded additional materials.  The court stated

[t]he County submits voluminous facts in support of its motion regarding the maintenance of the Bridge, none of which are appropriate for consideration on a motion to dismiss under Rule 12 of the Minnesota Rules of Civil Procedure.  Therefore, the facts for the purposes of this motion are assumed as true as alleged in the [appellant’s] Amended Complaint.


Examination of an entity’s assertion of statutory immunity is necessarily fact-intensive because “statutory immunity should be narrowly construed” and “[t]here is a ‘gray area’ dividing protected and unprotected decisions.”  Conlin v. City of St. Paul, 605 N.W.2d 396, 400, 403 (Minn. 2000).  Here, although immunity would protect the city from the burdens of discovery, the court simply had insufficient evidence before it to determine whether immunity attached and to grant Hennepin County’s motion to dismiss.  We therefore remand to the district court. 

Because the district court did not consider respondent’s motion for summary judgment, we grant appellants’ motion to strike from the record all portions of respondent’s submissions on appeal related to respondent’s motion for summary judgment.

Affirmed in part, reversed in part, and remanded; motion granted. 


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