This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1125

 

 

In re:  HUC Pipeline

Condemnation Litigation.

 

 

Filed May 4, 2004

Affirmed in part; dismissed in part
Klaphake, Judge

 

Martin County District Court

File No. CX-03-220

Watonwan County District Court

File No. C3-03-128

Brown County District Court

File Nos. CX-03-221/C6-03-300/C3-03-304/C9-03-274

Nicollet County District Court

File Nos. C6-03-194/C3-03-282/C3-03-248

Sibley County District Court

File No. C7-03-88

McLeod County District Court

File Nos. CX-03-563/C5-03-678

 

 

David A. Allgeyer, Ann E. Kennedy, Lindquist & Vennum P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellants landowners)

 

Reed H. Glawe, Gislason & Hunter LLP, 2700 South Broadway, P.O. Box 458, New Ulm, MN  56073-0458; and

 

Michael J. Long, Thies & Long, P.A., 703 East 11th Street, Glencoe, MN  55336; and

 

Bruce E. Hanson, Oppenheimer, Wolff & Donnelly LLP, 3300 Plaza VII, 45 South Seventh Street, Minneapolis, MN  55402 (for respondents City of Hutchinson and Hutchinson Utilities Commission)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellants are owners of land that respondent City of Hutchinson (the city), through its public utility, the Hutchinson Utilities Commission (the HUC), has condemned in order to create an easement for a natural gas pipeline.  Appellants challenge the district court’s quick-take condemnation order, asserting that the city lacks authority to condemn land through six counties for this purpose.  Appellants further argue that the quick-take proceeding was defective because the description of land to be condemned was insufficient and because the city failed to deposit enough money to cover appellants’ potential losses.

            Because the city has authority to exercise its power of eminent domain under its charter and relevant state statutes, we affirm as to public necessity.  Because the remaining issues are not appealable at this stage of the proceedings, we dismiss the balance of the appeal.

D E C I S I O N

            Appellate review of the district court’s interpretation of the quick-take statute is a question of law subject to de novo review.  In re Condemnation by City of Minneapolis, 632 N.W.2d 586, 589 (Minn. 2001).  Generally, an order granting a condemnation petition is construed as an intermediate, nonappealable order, but an aggrieved party may challenge the issue of public necessity in a direct appeal from such an order.  Blue Earth County v. Stauffenberg, 264 N.W.2d 647, 649-50 (Minn. 1978).  On appeal, only the issue of public necessity is examined; the supreme court has declined to extend the right to appeal to any other issue raised in a condemnation order.  Alexandria Lake Area Serv. Region v. Johnson, 295 N.W.2d 588, 590 (Minn. 1980); see also City of Duluth v. Stephenson, 481 N.W.2d 577, 578 (Minn. App. 1992), review denied (Minn. May 15, 1992).

            Appellate review of the district court’s determination that a taking is necessary for a public purpose is narrow.  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 we will not reverse the district court’s decisions on these matters unless clearly erroneous.  Id. at 599.  Issues other than public necessity and purpose are reserved for appeal after a final order is entered.  Johnson, 295 N.W.2d at 590. 

            The city argues that the issue regarding its authority to condemn is not appealable because it is not related to public necessity, which is the sole issue appealable at this stage in the proceedings.  We disagree.  If the city lacks authority to condemn, it cannot have a public purpose or show a public necessity.  We therefore review, as a public necessity issue, appellants’ challenge to the city’s authority to exercise its power of eminent domain over a 90-mile route through six counties.

            The city’s power to exercise eminent domain is based in its city charter and in state statutes.  The city is a home rule charter city.  As to local matters, cities operating under home rule charters generally have all the powers that the state has, except when the powers have been expressly or impliedly withheld under the state constitution or state law.  Nordmarken v. City of Richfield, 641 N.W.2d 343, 347 (Minn. App. 2002), review denied (Minn. June 18, 2002).  The city’s charter expressly permits it to acquire “by purchase, gift, condemnation or otherwise, any property, either within or without its boundaries, that may be needed by the city for any public purpose.”  Hutchinson, Minn., City Charter § 9.01.  The charter further directs the city to proceed “according to Minnesota Statutes, Chapter 117 or other applicable law.”  Id.  The charter also invests the HUC with the control and management of, among other things, the gas plant and gas distribution system, including the purchase of fuel.  Id. §§ 11.01, .04. 

            Minn. Stat. § 412.321, subd. 3 (2002), permits a city to extend a public utility outside its boundaries so long as it does not extend into another incorporated municipality without its consent.  Appellants correctly note that chapter 412 applies only to statutory cities.  See Minn. Stat. § 412.016, subd. 1 (2002).  Nevertheless, Minn. Stat. § 410.33 (2002), provides that if a city charter is silent on a matter that is addressed for statutory cities in chapter 412 or other general law, and general law does not prohibit a city charter from addressing the matter, the city may apply general law.  We therefore conclude that under city charter and state statutes, the city has authority to use its power of eminent domain beyond city limits for the purpose of acquiring easements for a natural gas pipeline.

            Appellants also raise issues involving the property description and damages.  Because these issues are not appealable at this stage of the proceedings, we decline to address them and dismiss the remainder of this appeal.

            Affirmed in part; dismissed in part.

           



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