This opinion will be unpublished and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

A03-1522

 

In re Township Resolution 01-03

Richard H. Luth, et al., petitioners/plaintiffs,

Appellants,

 

vs.

 

Ida Township,

Respondent,

 

Myron J. Burkey, et al.,

Respondents.

 

Filed June 15, 2004

Affirmed

Crippen, Judge*

 

Douglas County District Court

File No. CX-01-377

 

Douglas R. Hegg, Michael J. Dolan, Thornton, Hegg, Reif, Dolan & Bowen, P.A., P.O. Box 819, 1017 Broadway, Alexandria, MN  56308 (for appellants)

 

Peter B. Tiede, Louise Toscano Seeba, Murnane, Conlin, White & Brandt, P.A., 444 Cedar Street, Suite 1800, St. Paul, MN  55101 (for respondent Ida Township)

 

John C. Lervick, Swenson, Lervick, Syverson, Anderson, Trosvig & Jacobson, P.A., P.O. Box 787, Alexandria, MN  56308 (for respondents Burkey, et al.)

 

            Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellants challenge the trial court’s findings of fact provided in justifying its decision that a 33-foot wide public road existed across the non-water side of lake lots owned by appellants.  Because there is evidence sufficient to permit these findings, we affirm.

FACTS

            Appellants Richard Luth, Doris Luth, and Helen Fletcher are owners of property located on Lake Ida in Douglas County.  Appellants’ property was originally part of a larger parcel of property owned by respondent Myron Burkey, who operated a resort on the property from 1960 to 1979.  The property included a roadway that was connected to public roads.  In 1979, Burkey sold 0.3 acres of his resort property and 100 feet of the roadway that runs along the non-lake side of this property to appellants. 

            In March 2001, respondent Ida Township passed a resolution finding that the township had acquired an easement 60-feet wide across the 100 feet of roadway on appellants’ property.  Appellants sought relief in the trial court, challenging the township’s finding of an easement.  The trial court concluded that the township road existed by statutory dedication because, during the time that Burkey operated the resort, the roadway had been maintained to a width of 33 feet by the county (acting for the town) and used by the public over a continuous period of at least six years.  The court also concluded that a 33-foot wide township road existed by common-law dedication.  This was based on the court’s finding that Burkey impliedly intended to dedicate the land, and that the public accepted the land, as suggested by the same facts on public maintenance taken together with Burkey’s acquiescence in this maintenance.  Appellants challenge the trial court’s findings, contending that the court erred by finding that (1) the roadway was publicly maintained, (2) the public used the roadway, (3) the roadway was maintained to 33 feet in width, and (4) Burkey impliedly dedicated the roadway to the public and Ida Township accepted the roadway.[1]  

D E C I S I O N

            “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01.  In applying Minn. R. Civ. P. 52.01, “we view the record in the light most favorable to the judgment of the district court.”  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  This court will not reverse the district court’s judgment merely because we view the evidence differently.  Id.; see Vangness v. Vangness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating “[t]hat the record might support findings other than those made by the [district] court does not show that the . . . findings are defective”).  Rather, to warrant reversal the court’s factual findings must be clearly erroneous or “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Rogers, 603 N.W.2d at 656.  “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).  And “[i]f there is reasonable evidence to support the district court’s findings, we will not disturb them.”  Rogers, 603 N.W.2d at 656.

I.  Statutory Dedication

A road is deemed dedicated to the public to the width of actual use when the road “has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority.”  Minn. Stat. § 160.05 (2002). 

            A.        Maintenance

The trial court determined that there was sufficient maintenance to satisfy Minn. Stat. § 160.05, based on its finding that, while Burkey’s resort was in operation, Harlan Zwieg maintained the roadway for seven years.  Zwieg was employed by Douglas County, carrying out the county’s contractual obligation to maintain the town’s roads.  To satisfy the maintenance requirement, the “maintenance must be of a quality and character appropriate to an already existing public road.”  Shinneman v. Arago Township, 288 N.W.2d 239, 242 (Minn. 1980).  “It is not necessary that every part of a road be worked at government expense or that any particular part receive attention every year of the six-year period.”  Leeper v. Hampton Hills, Inc., 290 Minn. 143, 146, 187 N.W.2d 765, 767-68 (1971). 

Zwieg’s affidavit states that he maintained the roadway during this time period by grading it two to three times per month when there was no snow and by plowing it as needed after snowfalls.  Burkey also testified that Zwieg would grade the roadway as often as once a week.  Thus, the record permits a finding that Zwieg performed the maintenance necessary to satisfy the statutory dedication requirement.  See Minn. Stat. § 160.05; Leeper, 290 Minn. at 147, 187 N.W.2d at 768 (affirming district court’s finding of sufficient maintenance when city laid gravel, plowed, graded, removed weeds and installed culverts within eight-year period); Town of Belle Prairie v. Kliber, 448 N.W.2d 375, 379-80 (Minn. App. 1989) (maintenance requirement fulfilled by city dragging a road a couple of times a year to level it off). 

Appellants assert that Zwieg’s affidavit does not compel a dedication determination because Zwieg may have performed the maintenance as a gratuity or for his own convenience.  But the trial court’s finding of sufficient maintenance is a possible inference based on Zwieg’s testimony that his maintenance work was done as part of his township road work.  And appellants’ contradicting photographs, which were taken in 1984, do not compel another decision.  The photographs were taken after the time of maintenance at issue, and Burkey testified that the photographs do not accurately depict the condition of the road while the resort was in operation and the roadway was maintained by Zwieg. 

            B.        Use

            Appellants further argue that the trial court erred by finding that “[i]t is clear that public use has been established in this case.”  Public use must be shown by clear and convincing evidence.  Town of Wells v. Sullivan, 125 Minn. 353, 355, 357, 147 N.W. 244, 245, 246 (1914).  Use by a comparatively small number of persons may still be “public use.”  Anderson v. Birkeland, 229 Minn. 77, 82, 38 N.W.2d 215, 219 (1949).  For example, a few people using a road for seasonal access to recreational areas may be sufficient.  Id.  Continuous use by as few as three people may constitute public use.  See, e.g., Kliber, 448 N.W.2d at 379. 

            The record shows that while the resort was in operation from 1960-1979, 50 to 100 cars per season would travel on the road at issue and that, in the peak of summer, 20 to 30 cars per day would travel on the road.  The record further shows that as many as three to four non-resort patrons per week would travel on the road to shop at the resort’s store and, each season, approximately 30-40 non-resort patrons would travel on the roadway to use the resort’s boat ramp.  Thus, the record includes sufficient evidence of public use to permit the finding that this statutory dedication requirement has been clearly satisfied. 

            The fact that the Burkeys placed a chain across the road during the winter months does not mandate a contrary result.  For a road to be established by statutory dedication, the road need not be accessible to the public 365 days a year.  Northfork Township v. Joffer, 353 N.W.2d 216, 217-18 (Minn. App. 1984)  (holding that statutory dedication occurred even though road was only used by the public “from spring thaw until first snow” and was not plowed in the winter time). 

            Appellants also contend that the evidence shows insufficient public use because the Burkeys did not contemplate the use of the roadway by the general public.  See Sec. Fed. Savs. & Loan Ass’n v. C & C Invs., Inc., 448 N.W.2d 83, 87 (Minn. App. 1989) (it is improper to infer public dedication where the use contemplated was not for the general public but for a limited clientele), review denied (Minn. Jan. 18, 1990).  We conclude that Security Federal is distinguishable.  The opinion addresses common-law dedication and states a holding confined to evidence of the owner’s intentions, saying that a bank’s acquiescence in allowing its customers, shopping center patrons, and “the public” to use its parking lot to gain access to neighboring businesses did not support the conclusion that the bank had the necessary intent for dedication.  Id. at 87.

            C.        Width

            Appellants also claim that the “record is wholly void of any evidence supporting the Court’s conclusion that the road was maintained to 33 feet.”  But because Zwieg stated in both his affidavit and his deposition that he maintained the road to this width, we conclude that there was reasonable evidence in the record to support the trial court’s finding and that the finding was not “manifestly contrary to the weight of the evidence” so as to warrant reversal.  Rogers, 603 N.W.2d at 656.

II.  Common-Law Dedication

            Under common-law dedication, “a public road (and its width) is established from (1) a landowner’s intent, [either] express or implied[,] to have his land appropriated and devoted to a public use; and (2) the public’s acceptance of that use.”  Township of Villard v. Hoting, 442 N.W.2d 826, 828 (Minn. App. 1989).  The landowner’s intent may be implied from unequivocal acts; it need not be a conscious intent.  Sackett v. Storm, 480 N.W.2d 377, 380 (Minn. App. 1992), review denied (Minn. Mar. 26, 1992).  Public acceptance may be shown by public use of the dedicated property “by a relatively small number of people.”  Id.  No public expenditure for improving or maintaining the roadway need be made for common-law dedication to be found.  Keiter v. Berge, 219 Minn. 374, 379, 18 N.W.2d 35, 38 (1945).  But public acceptance may be inferred from public officers improving and maintaining the dedicated property.  Sackett, 480 N.W.2d at 381. 

            The trial court found that (1) Burkey impliedly intended to dedicate the road by allowing Zwieg to maintain the road and (2) public acceptance of the road was established by both maintenance of the road by the township and by the use of the roadway by the public.  Appellants challenge the trial court’s findings, contending that the evidence regarding maintenance of the roadway and the public use of it do not show common-law dedication.  But the record contains evidence that Zwieg maintained the roadway for seven years while the resort was in operation, and that Burkey did not object to Zwieg’s maintenance of the road.  We conclude that the trial court’s finding regarding dedication intent is not clearly erroneous.  See Henly v. County of Chisago, 370 N.W.2d 920, 923 (Minn. App. 1985) (holding that implied intent to dedicate was shown by property owner’s lack of objection to local government’s establishment and maintenance of the road).  And the trial court’s finding regarding public acceptance of the roadway is not clearly erroneous because the record shows, in addition to public maintenance of the roadway, substantial and continuous public use of it. 

            Affirmed.

 



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

[1] In the alternative, respondents request that this court find that appellants are estopped from denying the existence of a 60-foot wide public road easement across their property.  Because the trial court order must be affirmed for the reasons it states, we will not address this alternative theory, which did not surface in the case before being stated in a closing argument.