This opinion will be unpublished and

may not be cited except as provided by

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






In re the Matter of Appeal of

DuWade Harris, et al.,

concerning the Turner Township Cartway Order.


Filed November 16, 2004

Affirmed in part, reversed in part, and remanded
Klaphake, Judge


Aitkin County District Court

File No. C4-00-445


Heinrich A. Brucker, Ryan Ryan & Brucker, 201 Minnesota Avenue North, P.O. Box 388, Aitkin, MN  56431 (for appellant Robert S. Graff)


Jeffrey J. Haberkorn, Haberkorn Law Offices, Ltd., 122 Second Street Northwest, Aitkin, MN  56431 (for respondents DuWade Harris, et al.)


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

U N P U B L I S H E D   O P I N I O N


            Appellants Robert and Alice Graff challenge the district court’s grant of summary judgment denying them access to their land by cartway across the land of respondents DuWade and Nancy Harris.  The district court based its decision on In re Daniel, 656 N.W.2d 543 (Minn. 2003), which was decided after this case was commenced, but before the trial on damages in this matter.       

            Because the district court did not err by retroactively applying the law of the Daniel case or by expanding the scope of the appeal to include the question of whether the township order establishing the cartway was proper, we affirm as to those matters.  But because genuine issues of material fact remain about whether appellants had access to their land over a navigable waterway, we reverse the grant of summary judgment and remand for further proceedings.


            On appeal from a summary judgment, the reviewing court considers (1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Statutory construction is an issue of law reviewed de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). 

            1.         Retroactive Application of In re Daniel

            Appellants first contend that the district court erred by retroactively applying In re Daniel, 656 N.W.2d 543 (Minn. 2003).  As a general rule, court decisions overruling prior cases are given retroactive effect, unless the overruling court states that the new rule is to be applied prospectively or if special circumstances exist.  Casper v. Casper, 593 N.W.2d 709, 712 (Minn. App. 1999).  To determine whether an exception to the general rule applies, three factors are considered:  (1) whether the new decision establishes a new principle of law that is either a clear break with past precedent or is one of first impression; (2) whether, in light of the prior history, the purpose and effect of the new rule is advanced by retroactive application; and (3) whether retroactive application creates a degree of injustice or hardship that could be avoided by prospective application.  Summers v. R & D Agency, Inc., 593 N.W.2d 241, 245 (Minn. App. 1999).  In order to limit a decision to prospective application, all three factors must be satisfied.  Id.

            Daniel clarified cartway law by stating that the need for a cartway is not established where the landowner has access over a generally navigable body of water.  Daniel, 656 N.W.2d at 545-46.  The supreme court considered this a clarification and not a reversal of prior law.  Id.  Because the Daniel decision did not announce a new principle of law that is a clear break with past precedent, the district court did not err by applying it retroactively to the case before it.

            2.         Expansion of Scope of Appeal

             Appellants argue that the appeal and cross-appeal from the decision of the town board involved only the issue of damages and that the district court impermissibly expanded the appeal by permitting respondents to challenge the order establishing the cartway.

            The procedures for establishing a cartway are contained in Minn. Stat. § 164.08 (2000).  Subdivision 2(b) states that town board proceedings on cartway issues are to be conducted in accordance with Minn. Stat. § 164.07 (2000) (establishment, alteration, or vacation of town roads).  According to that statute, an appeal from an award of damages must be taken within 40 days after filing of the award, and the notice of appeal “shall specify the award or failure to award appealed from, the land to which it relates, the nature and amount of the claim of appellant, and the grounds of the appeal.”  Minn. Stat. § 164.07, subd. 7.[1]  A further subdivision specifies that the appeal will be tried in the district court “in the same manner as an appeal in eminent domain proceedings under chapter 117.”  Minn. Stat. § 164.07, subd. 8.

            Minn. Stat. § 117.175 (2000) provides for trial of an appeal in eminent domain proceedings.  It states that “the court may direct that issues be framed, and require other parties to be joined and to plead therein when necessary for the proper determination of the questions involved” and that “[t]he court or jury trying the case shall reassess the damages de novo.”  Id., subd. 1. 

            The establishment of a cartway by a town board is a quasi-legislative action.  Horton v. Twp. of Helen, 624 N.W.2d 591, 594 (Minn. App. 2001), review denied (Minn. Jun. 19, 2001).  The scope of review of a town board’s quasi-legislative action is narrow, and this court will reverse only if “(1) the evidence is clearly against the decision, (2) an erroneous theory of the law was applied, or (3) the town board acted arbitrarily and capriciously, contrary to the public’s best interest.”  Id. at 595.  Even this narrow scope of review, however, permits a reviewing court to examine the town board’s decision to determine whether it was based on competent evidence and the law.

            We therefore conclude that the district court acted properly by permitting review of all aspects of the town board’s order.

            3.         Summary Judgment

             Summary judgment is not appropriate where genuine issues of material fact remain unresolved.  Cooper, 460 N.W.2d at 4.  On a motion for summary judgment, the district court must view the evidence in a light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  The district court may not weigh the evidence, but must resolve all factual inferences in favor of the nonmoving party.  Wagner v. Schwegmann’s So. Town Liquor, Inc., 485 N.W.2d 730, 733 (Minn. App. 1992), review denied (Minn. July 16, 1992). 

            In Daniel, 656 N.W.2d at 546, the supreme court held that where the facts are undisputed that the landowner has access to his or her property over a navigable waterway, there is no basis for establishment of a cartway.  In the record before us are three affidavits, two of which state that appellants’ property is periodically not accessible by any navigable waterway and one of which maintains that it is.  The issue of whether appellants have access to their land over a navigable waterway is central to the disposition of this case.  Because the parties have offered conflicting evidence, a genuine issue of material fact exists that renders this matter inappropriate for summary judgment.  We therefore remand for trial on this issue.

            Affirmed in part, reversed in part, and remanded.

[1] This subdivision was amended to include the language “which may include a challenge to the public purpose or necessity of the proposed road or condemnation.”  2001 Minn. Laws ch. 139, § 6.  This amendment became effective on May 22, 2001, after the date of filing of the appeal and cross-appeal here.  2001 Minn. Laws ch. 139, § 8.