This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Petition of Ed Cave and Sons, Inc., for a Cartway.


Filed November 1, 2005

Reversed and remanded

Kalitowski, Judge


Lake County District Court

File No. C2-04-434


Bryan N. Anderson, 4401 East Superior Street, Duluth, MN 55804 (for appellants Wayne R. and Susanne M. Schuler)


Tim A. Strom, Hanft Fride, 1000 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802-2094 (for respondent Ed Cave & Sons)


Russell H. Conrow, Lake County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN 55616 (for respondent Lake County)


            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants Wayne R. and Susanne M. Schuler challenge the district court’s decision dismissing their appeal from a cartway proceeding.  Appellants argue that the district court erred in determining it did not have jurisdiction because appellants failed to properly appeal the Lake County Board’s resolution and order granting respondent Ed Cave and Sons a cartway across appellants’ property.  We reverse and remand.



            Whether a court has subject matter jurisdiction is a legal question subject to de novo review.  Garde v. One 1992 Ford Explorer XLT Motor Vehicle, 662 N.W.2d 165, 166 (Minn. App. 2003).  A reviewing court is not bound by and need not give deference to a district court’s legal conclusions.  Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn. 2003).  “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”  Minn. R. Civ. P. 12.08(c).

An appeal to the district court from a cartway proceeding is purely statutory, and “must be taken as the statute directs.”  Schwede v. Town of Burnstown, 35 Minn. 468, 469, 29 N.W. 72, 72 (1886).  The relevant statute here provides:

Within 40 days after the filing of the award of damages any owner or occupant may appeal from the award by filing a notice of appeal with the court administrator of the district court of the county where the lands lie.  However, the owner or occupant must file the notice of appeal within ten days in order to delay the opening, construction, alteration, change, or other improvement in or to the road pursuant to subdivision 10.  The notice of appeal shall be accompanied by a bond of not less than $250, with sufficient surety approved by the judge or the county auditor conditioned to pay all costs arising from the appeal in case the award is sustained.  A copy of the notice shall be mailed by registered or certified mail to the town clerk or any member of the town board.  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, which may include a challenge to the public purpose or necessity of the proposed road or condemnation.


Minn. Stat. § 164.07, subd. 7 (2004) (emphasis added).  Thus, the statute requires a bond as part of the appeal process.  Failure to comply with the statutory requirements deprives the court of subject matter jurisdiction.  Hagemeyer v. Bd. of County Comm’rs, 71 Minn. 42, 44, 73 N.W. 628, 628-29 (1898) (holding that court does not acquire jurisdiction if appellant does not file a copy of the notice of appeal with the town clerk); Schwede, 35 Minn. at 469, 29 N.W. at 72 (holding that the court lacks jurisdiction if appellant fails to file duly-approved bond within the statutory time period).

            Here, appellants challenged the order of respondent Lake County (county) granting respondent Ed Cave and Sons (Cave) a cartway across appellants’ land and awarding appellants damages.  In bringing their appeal, appellants served all the proper parties and filed an appeal bond in a timely manner with sufficient surety approved by the judge.  The bond, which was in the amount of $250, named Cave as the beneficiary.  Subsequently, the district court dismissed appellants’ challenge concluding that it did not have jurisdiction to hear the appeal because appellants were required to file the appeal bond in favor of the county, rather than Cave.  But the statute does not specify the party who must be named as the beneficiary of the bond.  And appellants argue that they complied with the general language of the statute by filing a bond in favor of a real party in interest.  We agree.

            We reject respondents’ argument that because appellants are challenging the county’s decision rather than Cave’s actions, the district court cannot acquire jurisdiction unless appellants file a timely bond in favor of the county.  This argument fails to consider the purpose of an appeal bond.  Bonds protect the party who must bear the costs involved in defending the appeal or other legal proceeding when the appeal fails.  See Minn. Stat. § 164.07, subd. 7 (“The notice of appeal shall be accompanied by a bond . . . to pay all costs arising from the appeal in case the award is sustained.”); see also Hubbard Broad., Inc. v. Loescher, 291 N.W.2d 216, 220 (Minn. 1980) (holding that the purpose of an injunction bond is to protect a party from a wrongfully issued injunction); County of Blue Earth v. Wingen, 684 N.W.2d 919, 923 (Minn. App. 2004) (holding that “[t]he purpose of supersedeas bond conditions is to assure that, pending the outcome of an appeal, the economic risk of the appeal is not borne by the party that prevailed below”).

            Here, Cave cannot obtain the cartway until it pays all damage awards and all costs the county incurs in connection with the cartway proceeding.  Minn. Stat. § 164.08, subd. 2(c) (2004) (“The amount of damages shall be paid by the petitioner to the [municipality] before [the] cartway is opened. . . . [D]amages shall mean . . . costs and expenses which the [municipality] may incur in connection with the proceedings for the establishment of the cartway.”); see also Slayton Gun Club v. Town of Shetek, 286 Minn. 461, 466, 176 N.W.2d 544, 547 (1970) (determining that the cartway petitioner was a real party in interest because he must pay all damages before he may obtain the cartway).  Thus, because Cave bears the costs of defending the appeal, Cave is a real party in interest.

We conclude that because the statute does not specify who must be named as beneficiary of the bond, appellants complied with the statute by filing the bond in favor of the party who needs protection in the event that appellants’ challenge fails.  And because on these facts appellants complied with the statute’s bond requirement, the district court erred in concluding that it did not have subject matter jurisdiction over the appeal.

Reversed and remanded.

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