This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Francis E. Wingen,
Mary J. Wingen,
Filed June 27, 2006
Toussaint, Chief Judge
Francis E. Wingen, 60828 168th Street, Janesville, MN 56048 (pro se appellant)
Mary J. Wingen, 60228 168th Street, Janesville, MN 56048 (pro se appellant)
Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellants Francis E. and
Mary J. Wingen, landowners, moved for costs and attorney fees from respondent
D E C I S I O N
After appellants opposed
respondent’s petition to acquire an easement to some of their land for a road
improvement project, respondent also petitioned to acquire the land by eminent
domain. This court affirmed the granting of respondent’s petition to take
appellants’ land by temporary easement.
1. Statutory Requirement
Statutory construction is a
question of law, which this court reviews de novo. Brookfield
Trade Ctr. Inc. v.
Appellants relied on Minn.
Stat. § 117.195, subd. 2 (2002), providing that “When the [eminent domain] proceeding is . .
. discontinued by the petitioner, the owner may recover from the petitioner
reasonable costs and expenses including attorneys’ fees.” But appellants misread the statute. It provides that “the owner may recover,” not that the owner “must”
or “shall” recover. See Minn. Stat. § 645.44, subds. 15, 15a, 16 (2004) (providing
that “may” is permissive, “must” is mandatory, “shall” is mandatory) (emphasis
added); see also Wiegel v. City of St.
Paul, 639 N.W.2d 378, 385 (
2. Abuse of Discretion
court does not reverse an award or denial of attorney fees absent an abuse of
discretion. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (
The district court found that the county initiated the eminent domain taking action because appellants had challenged the temporary easement action and the county needed the property for a road construction project that was already underway. Testimony of the county’s attorney supports this finding.
Mr. Wingen appeared pro-se at that “quick take”
[temporary easement] hearing and he argued . . . that you can’t condemn for
easement only [because] the statute doesn’t authorize that . . . [and that] the
resolution [we] got from the
. . . [T]he County wants to make sure that we have the authority to go in and level off those hilltops and . . . because of the appeal [of the temporary easement] and in order to insure that we have the right to go in and level off those hilltops to take care of that snow-drifting in the future, we brought this condemnation action to, in essence, convert our . . . easement taking into [an eminent domain] taking.
The district court found that appellants were “intransi[g]ent and uncooperative in their positions” and “fought the [c]ounty at every juncture.” The county public works director stated in an affidavit that “I and my staff were not able to reach an agreement with Mr. Wingen[. T]hough we did discuss it with him, he would not sign an easement agreement. We offered to raise a culvert and do some other drainage related items. He did not accept our offer.” The public works director also indicated in his affidavit that the project could not have been stopped pending appellants’ challenges to the taking because “[t]o stop construction on a project of this magnitude would have resulted in additional demobilization and mobilization contract costs, additional public transportation costs due to temporary surfaces and detours, and additional safety risks due to the public using a partially completed road.” The affidavit supports the finding.
The district court found that the county dismissed the fee simple action because the project was completed and the county’s need for the property no longer existed. This finding is supported by a county attorney’s statement that, once this court had affirmed both the temporary easement and the fee simple taking and the district court had reinstated the temporary easement, the county no longer needed to hold the property in fee simple and therefore moved to dismiss that action.
Finally, the district court found that “under the unique circumstances of this case, the fees and costs which were incurred by [appellants] were not reasonably incurred.” The evidence reflects that appellants opposed the county throughout the project, that the county had to bring its eminent domain action because construction could not be halted while appellants pursued their appeal of the temporary easement action, and that the eminent domain action was dismissed because, by that point, the county had had to acquire landfill from a source other than appellants.
The district court’s denial of appellants’ motion for costs and expenses was based on its findings, and those findings are supported by the record. The denial of costs and expenses was not an abuse of discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.