This opinion will be unpublished and

may not be cited except as provided by

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








County of Blue Earth, petitioner,





Francis E. Wingen,



Mary J. Wingen,




Filed June 27, 2006


Toussaint, Chief Judge


Blue Earth County District Court

File No. 07-C9-01-002092


Arvid L. Wendland, Wendland Law Office, 825 East Second Street, Post Office Box 247, Blue Earth, MN 56013 (for respondent)


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 County of Blue Earth because respondent moved to dismiss its petition to acquire some of appellants’ land by eminent domain. They challenge the denial of their motion.  Because there is no statutory requirement that appellants recover their costs and attorney fees and because the district court did not abuse its discretion in denying appellants’ motion for costs and attorney fees, we affirm.


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.  County of Blue Earth v. Wingen, Nos. C0-01-1731 & C3-02-17 (Minn. App. Aug. 13, 2002), review denied (Minn. Nov. 19, 2002) (Wingen I).  Respondent then moved to dismiss its petition to take the land by eminent domain.  Appellants moved for the costs and attorney fees they incurred in the eminent domain action. 

1.         Statutory Requirement     

Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr. Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). 

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 (Minn. 2002)  (construing Minn. Stat. §  13.08, subd. 4(a) (2002), which provides that “any aggrieved person . . . may recover costs and disbursements” to mean that  “[a]n award of reasonable attorney fees is not required by the statute and the decision whether to award fees lies within the discretion of the district court”).  Thus, the rules of statutory construction preclude appellants’ reading of  Minn. Stat. § 117.195, subd. 2, and indicate that the district court had discretion to grant or deny their petition for costs and attorney fees.

2.         Abuse of Discretion

            This 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 (Minn. 1987).  The district court’s findings in support of its decision are supported by the record.  The district court found that its rulings on the county’s petitions for both a temporary easement and an eminent domain taking were affirmed by this court and review was denied by the supreme court.  Wingen I supports this finding. 

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 County Board didn’t authorize this type of taking. . . .


. . . [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.