This opinion will be unpublished and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
In the Matter of Lorraine Daniels for the Establishment of
a Cartway in Glenwood Township, Pope County, Minnesota.
Filed January 9, 2007
Pope County District Court
File No. 61-C3-04-000400
Kevin K. Stroup, Stoneberg Giles & Stroup, P.A., 300 O’Connell Street, Marshall, MN 56258 (for appellants Robert and Harriet Tholen)
Paul D. Reuvers, Pamela J. Whitmore, Iverson Reuvers LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent Glenwood Township)
Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
This is an appeal from a
partial summary judgment order allowing respondent
D E C I S I O N
“On appeal from summary judgment, we review the
record to determine whether there are any genuine issues of material fact and
whether the district court erred in applying the law.” Horton,
624 N.W.2d at593. In reviewing the record, we view the evidence
in favor of the party against whom summary judgment was granted. Offerdahl
Appellants argue that the district court erred by affirming the town board’s decision to grant Daniels a cartway because she has permissive access to her property over adjoining land. We disagree.
A town board acts in a legislative
capacity when it grants or refuses a cartway petition and will only be reversed
on appeal “when (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.” Horton,
624 N.W.2d at 595 (citing Lieser v. Town
of St. Martin, 255
Here, Daniels originally owned a
contiguous tract of land along
Appellants argue that Daniels has access to the lake pastureland because her son allows her to cross over his property to the lake pastureland. In addition, appellants contend that Daniels could assert an implied easement across her son’s property.
Where a petitioner does not have a
right to use another’s property to access a public road but has permission to
do so, such permissive use does not constitute access under the cartway
statute. Kroyer v. Bd. of Supervisors of
Thus, even if Daniels has permission to get to her land by traveling across her son’s property, absent a legal right to do so, this does not constitute “access” for purposes of the cartway statute.
We also reject appellants’ argument that the cartway should not be established because Daniels has the ability to assert an implied easement across her son’s adjoining property and this ability constitutes “access” under the statute. Appellants essentially argue that Daniels is not entitled to a cartway unless she has exhausted other viable legal remedies that might provide access. Although the parties dispute whether Daniels could successfully assert an implied easement, it is not necessary for us to reach that issue. The plain language of the cartway statute does not include a requirement that a petitioner exhaust other legal remedies.
Appellants rely on Roemer for the proposition that the
cartway statute may not be invoked when the petitioner has the right to assert
an easement of necessity. But the cited language
is dictum and not binding. Roemer, 283
Appellants also argue that the district court erred in affirming the establishment of the cartway because it is being sought for the benefit of third parties and because Daniels landlocked herself. We disagree.
Appellants argue that it is improper to grant Daniels a cartway when she seeks it for the benefit of her daughters to whom she will eventually deed the lake pastureland. But appellants cite no authority requiring, or even allowing, a local unit of government to base its cartway decision on who might own the landlocked property in the future.
Appellants also assert that Daniels should not be granted a cartway because it was her own sale to her son that resulted in the lake pastureland becoming landlocked. Again appellants cite no statutory language or caselaw to support this argument as a basis for the district court to reverse the decision of the township to order a cartway.
Because the cartway statute does not condition the right of a cartway on whether the party seeking it created the need or on who will benefit from the cartway in the future, we conclude the district court did not err.
Finally, appellants argue that the establishment of a cartway across their property is an improper taking for a private purpose because it will only benefit Daniels and her daughters. We disagree.
The government may not take private
property for the sole purpose of transferring it to another private party. Kelo v.
We conclude that the district court did not err in affirming the township’s granting of Daniels’s petition for establishment of cartway.