This opinion will be unpublished and

may not be cited except as provided by

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






In the Matter of Lorraine Daniels for the Establishment of

a Cartway in Glenwood Township, Pope County, Minnesota.


Filed January 9, 2007


Kalitowski, Judge


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 Glenwood Township to establish a cartway over the land of appellants Robert and Harriet Tholen pursuant to a petition for cartway filed by adjacent property owner Lorraine Daniels.  Appellants argue that the cartway should not be established because (1) Daniels already has access to her land over adjoining property and has failed to exhaust other viable legal remedies; (2) cartways should not be established for the benefit of third parties or for a petitioner that landlocked herself; and (3) the granting of the cartway is an improper taking because it does not have a public purpose.  We affirm.


            The Minnesota cartway statute provides for the mandatory establishment of a cartway upon petition by the owner of a tract of land containing at least five acres and to which there is no access to a public road “except over a navigable waterway or over the lands of others.”  Minn. Stat. § 164.08, subd. 2 (2004); Horton v. Twp. of Helen, 624 N.W.2d 591, 594 (Minn. App. 2001), review denied (Minn. June 19, 2001).

            “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 v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).


            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 Minn. 153, 159, 96 N.W.2d 1, 5-6 (1959)).  “When judicially reviewing a legislative determination, the scope of review must necessarily be narrow.”  Sun Oil Co. v. Vill. of New Hope, 300 Minn. 326, 333, 220 N.W.2d 256, 261 (1974).  Appellate court review “is limited to a consideration of whether the [district] court has confined its review to the limited scope of such review and, aside from jurisdictional questions, whether the evidence reasonably supports the determination of the [district] court.”  Lieser, 255 Minn. at 163, 96 N.W.2d at 8.  “Generally, this court will affirm even though we may have reached a different conclusion.”  Horton, 624 N.W.2d at 595.

            Here, Daniels originally owned a contiguous tract of land along Lake Amelia that abutted a public road.  In 1980, Daniels sold most of this property to her son, but retained a portion of undeveloped pastureland along the lake.  The sale to Daniels’s son left the lake pastureland landlocked.  And it is undisputed that there is no existing express easement allowing access to the landlocked lake pastureland.

            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 Spring Lake, 202 Minn. 41, 43, 277 N.W. 234, 235 (1938).  A petitioner’s use of another’s land to access her landlocked property does constitute access when the petitioner has a legal right to such use by way of an express easement.  Roemer v. Bd. of Supervisors of Elysian Twp., 283 Minn. 288, 291, 167 N.W.2d 497, 499 (1969).

            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 Minn. at 291-92, 167 N.W.2d at 500.  Absent controlling authority conditioning the benefits of the cartway statute on the exhaustion of other legal remedies, we decline to read such a condition into the statute.  The plain language of the statute does not evince a legislative intent to exhaust other legal remedies.  Thus, we conclude that the district court did not err by finding that there was no access to the lake pastureland for purposes of the cartway statute. 


            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. City of New London, 125 S. Ct. 2655, 2661 (2005).  But, “it is equally clear that a State may transfer property from one private party to another if future ‘use by the public’ is the purpose for the taking.”  Id. In Minnesota, “[w]hether a way is public or private does not depend upon the number of people who use it.  It is public if every one who desires to use it may lawfully and of right do so.”  Powell v. Town Bd. of Sinnott Twp., 175 Minn. 395, 398, 221 N.W. 527, 528 (Minn. 1928).  Thus, so long as a cartway is legally available to anyone desiring to use it, it has a public purpose.  Id. Here, the cartway across appellants’ land has a public purpose because the public at large will have the right to use it.

            We conclude that the district court did not err in affirming the township’s granting of Daniels’s petition for establishment of cartway.