This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).








Mower County,


Paul J. Heimer, et al.,



Filed July 17, 2007


Peterson, Judge



Mower County District Court

File No. 50-CV-06-220



Kristen M. Nelsen, Mower County Attorney, 201 First Street Northeast, Austin, MN  55912 (for respondent)


Gary A. Gittus, Gittus Law Office, 423 Third Avenue Southeast, Rochester, MN  55904 (for appellants)



            Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order granting respondent Mower County title and possession of property under the “quick-take” condemnation statute, Minn. Stat. § 117.042 (2006), appellant-landowners argue that taking their land to construct a bicycle trail is unconstitutional because a bicycle trail is not a public purpose and the bicycle trail can be constructed on an existing highway right of way without taking their land.  We affirm.


            In August 2005, Mower County began negotiating with appellants to acquire land to construct a portion of the Shooting Star bicycle trail from Adams to Taopi on or adjacent to an abandoned railroad right of way.  In February 2006, the Mower County Board of Commissioners adopted resolutions directing the county attorney to obtain ownership of parcels of land from appellants pursuant to Minnesota Statutes chapter 117, which establishes procedures for exercising the power of eminent domain.     

            On February 17, 2006, Mower County served and filed a notice of lis pendens and a notice of intent to take possession of appellants’ land.  Mower County moved for an order transferring title and possession of the land and scheduled a hearing on the motion.  On March 29, 2006, the landowners filed an objection and a request for an injunction.  Following a hearing, the district court issued an order granting Mower County immediate possession of and title to appellants’ land, subject to the requirements of compensation to appellants as set forth in chapter 117.  This appeal followed.[1]


            Private property cannot be taken for public use without just compensation.  U.S. Const. amend. V; Minn. Const. art. I, § 13.

            Before condemning private land, a condemning authority . . . must determine that there is a public use for the land and that the taking is reasonably necessary or convenient for the furtherance of that public use.  Although we have said that questions of public use and necessity are judicial questions, the scope of judicial review of the condemning authority’s determination of these questions is actually narrower than that characterization might imply.  This is because the determinations of the condemning authority are regarded as legislative decisions which will be overturned only when they are manifestly arbitrary or unreasonable.  Thus, there are two levels of deference paid to condemnation decisions:  the district court gives deference to the legislative determination of public purpose and necessity of the condemning authority and the appellate courts give deference to the findings of the district court, using the clearly erroneous standard.


Lundell v. Coop. Power Ass’n, 707 N.W.2d 376, 380-81 (Minn. 2006) (footnote omitted) (quotations and citation omitted). 

            Whether the condemnation is for a public purpose and necessary are fact questions, which we will reverse only if the district court’s findings are clearly erroneous.  County of Stearns v. Voller, 584 N.W.2d 800, 802 (Minn. App. 1998).  In determining whether a finding is clearly erroneous, we view the evidence in the light most favorable to the district court’s findings, Trondson v. Janikula, 458 N.W.2d 679, 682 (Minn. 1990), and defer to the district court’s credibility determinations, Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  We will determine that a finding is clearly erroneous only if we are “left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). 

If it appears that the record contains some evidence, however informal, that the taking serves a public purpose, there is nothing left for the courts to pass upon. . . .  The court is precluded from substituting its own judgment for that of the Authority as to what may be necessary and proper to carry out the purpose of the plan.


City of Duluth v. State, 390 N.W.2d 757, 763 (Minn. 1986) (quotation omitted). 

            The proposed taking need not be absolutely necessary, but need only be “reasonably necessary or convenient for the furtherance of a proper purpose.”  Id. at 764-65 (quotation omitted).  “[M]erely suggesting possible alternatives to the [condemning authority’s] plan does not support a finding of arbitrariness.”  Id. at 766 (quotation omitted).  Thus, the condemning authority’s decision may be overturned only if it is arbitrary, unreasonable, or if the evidence against necessary or public use is overwhelming.  Id.  at 764.    

            Appellants argue that because a bicycle trail is solely recreational in nature, a bicycle trail is not a public purpose.  But appellants cite no authority for their implied assertion that a recreational purpose is not a public purpose.  To support its finding that a bicycle trail is a public purpose, the district court cited Minn. Stat. § 174.01, subd. 2(14) (2006), which states that a goal of the state transportation system is “to promote and increase bicycling as an energy-efficient, nonpolluting, and healthful transportation alternative,” and Minn. Stat. § 160.265 (2006), subdivision 1 of which directs the commissioner of transportation to establish a program to establish, develop, maintain, and operate a system of bikeways.  The district court’s finding is also supported by the resolution adopted by the Mower County board, which states that “[a]lternative transportation trails are a recognized means of multi-modal transportation” and that it is in the best interest of the county that the development and construction of the Shooting Star Alternative Transportation Trail between Taopi and Adams be completed during 2006 to avoid termination of a federal grant for developing the trail.  The district court’s finding that a bicycle trail should be deemed a public purpose is not clearly erroneous.

            Appellants also argue that taking their land is not necessary because the bicycle trail can be constructed on an existing highway right of way without condemning private land.  Appellants contend that because the trail can be built on an existing right of way, the county’s condemnation decision is arbitrary.  But merely suggesting a possible alternative to Mower County’s plan does not support a finding of arbitrariness.  The district court found that because the existing highway is a curvy road with moderate to heavy traffic flow and lots of trucks, a bicycle trail placed on the right of way would be too narrow and too dangerous and would not accomplish the goal of providing safe transportation.  The district court also found that constructing the trail on appellants’ land is necessary to provide a connection with other planned trails and avoid a gap in the Shooting Star trail.  These findings are supported by the testimony of the Mower County highway engineer.  Because constructing the trail on appellants’ land will avoid a gap in the trail and provide a trail that is safer than a trail placed on the existing highway right of way, the district court’s finding that taking appellants’ land is reasonably necessary to further a public purpose is not clearly erroneous.


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


[1] In a previous order, this court dismissed the part of this appeal that challenged the district court’s determination that respondent has authority to condemn appellants’ land and ordered that the balance of the appeal from the order determining the public purpose and necessity for the taking shall proceed.