may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Town of Hyde Park,
Filed April 28, 1998
Affirmed in part, remanded in part
Wabasha County District Court
File No. C5-97-13
Donald L. DeVaugh, 305 West Broadway, P.O. Box 668, Plainview, MN 55964 (for appellant)
Considered and decided by Harten, Presiding Judge, Short, Judge, and Amundson, Judge.
Appellant town challenges the district court's reversal of town board's denial of respondents' petition for establishment of a cartway to provide access to respondents' land. Appellant argues that (1) respondents were not entitled to a cartway; (2) the district court did not have authority to establish a cartway; and (3) the impacted property owners were not properly served with notice of appeal. We affirm in part and remand to determine the issue of notice.
only when it appears that the evidence is practically conclusive against it, or that the local board proceeded on an erroneous theory of law, or that it acted arbitrarily and capriciously against the best interests of the public.
Id., 255 Minn. at 158-59, 96 N.W.2d 5-6.
Upon petition presented to the town board by the owner of a tract of land containing at least five acres, who has no access thereto except over the lands of others, or whose access thereto is less than two rods in width, the town board by resolution shall establish a cartway at least two rods wide connecting the petitioner's land with a public road.
Minn. Stat. § 164.08, subd. 2 (emphasis added). A reasonable analysis regarding the existence of access is essential to a resolution. Hyde Park argues that the Schachts could build a road over their own property to connect with Highway 68. The district court, however, found
[t]hat [the Schachts'] land is inaccessible except over the land of others because, although said parcel is adjacent to a public road, [the Schachts]could only gain access from the public road by constructing an access road up a steep and rocky hillside at a prohibitive cost which was estimated [at] $75,000 to $100,000 by the uncontradicted testimony of [the Schachts].
A 1938 attorney general opinion dealing with a similar situation states:
Even though a person's land adjoins a public highway we believe that the town board may establish a cartway over another person's land if, because of natural obstacles, said first party does not have "access" to such highway.
Op. Att'y Gen. 3776-1 (June 23, 1938). We agree. In 1945, the supreme court determined that a town's claim that the property owner had access to a road was not valid because it required passage through a muddy lake, and that the evidence showed that "it was impracticable to build a road across it." State ex. rel. Rose v. Town of Greenwood, 220 Minn. 508, 514, 20 N.W.2d 345, 348 (1945). In this case, there is no disagreement about the topography of the Schachts' property regarding the area it borders with Highway 68: it has high bluffs, and is covered with brush. We agree with the district court's conclusion that it would be unreasonable to characterize the Schacht's property as having access to the highway. Here, as was true with the muddy lake in Rose, it would be "impracticable" to build a road through the Schachts' bluffs. Accordingly, the district court did not err in its findings.
Hyde Park argues that the district court's decision establishes precedent which would require the establishment of a cartway or other road in any situation where it would be expensive for the property owners to create access over their own land. We note, however, that the district court's order made the Schachts financially responsible for the costs of construction of the cartway, and solely responsible for maintenance of the cartway. Surely the operation of market forces would preclude unwarranted access over another landowner's property.
Affirmed in part and remanded in part.