This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Kenneth R. Kooiker,



City of Coon Rapids,


Filed February 3, 1998


Crippen, Judge

Anoka County District Court

File No. CX-94-14462

Timothy R. Duncan, Marcia B. Haffmans, Coleman, Hull & van Vliet, P.L.L.P., 8500 Normandale Lake Boulevard, Suite 2110, Minneapolis, MN 55437 (for appellant)

Mark A. Myhra, Greene Espel, P.L.L.P., 333 South Seventh Street, Suite 1700, Minneapolis, MN 55402, Tammi A. Fredrickson, Assistant City Attorney, City of Coon Rapids, 11155 Robinson Drive, Coon Rapids, MN 55433-5397 (for respondent)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Forsberg, Judge.[*]



In the inverse condemnation suit of appellant Kenneth Kooiker, the trial court employed an erroneous standard of law by not considering the reasonableness of the city's use of its sewer and street easement. However, because the record does not demonstrate a lack of reasonableness in the city's use, we affirm.


In 1965, respondent City of Coon Rapids acquired a permanent public easement along Mississippi Drive for "sanitary sewer and street purposes." In 1974, appellant purchased a vacant 300-foot parcel between Mississippi Drive and the Mississippi River; the parcel was later divided into three 100-foot parcels. In 1993, the city installed a seven-foot-high, five-foot-wide electrical panel box on Mississippi Drive directly adjacent to Kooiker's property. The control box is used to handle the city's sewage system.

In 1995, appellant initiated an inverse condemnation action, arguing that the city, through its placement of the control box, had infringed on his implied easement for view. The trial court granted the city's motion for summary judgment, holding that there were no factual issues regarding the city's proper use of its public easement. The court reasoned that the legal barrier of proper use did not entail consideration of whether the use reasonably impaired property owner's easements of access, light, and air.


In reviewing a summary judgment, this court must ask whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We must view the evidence "in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

An owner of property abutting a public street has implied easements of light, air, and view over the street. Haeussler v. Braun, 314 N.W.2d 4, 7 (Minn. 1981). These easements are "property" within the meaning of the Minnesota Constitution. Castor v. City of Minneapolis, 429 N.W.2d 244, 245 (Minn. 1988). But an owner's property interest is subservient to the public easement in the street. Haeussler, 314 N.W.2d at 7. When a property owner's implied easement is obstructed by an improper use of the public easement, a taking can be found. Id. at 8.

Kooiker argues that the trial court erred in its application of a proper use standard for the city's easement; Kooiker asserts that the correct standard for examining a use of a public easement is whether the use was proper and reasonable. To support this argument, Kooiker relies particularly on two inverse condemnation cases that included analysis of reasonableness or practicality. See Castor, 429 N.W.2d 245; Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N.W. 111 (1895). In Cater, a property owner argued that construction of a telephone line on the highway abutting his property interfered with his property rights. The court found for the telephone company, which was using the public easement for the highway, stating that uses such as the transmission of intelligence are included in the easement,

provided they are not inconsistent with the reasonably safe and practical use of the highway in other and usual and necessary modes, and provided they do not unreasonably impair the special easements of abutting owners in the street for purposes of access, light, and air.

Id. at 545, 63 N.W. at 113. Cater is resurrected in Castor, in which abutting property owners claimed that a skyway infringed on their implied easements of air, light, and view. The Castor court recited the language of Cater, emphasizing that innovative uses are lawful "provided" that they involve no "unreasonable" impairment of abutting owners' easement rights. Castor, 429 N.W.2d at 245-46. The supreme court added:

The skyway in this case undoubtedly fulfills a legitimate public purpose. But to say the public benefits is not to say this unusual structure constitutes a proper street use. The block-long skyway runs the entire length of petitioners' building rather than simply across the alley. It stands four to five feet from the building and entirely obliterates the space above the alley, adjacent to petitioners' second-story windows. This is not, as telephone lines were in 1895, simply "a newly discovered method of using the old public easement." Cater, 60 Minn. at 548, 63 N.W. at 114. We find something closer to appropriation of the alley, at petitioners' expense.

Castor, 429 N.W.2d at 246.

Looking at the spectrum of Minnesota caselaw on takings, we observe:

a. Castor. This significant recent opinion did more than recite the reasonableness standard; it applied it. By examining not only the propriety of the public easement in question, but also determining that the skyway "entirely obliterates the space above the alley," the court incorporated an analysis of reasonableness into the proper use standard. Id.

b. Cater. This case likewise announced the concept of reasonableness of the easement. While the court concluded that the public use did not impair the rights of abutting owner, it discussed the effects of improvements on owners, noting that the same improvements might be objectionable in an urban environment. Cater, 60 Minn. at 546, 63 N.W. at 113.

c. Adams v. Chicago, Burlington & Northern Railway, 39 Minn. 286, 39 N.W. 629 (1888). The opinion in this railroad case did not directly discuss reasonableness, but the court's holding precludes rejection of the principle; the court analyzed the propriety of use by assessing its effect of use on the abutting property owners' right to light, air, and view.

d. Haessler. Here, the supreme court found that the construction of sound barriers was a proper use of the highway easement. The dissent, noting that compensation must be paid for a use that "unreasonably impairs" rights of abutting property rights, takes issue with the majority's application of Cater and other takings holdings. Speaking on the fact that the sound barriers were constructed with good intentions, the dissenting justice wrote:

Unfortunately, they have created a far greater detriment to the interests of these abutting landowners. Just as we found a commercial railroad which was not a benefit to the general public to be an improper street use, Adams v. Chicago, Burlington & Northern Railroad, 39 Minn. 286, 39 N.W.2d 629 (1888), here too the purpose of the sound barriers does not serve to benefit the general public and thus does not constitute a proper street use.

Haeussler, 314 N.W.2d at 11-12. The dissent is premised on a different application of law, not a different standard: the majority determined that the use in question was "proper" after fully evaluating the effect of the use on the easement rights of abutting landowners. Id. at 8-9.

In sum, as a fundamental part of takings law in Minnesota, there are some unusual cases, such as Castor and Adams, where the degree of impairment makes a use improper. And all pertinent cases are consistent with the concept that propriety of use cannot be determined without consideration of the degree of the use's interference with the abutting property owner's implied easement of light, air, and view (i.e., the reasonableness of the use).

The trial court's decision is not problematic for its failure to find the public use unreasonable, but for eliminating consideration of landowner's rights. While appellant is correct in asserting that a decision of propriety of use must include a consideration of reasonableness, we conclude that this is not one of the unique cases in which the use represents an unreasonable impairment of the property owner's enjoyment of implied easements. The impairment for appellant involves the unsightliness of a five-foot by seven-foot mechanical structure that is clearly a part of a municipal sewer improvement. It is not disputed that there are means available to minimize the unsightliness of the structure with landscaping improvements. As a matter of law, this does not resemble the extraordinary circumstances of Adams ("injurious consequences" of the proximity of the rail line[1]) or Castor (a block-long skyway running the length of the building). See Haeussler, 314 N.W.2d at 9-11 (announcing like cause for rejecting a takings claim under the principle of law that compensation is due only for a "substantial" invasion of a property right that results in a "definite and measurable" diminution of market value; citing Alevizos v. Metropolitan Airports Commission, 298 Minn. 471, 487, 216 N.W.2d 651, 662 (1974)).

Appellant contends that the takings test, including the consideration of reasonableness, is a fact question and not one to be determined by law. To the contrary, "[w]hether a taking has occurred is a question of law." Fitger Brewing Co. v. State, 416 N.W.2d 200, 205 (Minn. App. 1987), review denied (Minn. Feb. 23, 1988). The trial court incorrectly identified the unreasonable impairment element as an "unfortunate" or "inadvertent" point in Minnesota takings law. We conclude that the concept of reasonable impairment is a settled aspect of Minnesota takings law, but we affirm the trial court because the instant case does not present circumstances of unreasonable impairment of the implied easement of view.


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

[ ]1 [T]he engines and trains passing day and night, and throwing steam, smoke, dust, and cinders upon the plaintiff's premises, and into his house; polluting the air with offensive smells, and interfering with the free circulation of light and pure air into and upon his premises, and jarring the ground so as to cause the house and furniture to vibrate; causing physical discomforts and annoyances to plaintiff and his family, and whereby the rental value of his premises is diminished.

Adams, 39 Minn. at 287-88, 39 N.W. at 630