may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Application of
William Leysen, Hermina Leysen,
Gerald L. Cochran, Ralph R. Cochran,
Bill A. Leysen and Laurel L. Jorgenson,
to Vacate Any Public Use of Lot 11,
Edgar Lakeshore Acres.
Filed November 24, 1998
Dissenting, Peterson, Judge
Murray County District Court
File No. CX96153
Paul M. Malone, Malone & Mailander, 2605 Broadway Avenue, Slayton, MN 56172-0256 (for respondents William, Hermina, and Bill Leysen, Gerald and Ralph Cochran, and Laurel Jorgenson)
William J. Wetering, Hedeen, Hughes, Wetering & Kness, 1206 Oxford Street, Post Office Box 9, Worthington, MN 56187-0009 (for respondents David and Betty Meinerts)
Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Harten, Judge.
In 1964, property owner Harvey Edgar dedicated lot 11 of the Edgar Lakeshore Acres "for public use forever * * * for the purpose of public access to Bloody Lake." The rectangular lot has 60 feet of lakeshore; it extends back from the lake for 200 feet and the side opposite the lake is bordered by a small road. The road is small and poorly maintained; the property is unimproved and has never been used by the public.
Respondents William Leysen, Hermina Leysen, Gerald L. Cochran, Ralph Cochran, Bill A. Leysen, and Laurel L. Jorgenson are the owners of record title to the lot and applied for vacation of the dedication so they could sell it to respondents David P. and Bette A. Meinerts, owners of adjacent property. The township offered no opposition to the application, but the DNR opposed it and moved to intervene.
At the hearing on vacation of the dedication, Lee Leysen was the sole witness for the applicants. He testified that he is 55 and has been familiar with the property and area all his life. He said the public now has access to Bloody Lake at three points: from 300 yards of township road running adjacent to the lake on the east side; from a bridge to another lake; and from a large public access area served by a township road and comprising 1,000 feet of public lakeshore, a large parking lot, good access with a cement ramp and floor for boats, and toilet facilities on the north side. Leysen also testified that the road behind the subject property is poorly maintained because it is too small for the county maintenance equipment, that the property is covered with trees and debris, that there is no sign telling the public of access to the lake, and that the part of the lake adjoining the property is extremely shallow and muddy. On cross-examination, Leysen testified that he does not use the property for any purpose, that he does not think it could be made into a public boat access to the lake, that at present no one pays taxes on it, and that township officials shared his view that it would be better to sell the land and have it produce tax revenue.
Robert Chance, a DNR area supervisor for trails and waterways, testified that in his opinion the only public access to the lake was the large public access on the north because the township roads were easements granted for transportation purposes, but that he has seen people access the lake for boating and fishing from the two other areas Leysen identified as access points. Chance also testified that he thought the subject property could be used for boat access but had not done any testing of water depth or condition of the lake bottom.
Based on the testimony of Leysen and Chance, the district court found that the property is not being used and is unlikely ever to be used by the public for access to the lake and granted the application for vacation of the dedication. The DNR challenges the vacation.
The authority of the district court to vacate portions of platted property rests within its sound discretion and its conclusions will not be reversed except for clear abuse of that discretion. Application of Avant-Garde, Inc., 481 N.W.2d 379, 381 (Minn. App. 1992), review denied (Minn. April 29, 1992).
Upon the application of the owner of land included in any plat, * * * the district court may vacate or alter all, or any part, of such plat, and adjudge the title to all streets, alleys, and public grounds to be in the persons entitled thereto; but streets or alleys * * * providing access for the public to any public water, shall not be vacated * * * unless it appears that the street or alley or part thereof sought to be vacated is useless for the purpose for which it was laid out.
Minn. Stat. § 505.14 (1996). The district court found that the property "could be used for a variety of public uses" but "[t]hat its size, location and condition make it unlikely that it will ever be so used." The evidence supports this finding: road access to the property is very poor; the property has not been used or developed since its dedication in 1964; the property provides only 60 feet of lakeshore; and the lake has a large, developed public access site with 1,000 feet of lakeshore. We see no abuse of discretion in the court's findings.
To oppose the vacation, the DNR relies on Application of Baldwin, 218 Minn. 11, 15 N.W.2d 184 (1944) (reversing the denial of a motion to set aside a vacation of a dedication), and Petition of Krebs, 213 Minn. 344, 6 N.W.2d 803 (1942) (reversing the vacation of a dedication). Both cases are distinguishable on the facts. Baldwin involved a street leading to Lake Minnetonka, and Krebs involved a street leading to Lake Bemidji. In Baldwin, the street was found to be part of the small fraction of public shoreline on a lake used by "thousands upon thousands of urbanites." 218 Minn. at 17, 15 N.W.2d at 187. In Krebs, the street was likely to be needed in the future because new development in the area "will be affected materially by the extent to which ready access to the lake is afforded." 213 Minn. at 347, 6 N.W.2d at 804-05. There is no indication either that the portion of the public that uses Bloody Lake now requires additional access or that any new development is anticipated in the area.
Baldwin defines "useless" within the context of Minn. Stat. § 505.14 as
not serving or not capable of serving any valuable purpose; being of no use, having or being of no use; unserviceable, producing no good end, answering no desired purpose.
218 Minn. at 18, 15 N.W.2d at 187 (citation omitted). Testimony showed that the property here serves no valuable purpose, is of no use, is unserviceable because it is difficult to reach, and answers no desired purpose because there is ample alternative and superior access to Bloody Lake. The district court's finding that the property's size, location, and condition make it unlikely that it ever will be used for the purpose for which it was intended, i.e., public access to the lake, is amply supported by the evidence. The vacation of the dedication was not an abuse of discretion.
PETERSON, Judge (dissenting)
I respectfully dissent.
Under Application of Baldwin, 218 Minn. 11, 18, 15 N.W.2d 184, 187 (1944), "useless"
should not be given any restricted meaning. Courts should ascribe to it the well-accepted connotation: "not serving or not capable of serving any valuable purpose; being of no use; having or being of no use; unserviceable; producing no good end; answering no desired purpose."
The trial court found:
That Lot 11 could be used for a variety of public uses, including picnicking, hiking, and as an access to Bloody Lake. That its size, location and condition make it unlikely that it will ever be so used.
Lot 11 was dedicated to the public to provide access to Bloody Lake. The trial court's finding recognizes that the lot is capable of serving this purpose. Because the lot is capable of serving the valuable public purpose for which it was dedicated, it is not useless and the dedication should not be vacated. The fact that Lot 11 is unlikely to be used for a public purpose does not make the lot useless.
Also, it is irrelevant that the public now has access to Bloody Lake at other points. The court stated in Petition of Krebs, 213 Minn. 344, 348, 6 N.W.2d 803, 805 (1942),
The question for consideration here is whether First street is useless, not whether some other street is more useful, for the purpose for which it was laid out.
Similarly, the question here is whether lot 11 is useless, not whether some other public access is adequate or more useful.
I would reverse.