This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-156

 

Town of Crooked Lake,

Respondent,

 

vs.

 

Larry Pfaff, et al.,

Appellants.

 

Filed December 20, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Cass County District Court

File No. C9-03-0889

 

 

Thomas R. Borden, Virginia J. Knudson, Borden, Steinbauer, Krueger & Knudson, P.A., 302 South Sixth Street, Brainerd, MN 56401 (for respondent)

 

Larry C. Minton, Kimberly J. Stimac, Law Offices of Larry C. Minton, Ltd., 320 East Howard Street, Hibbing, MN 55746 (for appellants)

 

 

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellants challenge the district court’s determination that a certain road was deemed dedicated to the public and the court’s grant of an injunction.  They argue that the record does not support the determination and that there was no proper basis for injunctive relief.  We affirm.

FACTS

This case arises out of a dispute about whether a strip of land in the Town of Crooked Lake is a statutorily dedicated public road.  After a trial, the district court concluded that it is and enjoined appellants, who are adjacent landowners, from encroaching on it.  Appellants contend that the district court erred in its conclusion and in its order for injunctive relief.  The evidence shows the following facts.

In 1950, Cass County approved the plat of Luscher’s Bay in Crooked Lake Township.  Lot 1, Block 4, of that plat was bordered on the south by State Highway #6 and on the north by First Street.  The plat’s westerly border is at the line dividing sections 26 and 27.

Beginning in the 1950s, the public used a strip of land approximately 25 feet wide along the west edge of Lot 1, Block 4, as a dirt road to travel from State Highway #6, now known as the Frontage Road, to First Street.  Public use of the road continued until 2002.

A survey in 1986 showed the strip of land as an “existing dirt road.”  From 1988 to 1992, William Korman, chairman of the town board, owned Lot 1, Block 4.  On that land he operated a business called Owls-N-Things.  Between 1985 and 1991, the town undertook the recording of all of its roads.  Korman persuaded the town not to record the strip in question because he felt that would reduce the size of his property and would prevent him from expanding his business.  Despite the lack of recording, the public continued to use the strip as a dirt road.

West of Lot 1, Block 4, is a bar and restaurant.  Immediately west of that land is a gravel parking lot for the bar and restaurant, which also provides access to First Street from the Frontage Road.

Appellants bought Lot 1, Block 4, as improved by Owls-N-Things, in 1995.  The mound septic system that served the land encroached on First Street.  Traffic on First Street created gouges in the mound system.  Desiring to prevent further damage to the mound system, appellants asked the town to close First Street.  The town refused.  Appellants then obtained a boundary survey and received a permit from Cass County to build a fence along the westerly and northwesterly boundaries of their property.  Appellants built the fence and later a building, but they obstructed the strip of land that had been used as the dirt road.  The town then sued the appellants, seeking the removal of the fence and building.

Various witnesses, including municipal employees, town residents who used the strip as a road, and landowners in the vicinity, testified as to the road’s use and maintenance.  That testimony showed that since the 1950s the strip had been maintained from time to time by grading and snowplowing.  One municipal employee testified that he worked on the road in 1957, graded it and plowed it from 1971 through 1975, and provided the same type of maintenance in grading and plowing as he did for First Street from 1984 through 1995.

Appellants presented evidence that the public use of access to First Street was through the parking area for their business and that of the bar and restaurant.  And they argue that the town failed to prove the existence of the road, the width of the actual use of the road, and six years of continuous maintenance of the road as required by law.

D E C I S I O N

            The district court found that a strip of land approximately 25 feet wide along the west side of Lot 1, Block 4, Luscher’s Bay, running between the Frontage Road and First Street was a dedicated public road.  A road is deemed dedicated to the public to the width of actual use if it has been used and maintained by the public authority for at least six years continuously.  Minn. Stat. § 160.05, subd. 1 (2004).

            Our review of the district court’s determination is “limited to deciding whether the trial court’s findings are clearly erroneous and whether it erred in its legal conclusions.”  Citizens State Bank of Hayfield v. Leth, 450 N.W.2d 923, 925 (Minn. App. 1990).  We will not reverse unless the findings are not “reasonably supported by the evidence as a whole” or are “manifestly contrary to the weight of the evidence.”  Foster v. Bergstrom, 515 N.W.2d 581, 585 (Minn. App. 1994).  In determining whether the district court has clearly erred, we must review the record in a light most favorable to the findings.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).

Maintenance of Road

            The relevant portion of the controlling statute provides:

            When any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway by a road authority, it shall be deemed dedicated to the public to the width of the actual use and be and remain, until lawfully vacated, a public highway whether it has ever been established as a public highway or not.

 

Minn. Stat. § 160.05, subd. 1.  In applying the dedication statute, the supreme court has said that the party seeking to show the dedication of land has the burden of proving (a)  public use for six continuous years, and (b) maintenance by the township of the same quality and character as that performed on already existing roads for the same duration.  Shinneman v. Arago Twp., 288 N.W.2d 239, 242 (Minn. 1980); Foster, 515 N.W.2d at 586.  Appellants do not dispute that the public has used the purported road continuously for more than six years.

To show continued maintenance, “[i]t is not necessary that every part of a road be worked at government expense or that any particular part receive attention every year of the 6-year period.”  Leeper v. Hampton Hills, Inc., 290 Minn. 143, 146, 187 N.W.2d 765, 767-68 (1971).  In general, courts have found the level of maintenance sufficient to comply with section 160.05 to be relatively minimal, as shown by three cases on which the district court here relied.  In Town of Belle Prairie v. Kliber, 448 N.W.2d 375, 379-80 (Minn. App. 1989), the maintenance requirement of the dedication test was satisfied by a showing that annual grading, and little else, had been performed.  Also, maintenance was sufficient in Leeper, 290 Minn. at 147, 187 N.W.2d at 768, where the city laid gravel, leveled, graded, removed weeds, snowplowed, and installed culverts within an eight-year period.  Lastly, the dedication statute was satisfied in Anderson v. Birkeland, 229 Minn. 77, 80, 38 N.W.2d 215, 218 (1949), where the road in question had been graveled, resurfaced, oiled, and guard posts had been installed within a four- or five-year period.

The record contains ample testimony to support the district court’s finding that maintenance of the road was of the same quality and character as that performed on existing roads.  Charles Fairbanks, who was a member of the town board of supervisors from approximately 1984 to 1995, testified that he graded and plowed the road “about the same as First Street.”  Also, Fairbanks testified that between 1971 and 1975 he was “on call” to grade and plow the road if he received notification to do so by the town board of supervisors.  The district court’s determination is also supported by testimony from Dayton Paulson that the road was continuously maintained by the town in the same manner as other town roads already in existence.  Paulson testified that during the 18 years he was employed by the town he had picked rocks, filled potholes, and snowplowed the road to the same quality and in the same manner as other already existing roads.

Additionally, the record contains testimony of neighbors that further supports the district court’s findings.  Kirk Smith testified that from 1982 to 2002 he witnessed regular maintenance by the town on the road “as part of their ongoing maintenance efforts on First Street.”  Steven Just testified that from 1984 to 2002 he saw the same grader who worked on First Street and Birch Street also grade the road.

Because the record supports the district court’s findings that the road had been maintained in the same quality and character as other already existing roads in the town, the district court did not clearly err in finding that the road had been maintained in a manner sufficient to satisfy the maintenance prong of the test under Minn. Stat. § 160.05, subd. 1.

Width of Actual Use of the Road

            The size of a road dedicated under Minn. Stat. § 160.05, subd. 1, is limited to the width of its actual use.  Barfnecht v. Town Bd. of Hollywood Twp., Carver County, 304 Minn. 505, 508, 232 N.W.2d 420, 423 (1975).  A dedication beyond the width of actual use is an unconstitutional taking because it does not provide the landowner with notice of adverse use, which would allow him to take action to bar users from the property.  Id.  A taking of property without the due process of law is unconstitutional.  U.S. Const. Amend. XIV; Minn. Const art. 1, § 7.  Also, Minn. Const art 1, § 13, prohibits the taking of private property without just compensation.  The definition of “use” encompasses the part of the road actually used by travelers and “the shoulders and ditches that are needed and have actually been used to support and maintain the traveled portion.”  Barfnecht, 304 Minn. at 509, 232 N.W.2d at 423.

            Appellants contend that the district court failed to find that the road was limited to the width of its actual use and therefore the dedication constituted an unlawful taking of appellants’ land.

            Although ideally the district court might have determined the exact instead of the approximate width of the road, the district court’s findings are not defective.  There were two surveys in evidence, the Magnan survey from 1986 and the Landecker survey obtained by appellants shortly before trial.  Both surveys purport to identify the precise location of the road.  Furthermore, Magnan testified that the road was distinguishable and measurable and that it had a distinguishable edge.  Other witnesses testified that the road was clearly distinguishable, that it passed over a culvert and between two depressions noted on the Landecker survey, that its boundaries were clear enough so that municipal workers knew where to plow, and that the location and size of the road did not change over many years.

            Appellants argue that the road was just an extension of one big parking lot and was not discernible as a separate road.  However, the evidence is to the contrary.  There was a strip of dirt that for many years the public used as a road.  The location and width of the road could be determined visually, and the exact measurements are ascertainable through a survey.  The court estimated the width of actual use to be 25 feet.  Whatever the precise measurement might prove to be, the dedicated road is that strip of dirt noted on the surveys, the edges of which are visually discernible.  Thus, there is no question about where the road is and how wide it appears to be; only a precise measurement is absent.  That omission is not fatal because the width of actual use can be seen and measured, and it is that observable, measurable strip of land that constitutes the dedicated public road.  The court did not err as to its determination of the width of actual use of the road.

Injunctive Relief

            Appellants dispute the propriety of the injunction the district court ordered, claiming that the district court did not engage in any analysis of the harm caused or the legal remedies available.  An appellate court will not overturn a district court’s decision to issue an injunction absent a clear abuse of discretion.  Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993). 

            Generally, in a boundary dispute, the district court’s findings regarding entitlement to injunctive relief will not be set aside unless clearly erroneous.  LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn. 1979); see River Towers Ass’n v. McCarthy, 482 N.W.2d 800, 805 (Minn. App. 1992) (reviewing order granting permanent injunction according to an abuse of discretion standard) review denied (Minn. May 21, 1992).  However, “an injunction should not be issued where it would be grossly inequitable to do so.”  Wojahn v. Johnson, 297 N.W.2d 298, 307 (Minn. 1980).  In Wojahn, the court found that an injunction was not appropriate where the structure did not injure the neighbor’s property, had been innocently made, and where the cost of removal would be great compared to the inconvenience caused by the neighbor.  Id.

            Ordinarily, a party seeking an injunction must show that legal remedies are inadequate and that an injunction is necessary to prevent irreparable harm.  River Towers Ass’n, 482 N.W.2d at 805 (citation omitted).  But a “[p]ermanent injunction is a proper remedy to restrain a continuous and repeatedly threatened trespass.”  Theros v. Phillips, 256 N.W.2d 852, 859 (1977).  Where the facts establish a trespass, the court does not have discretion to deny injunctive relief.  Id.

            Appellants built their fence and building so as to obstruct a public road.  Thus, they are trespassing on a public road; they have no right to do so; and injunctive relief requiring the removal of the trespassing structures is the proper remedy.

            Appellants argue that they have invested considerable expense in constructing the fence and building that now obstruct the road.  But before they incurred that expense they knew that the town was claiming that the road was public.  They built the fence first and then learned of demands by residents that the town take action to abate the obstruction of the road.  Knowing that the town claimed the road to be public and that residents objected to the obstruction, they nevertheless erected the building that further obstructed the road.  Thus, they incurred the construction expenses at their peril.

Affirmed.