This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-1754

Allen R. Schacht, et al.,

petitioners,

Respondents,

vs.

Town of Hyde Park,

Appellant.

Filed April 28, 1998

Affirmed in part, remanded in part

Amundson, Judge

Wabasha County District Court

File No. C5-97-13

Daniel R. Trost, Schreiber & Jarstad, 104 South Washington Street, Lake City, MN 55041 (for respondents)

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.

U N P U B L I S H E D O P I N I O N

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.

FACTS

Respondents Allen J. and Judith M. Schacht own a 71.6-acre parcel of land in Hyde Park Township. The Zumbro River runs through the property from west to east, and Wabasha County Highway 68 follows its course immediately to the river's north. The Schachts assert that more than five acres of their property is not accessible, and they petitioned the Hyde Park Town Board (board) to establish a public cartway to an existing road pursuant to Minn. Stat. § 164.08, subd. 2 (1996). The cartway was to run through the property of Eugene and Sharon Krismer, Rose Kelley, Troy Compton, Don Kelley, Glenn Kelley, and LaVonne Sekelik (affected property owners). After the board denied the petition, the Schachts appealed to the district court pursuant to Minn. Stat. § 164.07, subd. 12 (1996). The district court, reversing the board, established a cartway. Appellant Town of Hyde Park (Hyde Park) challenges the district court's decision.

D E C I S I O N

When a town board is acting on a petition for the establishment of a road, it acts in a legislative capacity. The district court reviews the decision of the board. Lieser v. Town of St. Martin, 255 Minn. 153, 158, 96 N.W.2d 1, 5 (1959). The town board's determination will be set aside on appeal

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.

I. Entitlement to Cartway

Hyde Park argues that the district court improperly reversed the board's decision to deny the Schachts' petition to establish a cartway. Hyde Park alleges that because the Schachts had access to a highway through their own land, they were not entitled to a cartway under the statute. The statute outlines:

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.

II. District Court's Authority

Hyde Park alternatively argues that the district court did not have the authority to establish a cartway. This argument revolves around the standard of review. The district court cannot reverse the board unless the evidence was practically conclusive against the board's decision, or if the board erroneously applied the law or acted in an arbitrary and capricious manner. See Lieser v. Town of St. Martin, 255 Minn. at 158, 96 N.W.2d at 5. Concluding that the town board acted arbitrarily and capriciously, the district court reversed the denial of Schachts' petition. We agree. The district court properly acted within its authority by reversing the town board.

III. Notice

Hyde Park argues that the affected landowners--those owning land on which the cartway would run--were not properly served with notice of the Schachts' appeal. There are inadequate findings to determine if the Schachts provided adequate notice pursuant to Minn. Stat. § 164.07, subd. 7 (1996). We remand for that determination.

Affirmed in part and remanded in part.