Opinion
A18-1280
04-22-2019
State of Minnesota, by its Commissioner of Transportation, petitioner, Respondent, v. Robert Carlson, et al., Respondents Below, Rosemary R. Elbert, et al., Appellants.
Keith Ellison, Attorney General, Mathew Ferche, Assistant Attorney General, St. Paul, Minnesota (for respondent) Harold A. Frederick, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for appellants)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Affirmed
Ross, Judge Lake County District Court
File No. 38-CV-13-147 Keith Ellison, Attorney General, Mathew Ferche, Assistant Attorney General, St. Paul, Minnesota (for respondent) Harold A. Frederick, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for appellants) Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Jesson, Judge.
UNPUBLISHED OPINION
ROSS, Judge
The state successfully petitioned the district court to grant the department of transportation temporary and permanent easements over private property for improvements along Highway 61. The district court's appointed commissioners determined that the taking caused the property owners $390,904.29 in damages, mostly on the notion that the temporary easements authorized the state to engage in construction along the highway, thereby hypothetically (even if not actually) preventing access to the property. In the property owners' cross appeal from that determination, the district court entered partial summary judgment rejecting their temporary-loss-of-access theory. It also rejected their claim to construction-interference damages. Because the property owners cannot, at the compensation stage of the eminent-domain proceeding, expand the scope of the state's taking to include the alleged taking of their right of access, and because they identify no construction-interference damages, we affirm.
FACTS
The Elberts (Rosemary R. Elbert, Catherine Elbert Woznicki, Thomas Elbert Jr., Mary C. Robbins, Donald Woznicki, Kathleen Elbert, and Marc Robbins) own land in Lake County on the north shore of Lake Superior seven miles northeast of Silver Bay. The parcel is bisected by Highway 61, from which a single gravel driveway reaches three cabins on the parcel.
In 2013 the Minnesota Commissioner of Transportation successfully petitioned the district court through eminent domain to grant the department of transportation temporary and permanent easements on the Elberts' parcel to facilitate a four-year highway-improvement project. The permanent easement includes 0.71 acres, and the temporary, construction-period easement included 3.29 acres of the Elberts' 115-acre parcel. The temporary easement lined the highway most of the length of the parcel and allowed the state to operate construction equipment and reconstruct driveway aprons. The permanent easement includes the right "to acquire all trees, shrubs, grass and herbage within the [specified] right of way . . . to be taken, and to keep and have the exclusive control of the same; and to acquire a temporary easement in those cases which are . . . particularly mentioned" in the petition.
The district court appointed commissioners under Minnesota Statutes section 117.075, subdivision 2 (2018), to determine the amount of damages the Elberts sustained because of the taking. The Elberts' expert provided the commissioners a report opining that, because the temporary easement extended most of the length of the property, no one (like a potential buyer, for example) could know whether the property could be accessed during the temporary-easement period, justifying damages for lost access. The commissioners were persuaded by this theory and determined that the total damages should be $390,904.29, with more than $300,000 of it arising from the hypothetical, construction-period loss of access.
Both parties appealed that determination to the district court. And both parties moved for partial summary judgment. The Elberts' motion again rested on their contention that the damages include complete loss of access during the construction project. They also argued that work activity along the highway effectively prevented access to the property in the form of construction interference. The state's motion rested on its contention that loss-of-access damages should be excluded as a matter of law. The district court denied the Elberts' motion and granted the state's.
The Elberts appeal.
DECISION
The Elberts challenge the district court's order denying their motion for partial summary judgment and granting the state's. We review summary judgment decisions de novo, determining whether genuine issues of material fact exist and whether the district court properly applied the law. Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). Our de novo review leads us to the same conclusion the district court reached.
The district court reasoned that, because the state did not seek and the Elberts did not prove a taking of their right of access, the Elberts cannot obtain damages for right of access under any theory. This reasoning is sound.
The district court can award eminent-domain damages based only on the rights acquired by the government as specified in the district court's grant of the condemnation petition. State v. McAndrews, 175 N.W.2d 492, 493 (Minn. 1970); State v. Wren Inc., 146 N.W.2d 547, 550 (Minn. 1966). The right of access to the highway is a distinct right held by a property owner. See Minn. Stat. § 160.08, subd. 4 (2018); Grossman Invs. v. State, 571 N.W.2d 47, 50 (Minn. App. 1997). The state's petition did not seek to obtain the right to access the Elberts' property or to take from the Elberts their right to access it, and the right was not given in the district court's order defining the easements. It is true that, "[w]hen the state alters an abutting property owner's access to a roadway, there can be a taking even if no property is actually physically appropriated." Grossman Invs., 571 N.W.2d at 50. But although the Elberts could have petitioned the court for a writ of mandamus to compel the state to initiate condemnation proceedings by alleging a taking comprised of their loss of access, see Stenger v. State, 449 N.W.2d 483, 484 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990), they did not. And they offer no evidence or even argue that they or anyone else was ever actually denied access to the property during the construction. The district court correctly limited the damages only to compensate those rights taken as expressly defined in the condemnation stage of the proceeding.
The Elberts argue for a different result under the so-called "fullest extent" rule. They offer this rule from a treatise, Nichols on Eminent Domain, which proffers that easement damages may be based on the government's fullest possible use of the easement. 5 Julius L. Sackman, Nichols on Eminent Domain § 16.01[1] (3d ed. 2018). Applying this theory, the Elberts contend that they are entitled to damages for the complete loss of access to their property for the construction period because a complete loss of access would occur if the state had acted as expansively as the easement terms allowed, including, conceivably, occupying the highway along the entire length of the property. This hypothetical complete occupation would also include the highway's intersection with their driveway, cutting off all access. We need not consider whether the Elberts have accurately construed or applied the Nichols treatise, because no statute or Minnesota caselaw incorporates it as the law.
The Elberts rely extensively on cases from other jurisdictions, including Rhode Island, Nebraska, Oregon, and Kansas. Of course none of those cases binds this court, and we add that they seem to apply a rule of law dissimilar to Minnesota's. Each of the cited cases expressly or implicitly determined that the easement obtained by the government included—either as a matter of caselaw, statute, or special circumstances—the government's right to deny access to the abutting property or the government's right to access the property. See Hudson v. City of Shawnee, 790 P.2d 933, 940 (Kan. 1990) (holding that the city condemner's easement conferred "the right to block the driveways" because the condemnation petition failed to clearly articulate that the landowner retained the right of access over the driveways); Little v. Loup River Pub. Power Dist., 36 N.W.2d 261, 264-65 (Neb. 1949) (observing a presumption "that the appropriator will exercise his rights and use and enjoy the property taken to the full extent" allowed under the easement's terms); Coos Bay Logging Co. v. Barclay, 79 P.2d 672, 676-77 (Or. 1938) (recognizing that damages should include damages for full loss of access because the alleged reservations made were indefinite); Kentucky Fried Chicken of Warren, Inc. v. Flanders, 461 A.2d 927, 928-29 (R.I. 1983) (holding that because the right to access was not guaranteed, damages could be determined based on the fullest possible use).
These cases seem to offer some support for the Elberts' theory, but the Elberts cite no Minnesota case that defines a taking in the way they urge. By contrast to the states the Elberts rely on, in Minnesota, more than fifty-five years ago it was already "well settled that when the state . . . acquires an easement for highway purposes, the owner of the fee retains a right to use the land for any lawful purpose compatible with the full enjoyment of the public easement." State v. Casey, 115 N.W.2d 749, 753 (Minn. 1962) (quotation omitted). And the owner's right to use the land abutting a highway easement includes the owner's ongoing right to access the land. Grossman Invs., 571 N.W.2d at 50. To the extent the cited caselaw from other jurisdictions reflects a different approach, we reject it as inconsistent with Minnesota law.
The Elberts offer other bases to challenge the district court's rejection of their loss-of-access claim, but each is a variation of their same contention that the fullest-extent principal converted the temporary easement, which did not purport to take the Elberts' right to access their land, into a taking of their access rights. We therefore need not discuss them.
The Elberts argue last that the district court erred by prohibiting any construction-interference damages. The state insists that construction-interference damages apply "only [to] the activities occurring within the temporary easement and permanent easement." The state construes construction-interference damages too narrowly. Construction-interference damages include those damages that stem from a temporary interference with the remainder of a property as a consequence of construction activity on the part taken. State v. Strom, 493 N.W.2d 554, 560 (Minn. 1992). But the Elberts do not allege damages like these. The damages allowed under a construction-interference theory arise from such things as serious disruption of access to commercial property, vibrations, noise, and dust, all of which actually diminish the property's value during construction. Id. at 559-60. The Elberts argue only that, because the state constructed culverts on the permanent easement, removed trees in the temporary easement, and regraded part of the easement area, "changes were made to the property taken, and construction was required to effect those changes." Asserting that "construction was required" in the easement does not identify any alleged damages actually suffered on the adjacent property because of and during construction activity.
The state argues extensively that loss of access does not foster construction-interference damages. Although that issue seems to have been a matter the district court considered, the Elberts' principal brief on appeal does not assert that their alleged loss of access forms a basis for construction-interference damages. We therefore do not address the legal theory here, except we point out again that, as a matter of fact, unlike the stipulation in Strom, the record here does not indicate that the construction ever actually interfered with anyone's access to the property.
The Elberts' expert did attempt to identify what he described as construction-interference damages. The expert estimated $5,000 in damages arising from construction activity, but his report refers only to "brush and . . . vegetation debris" being "pushed onto the land area outside the easements." He qualified that "[t]he construction vegetative debris pushed onto the land area outside the easement is minimal," and he opined that removing it would entail "bringing out a skid-steer and truck to haul the debris off the site." We offer no opinion as to whether the placement of vegetative debris onto the property outside the easement constitutes a basis for construction-interference damages, however, since the Elberts have omitted this circumstance as a reason to reverse the district court's summary-judgment decision.
Affirmed.