State of Minnesota, by its Commissioner of Transportation, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1211

State of Minnesota,
by its Commissioner of Transportation, petitioner,
Respondent,

vs.

Lee Thomas Boril, et al.,
Respondents Below,
Boundary Waters Land & Timber, Ltd.,
Appellant.

Filed March 26, 2018
Affirmed
Florey, Judge

St. Louis County District Court
File No. 69DU-CV-11-946

Lori Swanson, Attorney General, Jeffery S. Thompson, Mathew A. Ferche, Assistant
Attorneys General, St. Paul, Minnesota (for respondent)

Dan Biersdorf, Ryan R. Simatic, Biersdorf & Associates, P.A., Minneapolis, Minnesota
(for appellant)

Considered and decided by Larkin, Pres iding Judge; Reilly, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this condemnation appeal, appellant landowner challenges the district court’s
grant of partial summary judgment in favor of respondent on appellant’s claim of damage
2
to a noncontiguous parcel. Appellant argues th at the district court (1) applied the wrong
procedural standard in ruling on a summary judgment motion in a takings case; (2) applied
the wrong substantive standard applicable to noncontiguous parcels; (3) erred in finding no
unity between noncontiguous tracts u nder Minn. Stat. § 117.086 (2016); and
(4) improperly excluded evidence related to damages. We affirm.
FACTS
In March 2011, respondent State of Minnesota, by its commissioner of
transportation, filed a quick-take petition1 seeking to condemn several parcels of land for
purposes of highway construction. Among those parcels was a 5.02-acre portion of a 17-
acre property owned by Bruce Lavigne, the principal of appellant Boundary Waters Land
& Timber Ltd. The 17-acre property is hereafter referred to as the gravel parcel.2
Lavigne bought the gravel parcel in 1996 and simultaneously purchased an
approximately 640-acre property, hereafter re ferred to as the development parcel. The
development parcel is not physically connected to the gravel parcel; the two parcels are
approximately three miles apar t. According to Lavigne, the development parcel was
purchased for the purpose of constructing reside ntial building sites, and the gravel parcel
was included in the deal because Lavigne requi red road material necessary to complete a

1 “A quick-take proceeding allows a condemn ing authority to take title to and possession
of property more quickly than it would in a standard eminent domain proceeding.”
Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 868 (Minn. 2010).
2 It appears that the gravel pa rcel may actually be somewhat larger than 17 acres, but the
additional acreage constitutes an existing highway right-of-way easement.
3
road system on the development parcel. The gravel parcel contains gravel and other
aggregate.
After the land purchase in 1996, Lavigne used some of the limited on-site gravel
from the development parcel to construct an all-season road for the purpose of “testing of
soils, determining hydrology,” and “investiga ting potential building sites.” In 1997 and
1998, he cut aspen from the development parcel, but retained pine, maple, and elm patches.
In 2003, he tested soils and did some investigative digging on the development parcel. He
also had culverts installed on the development parcel. All of the timber was harvested from
the gravel parcel in 2009 in preparation of harvesting aggr egate. Further, in 2009,
according to Lavigne, “large-scale gravel exploration was undertaken on the [gravel parcel]
and some of the gravel was hauled to the [d]evelopment [p]arcel.”
In June 2011, the district court gran ted respondent’s co ndemnation petition and
awarded to respondent, effec tive July 12, 2011, title to and possession of the 5.02-acre
portion of the gravel parcel. Commissioners we re appointed to ascertain and report the
amount of damages sustained as a result of the taking. 3 Appellant took steps to have the
gravel parcel appraised. In 2012, appellant also took steps to develop a concept plan for
the development parcel, which was to be named Rice River Retreats.
In July 2014, the commissioners determined th at $12,900 was appropriate
compensation for the taking. Appellant appealed the $12,900 award. Appellant’s appraiser
determined that the total damages were $491, 245 based on an analys is of the additional

3 “Under the quick-take procedure, the cour t-appointed commissioners file their award
after the transfer of title to and possession of the property.” Id.
4
costs to appellant for obtaining gravel for the development parcel from a source other than
the gravel parcel. Although only 5.02 acres were taken from the gravel parcel, appellant’s
appraiser opined that “it is no longer economically viable to mine the remaining 12 acres”
of the gravel parcel.
Although appellant’s compensation appeal was premised on the contention that the
gravel lost from the condemnation had damaged the development parcel, a noncontiguous
property, appellant failed to give proper no tice that damages were being sought for a
noncontiguous property.4
In February 2017, respondent moved for partial summary judgment, arguing that
appellant failed to give notice of the clai m for damages to a noncontiguous property,
appellant’s claim failed as a matter of law, appellant used an improper “development cost
approach” to calculate damages, and appellant improperly valued gravel on the gravel
parcel. Appellant subsequent ly moved for permission to amend the notice of appeal to
include the noncontiguous-property claim.
On April 24, 2017, the dist rict court issued an order granting appellant permission
to amend the notice of appeal and grantin g respondent’s motion for partial summary
judgment. The court concluded, as a matter of law, that there was insufficient unity of use
between the gravel and development parcels to justify compensati on for damage to the
noncontiguous development parcel. The court also concluded that portions of appellant’s

4 Such notice is required by statute. See Minn. Stat. § 117.086, subd. 2 (stating that “[i]n
the event that an appeal is taken, a party claiming a unity in noncontiguous tracts shall give
notice thereof in the notice of appeal).
5
appraisal report were inadmissible because the appraisal utilized an improper method for
determining damages and improperly valued the gravel on the gravel parcel.
Following the order for par tial summary judgment, the parties stipulated to a
valuation of $9,325 for the condemned portion of the gravel parcel, and final judgment was
subsequently entered. This appeal followed.
D E C I S I O N
We first address the law concerning recovery of damages for a noncontiguous parcel
affected by a taking. As stated in City of Minneapolis v. Yale:
Noncontiguous parcels of la nd may be “so connected”
in use that the taking of one parcel will damage the remaining
parcels. In such a case the non contiguous parcels are to be
considered as a unit for the assessment of damages in the taking
of one of the parcels. The da mages for this partial taking are
measured by the difference between the value of the entire tract
before the taking and the value after the taking.

269 N.W.2d 754, 754 (Minn. 1978).
The standard for determining whether no ncontiguous properties are sufficiently
connected is set forth in Minn. Stat. § 117.086, subd. 1, which states:
In all eminent domain procee dings brought under this
chapter noncontiguous tracts of land may be considered as a
unit for the purpose of the assessment of the damages for a
taking from only one of such tracts, provided that the use to
which the tracts are applied is so connected, that the taking
from one in fact damages the other.

Appellant argues that the district court applied the wrong procedural and substantive
standards in determining as a matter of law that the gravel and development parcels were
not sufficiently connected. The district cour t, though acknowledging that the matter was
6
before it on a motion for partial summary judgment, chose to address respondent’s motion
as a motion “for determination of [a] taking as a matter of law, under Minn. Stat. § 117.086,
subd. 3,” which allows a district court to decide, as a matter of law, whether a “landowner
has suffered a taking of, or da mage to, noncontiguous tracts.” Viewing the issue through
that lens, the district court weighed evidence and departed from the standards applicable to
summary judgment. At the summary judgment stage, a district court may not weigh
evidence or make factual determinations. State by Hatch v. Allina Health Sys., 679 N.W.2d
400, 406 (Minn. App. 2004).
The district court’s decision to view the issue as a purely legal one is not surprising
given the seeming conflict between two subdiv isions of section 117. 086. Subdivision 1
requires that tracts be “so connected, that the taking from one in fact damages the other,”
while subdivision 3 allows a court to decide “as a matter of law” if there has been “a taking
of, or damage to,” a noncontiguous parcel. Minn. Stat. § 117.086, subds. 1, 3 (emphases
added). The language contained in these subdivisions appears consistent with caselaw.
Regarding section 117.086, subdivision 1, whether two noncontiguous properties
are “so connected” is a fact question. As stated in Victor Co. v. State by Head, “[w]hether
physically distinct tracts are adaptable to, and actually and permanen tly used as, a single
unitary tract is a question for the jury unless the evidence is conclusive.” 290 Minn. 40,
45, 186 N.W.2d 168, 172 (1971) (applying Minn. Stat. § 117.08 (1969), repealed by 1971
Minn. Laws ch. 595, § 29, at 1112, a predece ssor statute which provides that, in a taking,
the landowner is to be reimbursed “for the va lue of the land taken” and for “damages, if
any . . . to other property involved”); see Peck v. Superior Short Line Ry. Co. , 36 Minn.
7
343, 345, 31 N.W. 217, 218 (1887) (stating that determining whether two noncontiguous
properties are sufficiently connected “is probably so much [a question] of fact as to make
it impracticable to lay down an y such rule which will not be a hindrance, rather than a
help”).
Regarding section 117.086, subdivision 3, it is established in Minnesota that “the
power to determine whether there has been a taking is vested in the court and is not within
the purview of the jury.” Hous. & Redevelopment Auth. v. Lambrecht, 663 N.W.2d 541,
548 (Minn. 2003). And “[t]he question of whether land has been damaged so as to require
condemnation is a question of law which the trial court must decide before submitting the
damage question to the commissioners in the first instance.” City of Mankato v. Hilgers,
313 N.W.2d 610, 612-13 (Minn. 1981).
In this case, the parties agreed that a compensable taking from the gravel parcel
occurred. The issue then was not whether a taking occurre d, but whether damages to the
development parcel could be considered beca use of a functional connection to the gravel
parcel. The district court, though nominally claiming that the issue was a legal one under
section 117.086, subdivision 3, decided the ma tter based on a lack of “unity of use,”
effectively concluding that the parcels were not “so connected.” See Minn. Stat. § 117.086,
subd. 1. In addressing this issue, the di strict court erred by weighing evidence and
departing from a summary-judgment standard.
However, any failure of the district court to apply the correct standard is of no
consequence because we review a gr ant of summary judgment de novo, Commerce Bank
v. W. Bend Mut. Ins. Co. , 870 N.W.2d 770, 773 (Minn. 2015), and “[w]e will affirm the
8
judgment if it can be su stained on any grounds,” Myers through Myers v. Price , 463
N.W.2d 773, 775 (Minn. App. 1990), review denied (Minn. Feb. 4, 1991). See Northway
v. Whiting , 436 N.W.2d 796, 798 (M inn. App. 1989) (“[W]e may affirm a summary
judgment if there are no genuine issues of mate rial fact and if the decision is correct on
other grounds.”). We conclude that appellant failed to pro ffer sufficient evidence of a
connection between the parcels to create a genuine issue of material fact.
The relevant inquiry concerns how connect ed the parcels were at the time of the
taking. Yale, 269 N.W.2d at 757; see Anda, 789 N.W.2d at 874 (“[W]e hold that in a quick-
take proceeding, the date of valuation is the date when title and possession of the
condemned property are transf erred from the owner to the condemning authority.”).
Appellant, using a developmen t-cost approach, seeks comp ensation for increased road
construction costs for a planned residential deve lopment. But, at th e time of the taking,
despite owning the properties for approx imately 15 years, there was no planned
development, and no construc tion of a planned developm ent was underway. Such
construction was not possible because there wa s no development plan , and no plan had
been accepted by the county. Nothing in the record suggests that permits had been applied
for or obtained at the time of the taking. As late as 2015, appellant was purchasing
additional acreage for the development parcel. There is evidence th at appellant had the
intention to develop the development parcel and utilize gravel from the gravel parcel, but
there is no evidence that at the time of the taking there were actualized and “close functional
relationships” between the two parcels of the kind for which appellant seeks damages.
9
Yale, 269 N.W.2d at 755; see Minn. Stat. § 117.086, subd. 1 (requiring an analysis of the
proffered “use to which the tracts are applied”).
No genuine issue of material fact exists for trial “when the nonmoving party presents
evidence which merely creates a metaphysical doubt as to a factual issue and which is not
sufficiently probative with resp ect to an essential element of the nonmoving party’s case
to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ , 566
N.W.2d 60, 71 (Minn. 1997). Such is the case here. Given the dearth of evidence of any
functional relationships between the parcels at th e time of the taking, appellant’s mere
assertion that such relationships would even tually develop is in sufficient to create a
genuine issue of material fact.5
Affirmed.

5 Because we conclude that there is no genuine issue of fact over whether the parcels were
“so connected,” we do not address appellant’s other arguments.