In re Amended Cartway Petition of Edward John Harri, Jr., et al.

This opinion will be unpublished and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
A17-1525

In re Amended Cartway Petition of
Edward John Harri, Jr., et al.

Filed May 7, 2018
Affirmed
Stauber, Judge*

Lake County District Court
File No. 38-CV-16-520

Charles H. Andresen, Robin C. Merritt, Holly E. LaBoone -Haller, Hanft Fride, P.A.,
Duluth, Minnesota (for appellants Edward Harri, Jr., et al.)

Douglas R. Peterson, General Counsel, Dan Herber, Associate General Counsel,
University of Minnesota, Minneapolis, Minnesota (for respondent Board of Regents of the
University of Minnesota)

Nancy A. Roe, Virginia, Minnesota (for respondent Fall Lake Township)

LRB Properties LLC, Edina, Minnesota (respondent)

Joellyn Wichts, Rogers, Minnesota (pro se respondent)

Michael Mavetz, St. Cloud, Minnesota (pro se respondent)

Donald Hill, Bossier City, Louisiana (pro se respondent)

Joanne Rauschenberg, Cumming, Georgia (pro se respondent)

Marlene Eubanks, Sautee Nacoochee, Georgia (pro se respondent)

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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Mark Majerle, Milaca, Minnesota (pro se respondent)

Nancy Lakner, Ely, Minnesota (pro se respondent)

Considered and decided by Cleary, Chief Judge; Hooten, Judge; and Stauber, Judge.
U N P U B L I S H E D O P I N I O N
STAUBER, Judge
Appellant-landowners challenge the district court’s order affirming a town board’s
denial of their petition t o establish a cartway across the University of Minnesota’s land
under Minn. Stat. § 164.08, subd. 2(a) (2016). Because the district court pro perly
determined that the town could not exercise eminent domain over the University’s land to
establish a cartway under the following circumstances, we affirm.
FACTS
Appellants Edward John Harri, Jr., Elizabeth K. Thorn, and James E. Harri own
property near the Boundary Waters that they have used as a family vacation home for the
past five decades. Because the property is not accessible over land, appellants must use a
boat to access their property. Appellants now want access to their property by road because
they are aging and have experienced challenging conditions during their commutes over
the waterway, including windy boat rides and difficulties loading their belongings on and
off the boat. Appellants f iled an amended cartway petition with the town board of Fall
Lake Township pursuant to Minn. Stat. § 164.08, subd. 2 (2016), requesting a cartway that
would cross eight separately owned properties. The United States owns one of these
parcels and respondent Board of Regents of the University of Minnesota (University) owns

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another.1 The proposed cartway would extend across the Hubachek Wilderness Research
Center (HWRC), an area gifted to the University in 2005 to “be used for the ecological and
forestry research education, with a focus on the forests of northeastern Minnesota.”
The town board held a hearing on the cartway petition. The University argued the
cartway would require road construction that would result in forest fragmentat ion and
affect land c ontours, soil hydrology, water flow, plant ecology, and invas ive plant and
animal species. The town board denied the petition, reasoning that (1) a township cannot
establish a cartway over state land when the state land has been put to public use and the
cartway’s use would be inconsistent with the state’s use , and (2) no clearly implied or
expressly conferred authority exists that allows the township to exercise eminent domain
over state land. Appellants appealed the town board’s denial to the district c ourt, arguing
the town board’s action s were arbitrary, capricious, unreasonable, against the evidence ,
and that it erroneously interpreted Minn. Stat. § 164.08, subd. 2(a).
Appellants later moved the district court for summary judgment. The district court
denied appellants’ motion for summary judgment and dismissed their appeal. Appellants
now challenge the district court’s order, arguing the district court erred in determining that
the town board of Fall Lake did not have authority t o establish a cartway over the
University’s land when no other route existed.

1 LRB Properties LLC, Fall Lake Township, Joellyn Wichts, Michael Mavetz, Donald Hill,
Joanne Ra uschenberg, Marlene Eubanks, Mark Majerle, and Nancy Lakner are also
respondents in this case . The University is the only respondent that filed a brief for this
appeal.

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D E C I S I O N
A town board acting on a petition to establish a cartway “acts in a legislative
capacity and will be reversed on appeal only when (1) the evidence is clearly against the
decision, (2) an erroneous theory of the law was applied, or (3) the town board acted
arbitrarily and capriciously, contrary to the public’s best interest.” Horton v. Twp. of Helen,
624 N.W.2d 591, 595 (Minn. App. 2001), review denied (Minn. June 19, 2001). We review
a legislative determination narrowly , and will generally affirm although we may have
reached a different conclusion. Id.
Whether the district court and the town board erroneously determined that the town
board lacked legal authority to establish a cartway over the University’s land under Minn.
Stat. § 164.08, subd. 2(a) involves statutory interpretation, which is a question of law that
we review de novo. Zurich Am. Ins. Co. v. Bjelland , 710 N.W.2d 64 , 68 (Minn. 2006).
Minn. Stat. § 164.08, subd. 2(a), provides:
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 a navigable waterway or 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. . . . The town board may select an alternative route other
than that petitioned for if the alternative is deemed by the town
board to be less disruptive and damaging to the affected
landowners and in the public’s best interest.

Here, appellants (1) petitioned the town board, (2) owned at least five acres of land, and
(3) cannot access their land except over a navigable waterway. Because appellants satisfy
the statutory requirements to establish a cartway, we must next consider whether the town

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board can establish a cartway over the University’s property, which appellants concede,
and we agree, constitutes state -owned land. See City of Minneapolis Comm’n on Civil
Rights v. Univ. of Minn., 356 N.W.2d 841, 842 (Minn. App. 1984) (“[T]he university is, in
the ordinary and functional sense, plainly an agency of the state.” ) (quotation omitted).
Therefore, we must determine whether the town board could establish a cartway over state-
owned land.
We have previously considered whether a county board coul d establish a cartway
over state-owned land under Minn. Stat. § 164.08, subd. 2(a). See Silver v. Ridgeway, 733
N.W.2d 165, 1 67-68 (Minn. App. 2007). We first explained that e stablishing a cartway
under Minn. Stat. § 164.08 (2016) “is an exercise of emin ent domain, the inherent power
of a governmental entity to take privately owned property and convert it to public use,
provided the owner is compensated.” Id. at 169. We determined that a lesser subdivision
of government may not exercise eminent domain over state -owned land absent authority
expressly conferred by the legislature or clearly implied from a statutory provision. Id. at
170. The appellant in Silver argued that implied authority existed and asserted that the
state had “not put its land to public use [and] the condemnor’s use was not substantially
inconsistent with that of the owner of public land.” Id. We rejected that argument and
determined that the state put the land to public use and that the cartway wou ld be
inconsistent with the state’s use of the land. Id. We concluded:
On this record . . . [the] authority to take state . . . land for the
cartway cannot be clearly implied, and the district court erred
by holding that the board has authority to establ ish a cartway
over the [land]. We are not insensitive to the impact of this
holding on private landowners in areas where the state owns

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large tracts of land, but given the controlling caselaw, any
change would involve matters of public policy for the
legislature or the supreme court.
Id.
Appellants contend that implied authority exists here, unlike in Silver, because this
matter is factually distinguishable . First, appellants argue that because the district court
determined that a cartway “would likely not destroy or impair the essential value of the
existing public use,” this case is different from Silver, in that the requested cartway would
have been inconsistent with the state’s use of the land. Second, appellants point to the fact
that the town board cannot establish an alternative route, whereas the town board in Silver
was able to establish an alternative route that did not require it to take state land.
Although we acknowledge that some facts here are distinguishable from those in
Silver, we do not agree that Silver should be read as narrowly as appellants suggest. Silver
did not include any language limiting its holding only to those situations in which a
landowner has no available alternative route to establish a cartway. Instead, Silver broadly
held that Minn. Stat § 164.08, subd. 2 did not provide a lesser subdivision of government
with implied authority to establish a cartway over state -owned land that was being put to
public use. Id.
Moreover, our previous discussion of a general grant of eminent domain supports
this conclusion. In Town of Fayal v. City of Eveleth, we discussed that:
[L]egislative power to condemn public land under a general
grant of eminent domain may be implied when the condemnee
has not put its land to public use. But, when the land is already
dedicated by the state or one of its governmental agencies for
a specific public use and is actually used for the specified

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purpose, the rule is that mere general authority to condemn is
insufficient to interfere with authorized public uses.

587 N.W.2d 524, 528 (Minn. App. 1999), review denied (Minn. Mar. 16, 1999) (quotations
omitted). A town board exercises “a general grant” of eminent domain when it establishes
a cartway pursuant to Min n. Stat. § 164.08, subd. 2(a). Silver, 733 N.W.2d 165 at 170.
Here, the University put its land to public use because it uses the land as a wildlife research
area. Under Town of Fayal, the town board’s general authority to condemn under Minn.
Stat. § 164.08, subd. 2 is insufficient to interfere with the University’s use of the land.
The University’s constitutional status within the state also supports the conclusion
that Minn. Stat. § 164.08, subd. 2 did not provide the town board with implied authority to
exercise eminent domain over the University property:
The University of Minnesota is a unique constitutional
corporation, es tablished by territorial act in 1853 and
perpetuated b y the state constitution in 1857. The people of
Minnesota thereby conferred the entire control and
management of the University’s affairs and property upon the
board of regents, leaving no such power to be exercised by the
legislature.

Winberg v. Univ. of Minn., 499 N.W.2d 799, 801 (Minn. 1993). The legislature recognizes
the University’s status in most of the laws that it passes by “expressly includ[ing] or
exclud[ing] the University or its board of regents as subject to or not subject to the law .”
Id. at 80 1. “[I]f the legislature had intended [a statute ] to apply to the University of
Minnesota, it most likely would have included th e University by specific reference.” Id.
at 802. Here, the legislature did not expressly refer to the University in

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Minn. Stat. § 164.08, subd. 2, which further demonstrates that the statute does not provide
the town board with implied authority to take the University’s land.
We agree with the district court’s conclusion that , under these circumstances, the
town board did not have implied authority to exercise eminent domain ov er the
University’s land. Although we are sympathetic to appellants ’ difficulties in accessing
their land, we cannot say that the district court misapplied Minn. Stat. § 164.08, subd. 2(a)
or our previous holding in Silver by affirming the town board’s de nial of appellants’
cartway petition. As we have said before, “given the controlling caselaw, any change
would involve matters of public policy for the legislature or the supreme court.” Silver,
733 N.W.2d at 170.
Affirmed.