Debra L. Cich, et al., petitioners, Appellants,

This opinion will be unpublished and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
A18-0542

Debra L. Cich, et al., petitioners,
Appellants,

vs.

Bay Lake Township,
Respondent,

L & M Holdings Co., LLP, et al.,
Respondents.

Filed November 13, 2018
Affirmed
Reilly, Judge

Crow Wing County District Court
File No. 18-CV-15-5222

Sean O’Keefe Skrypek, Kueppers, Kronschnabel & Skrypek, P.A., St. Paul, Minnesota (for
appellants)

Scott Andrew Witty, Hanft Fride, P.A., Duluth, Minnesota (for respondent Bay Lake
Township)

Thomas C. Pearson, Daniel M. Hawley, Gammello-Pearson, PLLC, Baxter, Minnesota (for
respondent L & M Holdings Co., LLP, and Laine Bryce Family Irrevocable Trust)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Florey,
Judge.

2
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant-landowners challenge the district court’s grant of summary judgment in
favor of respondent township board’s establish ment of a cartway under Minn. Stat.
§ 164.08 (2016), pursuant to a petition for cartway filed by respondent adjacent property
owners. Because the district court did not err by granting judgment in favor of the township
board’s cartway decision, we affirm.
FACTS
The present appeal stems from the establishm ent of a cartway over land owned by
Debra and Curtis Cich, based on a petition presented to Bay Lake Township by adjacent
landowners, L&M Holdings Co., LLP (L&M), and the Laine Bryce Family Irrevocable
Trust (the Trust). In March 2015, L&M and the Trust p resented a cartway petition to the
township under Minn. Stat. § 164.08, asserting that their tracts of land lacked established
access to a public road. L&M and the Trust requested the establishment of a cartway over
appellants’ property to connect their tracts of land to a public road. The petition proposed
locating the cartway on an existing private roadway on appellants’ property . Although
L&M and the Trust had been using this roadway for years, they lacked deeded ac cess.
When the Trust attempted to sell the land, the title company performing the title search for
the buyer raised a title objection that the property had no deeded access. The Trust’s
attorney attempted to obtain a voluntary easement from appellants, who declined to grant
one.

3
Two months later, the township board received a revised cartway petition and a
request for a hearing. The revised petition identified L&M as the petitioner and owner of
two tracts of land containing at least five acres of land with no established access to a public
road. The Trust petitioned for an easement over appellants’ property, and consented to an
easement that would run over its property to the benefit of L&M’s property. The Trust
attached its consent to the petition. The board held public meetings on the petition, visited
the properties , conducted road inspections, and considered the route proposed in the
petition and the alternate route suggested by appellants. The alternate route had a steep hill
and a narrow road with swamp land on both sides. The boa rd reasoned that the proposed
route in the petition was preferable because it was “less disruptive and damaging” and was
“a well-established roadway that has been in existence and use for many years.” The
alternate route, by comparison, was steep and narrow, had swamp land on both sides, and
would require a survey to ensure that it could accommodate an access road of the
appropriate width. For these reasons, the board selected the route requested in the petition.
In August 2015, the township board issued a resolution determining elig ibility and
conditionally granting the cartway petition. The resolution identified L&M and the Trust
as petitioners and determined that the petition was “complete and proper.” The board found
that the land owned by L&M and the Trust was landlocked and lacked established access
to a public road. Because appellants’ property is registered as Torrens property, the board
found that “traditional avenues to establish legal access by adverse use are legally
unavailable.” Accordingly, the board determined that L&M and the Trust were “eligible
to receive a cartway” under Minn. Stat. § 164.08, subd. 2. The resolution found that the

4
route requested by the petition was “the best route given the terrain” and was “the less
disruptive and damaging to the neighbors and is in the public’s best interest.” The township
board found that the proposed route followed an existing roadway that had been in use for
“perhaps decades,” provided vehicular access to a number of additional properties s outh
and west of the petitioners’ property, and would benefit “at least nine” property owners.
The board noted that appellants did not object to the proposed route as being “overly
disruptive,” but instead preferred an alternate route. In December 2015, the board formally
granted the cartway petition and issued a resolution and order establishing a cartway and
awarding damages to appellants for the cartway’s establishment.
Appellants filed a notice of appeal to the district court , seeking relief from the
township board’s decision. Bay Lake sought partial summary judgment and requested a
determination that the cartway was properly established. Appellants filed a cross-motion
for summary judgment, seeking a determination that the cartway was not properly
established. The district court agreed with the township and issued an order granting partial
summary judgment in Bay Lake’s favor regarding the validity of the cartway’s
establishment. The district court determined that “no genuine iss ue of material fact exists
indicating that the [t]ownship abused its discretion in determining that L&M and the Trust
satisfied the statutory conditions for a cartway.” The district court held that the board’s
decision was “not contrary to public policy, was not arbitrary or capricious, unreasonable
or based on an erroneous theory of law.” Based upon its review, the district court
determined that the cartway was properly established and affirmed the board’s decision.

5
The district court later entered fina l judgment after granting judgment as a matter of law
on appellants’ damages award appeal. This appeal follows.
D E C I S I O N
I. Standard of Review
On appeal from a grant of summary judgment, this court reviews the record to
determine “whether there are an y genuine issues of material fact , and whether the district
court erred in applying the law.” Horton v. Twp. of Helen , 624 N.W.2d 591, 593 (Minn.
App. 2001), review denied (Minn. June 19, 2001). No genuine issue of material fact exists
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party.” DLH, Inc. v. Russ , 566 N.W.2d 60, 69 (Minn. 1997) (quotation
omitted). We “view the evidence in the light most favorable to the party against whom
summary judgment was granted” and “review de novo whether a genuine issue of material
fact exists.” J & W Asphalt, Inc. v. Belle Plaine Twp ., 883 N.W.2d 827, 831 (Minn. App.
2016) ( quotation omitted). We also review issues of statutory interpretation de novo.
Christianson v. Henke, 831 N.W.2d 532, 535 (Minn. 2013).
A town board acting on a cartway petition “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 ap plied, or (3) the town board acted arbitrarily and
capriciously, contrary to the public’ s best interest. ” Horton, 624 N.W.2d at 595.
Determination of these issues requires the interpretation of the cartway statute, which we
review de novo. Kennedy v. Pepin Twp., 784 N.W.2d 378, 381 (Minn. 2010). Minnesota
Statute Section 164.08, subdivision 2(a) provides that:

6
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. A town board shall establish a cartway upon a petition
of an owner of a tract of land that, as of January 1, 1998, was
on record as a separate parcel, contained at least two but less
than five acres, and has no access thereto except over a
navigable waterway or over the land s of others. 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.
The scope of our rev iew “must necessarily be narrow” and we will affirm the township
board’s decision even if we may have reached a different conclusion. Horton, 624 N.W.2d
at 595 (quotations omitted).
II. The Cartway Petition Is Sufficient
Appellants argue that the revised cartway petition is insufficient because it does not
properly identify the Trust as a petitioner. The record does not support this argument. The
Trust operates as both a cartway petitioner because it requires a cartway through appellants’
land, and as a cartway respondent because a portion of the cartway passes over the Trust’s
land before reaching L&M’s property. Therefore, the revised petition identified L&M as
a petitioner and noted that the Trust signed a consent, which was attached to the revised
petition. At the township board hearing, the petitioners’ attorney informed the board that
the “petitioners included the Bryce [Trust] property.” And throughout the proceedings, the
board treated the Trust as a petitioner in the action. The resolution iss ued by the board

7
indicated that the cartway was “consented to” by the Trust and “for purposes of this
resolution the [Trust] shall be referenced to as ‘petitioner.’”
Appellants rely on Shinneman v. Arago Twp., in which a landowner sought to enjoin
two townships from using and maintaining a road crossing his property. 288 N.W.2d 239,
239 (Minn. 1980). The landowner presented a petition under Minn. Stat. § 164.07 , subd.
1 (1978), which authorizes a town board to alter, vacate, or establish a new road when the
petition is “signed by eight voters of a specified class. ” Id. at 244. Although the petition
initially included the required signatures, three of the eight signatories withdrew their
names before the town board acted on the petition. Id. In light of the withdrawal of these
three names, the Minnesota Supreme Court ruled that the town lacked authority to act upon
the landowner’s petition. Id. Appellants urge the court to adopt the reasoning articulated
in Shinneman and determine that the cartway petition is invalid with respect to the Trust.
We are instead persuaded by caselaw recognizing that proceedings regarding public
roadways “have always been treated liberally by this court, and the statutes on the subject
construed broadly, and with a purpose to facilitate the action of public authorities.”
Anderson v. Sup’rs of Town, 99 N.W. 420, 421 (Minn. 1904). Further, “[t]he laying out of
a public road by town supervisors or county commissioners is not to be tested by the strict
rules pertaining to court proceedings.” Freeman v. Twp. of Pine City, 286 N.W. 299, 302
(Minn. 1939) (citing State ex rel. Simpson v. Rapp, 38 N.W. 926, 928 (Minn. 1888)). Here,
appellants were present throughout the proceedings and provided testimony and evidence
at the board hearings. Appellants, themselves, styled L&M and the Trust as petitioners and
treated them as such throughout the proceedings . We agree with the district court that

8
appellants were not prejudiced by the Trust’s status during the process and are not entitled
to relief on the ground that the petition is procedurally defective.
Appellants also argue that the Trust does not meet the minimum acreage
requirements. We disagree. Section 164.08 provides that a cartway shall be established if
the landlocked tract of land contains at least five acres of land or was on record as of
January 1, 1998, as a separate parcel containing at least two but less than five acres of land.
Minn. Stat. § 164.08, subd. 2(a). Owners of tracts of land which aggregate five acres may
join in a petition under Section 164.08. See Watson v. Bd. of Sup ’rs of Town, 239 N.W.
913, 913 (1931) (“We apprehend that owners of tracts which aggregate five acres mig ht
join in a petition.”). Here, L&M owns two contiguous tracts of land: a northern portion of
8 acres and a southern portion of 1.7 acres. The board found that the property to be served
by the cartway satisfied the acreage requirement “existing on January 1, 1998, as separate
parcels of record and cumulatively containing at least two acres.” The district court
discerned no error in the board’s factual finding and agreed that the land, as aggregated,
“cumulatively contain[ed] at least two acres” and satisfied the statutory requirements. We
agree, and conclude that the board did not err by aggregating the tracts of land and
determining that the acreage requirements of section 164.08 were satisfied.
III. The Town ship Board’s Decision Is Supported by the Ev idence and Is
Neither Arbitrary Nor Capricious
Appellants argue that the township erred in granting the petition to establish a
cartway because the statutory criteria were not met. This argument in unavailing. The
statute provides that a cartway shall be established if a landlocked tract of land on record

9
as of January 1, 1998 containing at least two but less than five acres lacks access except by
navigable waterway or over the lands of others. Minn. Stat. § 164.08, subd. 2(a). The
board found that the land owned by L&M and the Trust was landlocked and lacked
established access to a public road, and respondents were therefore “eligible to receive a
cartway.” The record supports these findings. B ecause L&M and the Trust did not have
legal access to publ ic land except over the land of another, and because the remaining
statutory requirements were satisfied, the board had a “mandatory duty” to establish a
cartway. State ex rel. Rose v. Town of Greenwood, 20 N.W.2d 345, 348 (1945).
Appellants argue that L&M and the Trust already have an easement over
neighboring property o wned by the Schweizer family. The cartway statute “was not
intended to apply where the petitioner has a perpetual easement running with the land to
his heirs and assigns.” Roemer v. Boar d of Sup ’rs, 167 N.W.2d 497, 500 (Minn. 1969).
Thus, “the statute does not contemplate establishing an alternative right -of-way where an
owner already has means of ingress and egress” to a public highway. Id. at 499. Appellants
argue that L&M has a warranty deed from the previous landowners conveying a right of
ingress and egress over the Schweizer property and onto a public road. But the Schweizer
family is not a party to this deed. Moreover, the warranty deed conveys no interest in the
Schweizer property to L&M or to the Trust and instead refers to an easement that may or
may not exist. Such permissive use does not constitute “access” under the cartway statute.
Kroyer v. Bd. of Sup’rs, 277 N.W. 234, 235 (Minn. 1938). Even assuming L&M and th e
Trust have permission to cross the Schweizer property, there is nothing in the record
establishing that they have a legally-enforceable easement. The warranty deed between

10
L&M and the previous property owner does not constitute “access” for purposes of the
cartway statute in the absence of a legal, perpetual easement. Roemer, 167 N.W.2d at 500.
Appellants also challenge the necessity of placing the cartway across their land
instead of establishing an alternative route. A town board may select an altern ative route
if it “is deemed by the town board to be less disruptive and damaging to the affected
landowners and in the public’s best interest.” Minn. Stat. § 164.08, subd. 2(a). “[T]he
selection of a route is a decision allocated by statute to the [town board] to make in its
discretion,” and it is not within a reviewing court’s power to substitute its judgment for that
of the town board in selecting a route. Kennedy, 784 N.W.2d at 384. Here, the board held
several public hearings on the cartway petitio n. The board considered the route proposed
in the petition, as well as the alternate route proposed by appellants. The board members
also inspected the properties, including both routes, and determined that appellants’
proposed route was more disruptive and damaging than the route proposed by L&M and
the Trust. The board found that appellants’ proposed route
has very steep terrain, is harder to access, is no shorter, has
never been used as a roadway shared by other adjoining
landowners, would be located closer to the lake shore on
substantially smaller parcels, would require cutting more trees,
and expensive fill that would impact natural drainage and
threaten erosion runoff contaminating waterways more than
the [route requested by L&M and the Trust].
The township board followed the requirements set forth in section 164.08 and acted
within its discretion in selecting the route proposed in the petition. After taking testimony,
visiting the land, and considering the “competing interests” of the parties, th e board
determined that the petitioners were entitled to a cartway. The board considered both the

11
cartway route requested in the petition as well as the alternative route suggested by
appellants, and determined that the requested route was preferable for several well -
articulated reasons . The board’s resolution was not against the evidence, based on an
erroneous theory of law, or arbitrary, capricious, or against the public’s best interest. Given
the broad deference afforded to a board in determining whether—and where—to establish
a cartway, we determine that appellants are not entitled to relief and we affirm the district
court’s grant of partial summary judgment in favor of the township.
Affirmed.