Keith B. Hagen, et al., Appellants,

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1184

Keith B. Hagen, et al.,
Appellants,

vs.

Windemere Township,
Respondent.

Filed May 6, 2019
Affirmed
Halbrooks, Judge

Pine County District Court
File No. 58-CV-17-425

John J. Steffenhagen, Jason S. Raether, Hellmuth & Johnson, PLLC, Edina, Minnesota (for
appellants)

Scott A. Witty, Hal J. Spott, Hanft Fride, P.A., Duluth, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and
Halbrooks, Judge.
S Y L L A B U S
Under Minn. Stat. § 365.10, subd. 11 (2018), when no maintenance or construction
has been conducted on a section of a town road for 25 years or more, the town board lacks
authority to open or maintain that section of the road unless the town’s electors grant that
authority. In the absence of authority to open or maintain a road, no duty exists to open or
maintain the road.

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O P I N I O N
HALBROOKS, Judge
This appeal arises from a dispute over maintenance and repair of a 2,280-foot
section of a town road and bridge. Appellant -landowners challenge the district court’ s
rulings in favor of respondent -township on cross -motions for summary judgment on
appellants’ claims for mandamus, negligence, and nuisance. Appellant-landowners argue
that the district court erred in determining that Minn. Stat. § 160.09, subd. 3 (2018), is not
applicable. Because we conclude that respondent-township lacks authority to maintain the
road and therefore has no duty to maintain it, we affirm.
FACTS
At is sue in this appeal is the maintenance and repair of a 2,280-foot section of
Wetherille Road, located in Windemere Township. Wetherille Road was established as a
town road in 1916 and constructed in the 1920s. The parties agree that respondent
Windemere Township maintained Wetherille Road from its establishment until 1974. This
dispute concerns the southernmost 2,280 feet of the road, which includes a bridge. It has
not been maintained since 1974.
In 1988, appellant Daniel M. Ring purchased a parcel of land abutting Wetherille
Road.1 In 1991, Ring and other town residents requested that the township “re -establish,
repair, upgrade, and maintain the [2,280-foot] section of Wetherille Road.” The township

1 In 2004, Ring purchased two additional parcels abutting Wetherille Road , and appellant
Keith B. Hagen also purchased a parcel of land abutting the road. Ring and Hagen are
referred to as “the landowners” throughout the opinion.

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unanimously denied the request . Later in 1991, Ring and other residents requested that
Pine County address the decision of the township board not to repair or maintain the 2,280-
foot section of the road. Pine County treated the request as an impassable-road complaint
pursuant to Minn. Stat. § 163.16 (1990) and did not act on the complaint. In 1993, the
township performed maintenance and repair on approximately 3,000 feet of the road. But
the final 2,280 feet of road, including the bridge, was not repaired.
In 2014, the landowners and others filed a second impassable-road complaint with
Pine County alleging that the township’s refusal to repair Wetherille Road “prohibits the
reasonable use of a forty acre parcel at the south end of it” and that the township’s “refusal
to maintain the Road, or possible abandonment of the road, violates Minn. Stat. § 160.09,
subd. 3.” The township board chair responded to the county and the landowners by letter:
“After much discussion concerning the Wetherille Road, Windemere Town has decided
we cannot afford to get involved rebuilding this road. The Town has many roads that are
in need of repair at this time.”
Later that year, the Minnesota Department of Natural Resources (DNR) sent a letter
to the township stating that the bridge at issue needed to be removed or repaired and that if
“the Town has abandoned the section of the road containing the collapsed Bridge, adjacent
property owners are responsible for removal or repair. If this road section has not been
abandoned, the Town is responsible.”
At a township board me eting in September, the board determined that township
electors would decide at the annual meeting in March 2015, whether the township should
remove or repair the bridge. At the annual meeting, the township’s electors passed

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motions, citing Minn. Stat. § 365.10, subd. 11, “not to spend any money on the Wetherille
Road extension” and “not to spend any money on the Bridge that crosses the Willow
River.”
In 2017, the landowners commenced an action in district court seeking a writ of
mandamus to compel the township to maintain the entirety of Wetherille Road and to repair
the bridge, arguing that the township improperly vacated the road under Minn. Stat.
§ 160.09, subd. 3 , because it did not gain their consent. The l andowners also brought
claims for negligenc e and nuisance. The parties filed cross -motions for summary
judgment, and the district court granted the township’s motion . The district court
concluded that the township has not vacated the road because it did not follow the statutory
procedures for doing so, and therefore Minn. Stat. § 160.09, subd. 3, is not applicable. The
district court also concluded that the township did not effectively vacate the road by the
vote of its electors at the annual meeting. Although the road was never vacated, the district
court determined, under Minn. Stat. § 365.10, subd. 11, that the township lacks authority
to maintain the road in the absence of electorate approval and action by the town board.
The district court granted the township’s motion for summary judgment. 2 This appeal
follows.

2 The district court also determined that, even if the tow nship had vacated the road, the
landowners’ consent is not required under Minn. Stat. § 160.09, subd. 3, because the road
is not the only means of access to their property. Finally, the district court concluded that,
based on the common-law doctrine of abandonment, the township has abandoned the road.
We need not address these grounds because application of Minn. Stat. § 365.10, subd. 11,
resolves this appeal.

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ISSUES
I. Did the district court err by granting summary judgment on the landowners’
mandamus claim?

II. Did the district court err by granting summa ry judgment on the landowners’
negligence and nuisance claims?

ANALYSIS
The landowners argue that the district court erred by granting summary judgment
to the township. “We review the grant of summary judgment de novo to determine
‘whether there are genuine issues of material fact and whether the district court erred in its
application of the law.’” Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628
(Minn. 2017) (quoting Stringer v. Minn. Vikings Football Club, LLC , 705 N.W.2d 746,
754 (Minn. 2005)). On appeal, the parties do not assert that genuine issues of material fact
make summary judgment improper. Accordingly, our review concerns the district court’s
application of the law.
I.
The l andowners contend that the district court erred by granting the township’s
motion for summary judgment with respect to their petition for an alternative writ of
mandamus. See Minn. Stat. § 586.03 (2018) (setting forth the contents of an alternative
writ of mandamus: a statement of facts showing the defendant’s obligation to perform the
act and omission to do so, and a command that the defe ndant do the required act or show
cause). “Mandamus is an extraordinary legal remedy.” Mendota Golf, LLP v. City of
Mendota Heights , 708 N.W.2d 162, 171 (Minn. 2006) (quotation omitted). It has two
primary purposes: “to compel the performance of an official duty clearly imposed by law”

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and “to compel the exercise of discretion when that exercise is required by law.” Id.; see
Minn. Stat. § 586.01 (2018). “When a decision on a writ of mandamus is based solely on
a legal determination” this court reviews the determination de novo. Breza v. City of
Minnetrista, 725 N.W.2d 106, 110 (Minn. 2006).
Here, the landowners sought a writ of mandamus to compel the township to re -
establish, repair, and maintain the 2,280-foot section of the road and bridge. Their claim
for mandamus rests on their assertion that the township has a duty under Minn. Stat.
§ 160.09, subd. 3, to obtain their consent before vacating the road. If consent is not
obtained, the landowners contend that the road is no t vacated and the township retains a
duty to repair and maintain the road. The landowners contend that the district court erred
in concluding that Minn. Stat. § 160.09, subd. 3, is inapplicab le here. The subdivision
provides, in relevant part, prerequisites for the vacation of local roads , including, in some
circumstances, consent of certain landowners. Minn. Stat. § 160.09, subd. 3.
The procedure for vacating a road is governed by Minn. Stat. §§ 164.06-.07 (2018).
Minn. Stat. § 164.06, subd. 1, states, “A town board, when authorized by a vote of the
electors at the annual meeting, or at a special meeting called for that purpose, may establish,
alter, or vacate a town road . . . in accordance with section 164.07, subdivisions 2 to 12
. . . .” The referenced provisions set forth the procedures for a town to establish, alter, or
vacate a town road. See Minn. Stat. § 164.07, subds. 1-12. The procedures include notice
to affected landowners, a hearing, an examination of the road , and a determination of
damages. Id., subds. 2-3, 5. The statute also sets forth an appeal process for landowners
or occupants. Id., subd. 7. The language of the statute makes plain that “vacating” a town

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road is a specific and prescribed process that occurs only when a townsh ip follows the
statutory procedure.
Here, the township asserts that it did not at tempt to vacate the town road. And no
record evidence suggests that the township took steps to vacate the road in compliance with
the procedures spelled out in Minn. Stat. §§ 164.06, subd. 1, .07, subds. 2-12. The district
court determined that , although the township held a meeting and decided not to spend
money on the road, no “additional steps by the town board” were taken to vacate the road.
The meeting referenced by the district court did not comply with the statutory requirements
for vacation including the notice requirement, an examination of the road, or a damages
determination. Minn. Stat. § 164.07, subds. 2 -3, 5. Because the township did not vacate,
or attempt to v acate, the road, the district court correctly d etermined that Minn. Stat.
§ 160.09, subd. 3, does not apply and, any prerequisites, including the landowners’ consent,
are not required.
The district court also determined that, pursuant to Minn. Stat. § 365.10, subd. 11 ,
the township lacks the authority to maintain the road “in the absence of electorate approval
and action by the Town Board.” Minn. Stat. § 365.10 (2018) sets forth the powers of a
town’s electors at an annual meeting. Subdivision 1 1 states that the electors “ may let the
town board, by resolution, determine whether to open or maintain town roads . . . under the
jurisdiction of the town board upon which no maintenance or construction has been
conducted for 25 years or more.” Minn. Stat. § 365.10, subd. 11.3

3 Minn. Stat. § 365.10, subd. 11, also provides that Minn. Stat. § 163.16 (2018) (providing
for impassable-road complaints to the county) “does not apply to town roads described in

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“When interpreting a statute, we first look to see whether the statute’s language, on
its face, is clear or ambiguous. A statute is only ambiguous when the language therein is
subject to more than one reasonable interpretation.” Am. Family Ins. Grp. v. Schroedl, 616
N.W.2d 273, 277 (Minn. 2000) (q uotation and citation omitted). We conclude that the
language of Minn. Stat. § 365.10, subd. 11, is unambiguous. Based on the language of this
subdivision, the township properly brought the issue of whether to repair and maintain the
road and bridge , which had not been repaired since 1974, to its electors at the annual
meeting in 2015. The electors voted to prohibit the township from expending funds on the
road and bridge. We agree with the district court that , in the absence of elector approval,
the township lacks the authority to maintain the road.
The landowners argue that the township could not take action under Minn. Stat.
§ 365.10, subd. 11, absent a judicial determination that the road was abandoned . But this
assertion is in conflict with the statute’s plain language. The statute provides that a
township’s electors may vote to let the town board determine whether to open or maintain
a road “upon which no maintenance or construction has been conducted for 25 years or
more.” Minn. Stat. § 365.10, subd. 11. Nothing in the plain language of the statute
suggests that a judicial determination of abandonment is required before the township’s
electors may act under this subdivision. The district court correctly determined that a
judicial determination of abandonment is not required by Minn. Stat. § 365.10, subd. 11.

this subdivision,” but the subdivision “does not limit the right of town voters or land owners
to petition to establish a cartway under section 164.08.”

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Because the district court properly concluded that the township did not vac ate or
attempt to vacate the town road, Minn. Stat. § 160.09, subd. 3, does not apply. And because
the township lacks authority to maintain the road in the absence of a vote of its electors and
board action pursuant to Minn. Stat. § 365.10, subd. 11, it has no duty to maintain the road,
and mandamus cannot lie. See Minn. Stat. § 586.01 (2018); Mendota Golf, 708 N.W.2d at
171. Accordingly, the district court properly granted the township’s motion for summary
judgment on the landowners’ mandamus claim.
II.

Next, we turn to the landowners’ tort claims. The landowners assert that the district
court’s grant of summary judgment on their negligence claim was error. A claim for
negligence has four elements: duty of care , breach of that duty , injury, and the breach of
the duty being the proximate cause of the injury. Funchess v. Cecil Newman Corp. , 632
N.W.2d 666, 672 (Minn. 2001).
The district court determined , in relevant part , that no duty of care exists because
the township does not have authority to maintain the road. Minn. Stat. § 365.10, subd. 11,
as previously noted, states that a town’s electors “may let the town board, by resolution,
determine whether to open or maintain town roads . . . under the jurisdiction of the town
board upon which no maintenance . . . has been conducted for 25 years or more.” Here,
the disputed section of the road has not been maintained for more than 25 years. Based on
the statute’s plain language, the town board does not have authority to open or maintain
the road unless the town’s electors vote to allow the town board to decide whether to do
so, which did not occur here. In fact, the town’s electors voted to prohibit the town board

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from opening or maintain ing the road. Thus, th e district court concluded that the
landowners’ claim for negligence “fails as a matter of law.” We agree.
The l andowners contend that the township’s duty of care and breach of duty
occurred before the electors’ March 2015 vote and that such a vote could not “extinguish
liability for n egligence that had already occurred.” But the landowners do not cite any
legal authority to support this contention. And under Minn. Stat. § 365.10, subd. 11, the
town no longer ha s the authority to maintain the road after it has been unmaintained for
more than 25 years, absent the approval of its electors. Accordingly, we conclude that the
district court did not err by granting summary judgment to the township on the landowners’
claim for negligence.
The l andowners also assert that the district cour t erred by granting summary
judgment on their nuisance claim. An action for private nuisance is governed by Minn.
Stat. § 561.01 (2018), which states:
Anything which is injurious to health, or indecent or
offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of
life or property, is a nuisance. An action may be brought by
any person whose property is injuriously affected or whose
personal enjoyment is lessened by the nuisance, and by the
judgment the nuisance may be enjoined or abated, as well as
damages recovered.

This court has held that a plaintiff states an actionable claim for nuisance when he
or she “presents evidence that the defendant intentionally maintains a condition that is
injurious to health, or indecent or offensive to the sense s, or which obstructs the free use

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of property.” Wendinger v. Forst Farms, Inc. , 662 N.W.2d 546, 552 (Minn. App. 2003),
review denied (Minn. Aug. 5, 2003).
The township argues that a conclusion that “observance of the rights and powers of
electors under Minn. Stat. § 365.10, subd. 11,” results in a nuisance, would “undermine the
statutory scheme created by the Legislature.” We agree. Such a conclusion would violate
the canons of statutory construction. Compliance with one set of statutory provisions
should not be considered a violation of another. Such a construction would be “inconsistent
with the manifest intent of the legislature.” See Minn. Stat. § 645.08 (2018). Accordingly,
the district court did not err by granting summary judgment to the township on the
landowners’ claim for nuisance.
D E C I S I O N
The vote of the township’s electors not to maintain the section of road was not an
attempt to vacate it, and thus Minn. Stat. § 160 .09, subd. 3, is inapplicable. Because the
township’s electors did not vote, pursuant to Minn. Stat. § 365.10, subd. 11, to allow the
town board to determine whether to maintain the road, the township lacks the authority and
duty to do so, and the district court properly granted summary judgment to the township
on the landowners’ claim for mandamus. For the same reasons, we discern no error in the
district court’s grant of summary judgment to the township on the landowners’ claims for
negligence and nuisance.
Affirmed.