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This opinion will be unpublished and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 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1280

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

vs.

Robert Carlson, et al.,
Respondents Below,

Rosemary R. Elbert, et al.,
Appellants.

Filed April 22, 2019
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.

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U N P U B L I S H E D O P I N I O N
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 th e
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
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temporary and per manent 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
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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.
D E C I S I O N
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,
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“[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
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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
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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
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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.