Richard Heggemeyer, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0805

Richard Heggemeyer,
Appellant,

vs.

Spalding Township,
Respondent,

Berg Family Property, LLC,
Respondent.

Filed February 21, 2023
Reversed and remanded
Cochran, Judge

Aitkin County District Court
File No. 01-CV-20-815

Matthew Earl Anderson, Anderson Law Group PLLC, St. Paul, Minnesota (for appellant)

Scott A. Witty, Hanft Fride, A Professional Association, Duluth, Minnesota (for
respondent Spalding Township)

William T. Helwig, Rudy, Gassert, Yetka, Pritchett, & Helwig, a Fryberger Law Firm
Practice Group, Cloquet, Minnesota (for respondent Berg Family Property, LLC)

Considered and decided by Cochran, Presiding Judge; Bjorkman, Judge; and
Reilly, Judge.
2

NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant successfully petitioned respondent-township in 2020 to realign an access
route, known as a cartway , over property owned by respondent- LLC. Appellant now
challenges the district court’s calculation of damages that appellant owes to
respondent-LLC resulting from the realignment of the cartway. Under Minnesota law,
damages in cartway proceedings generally are measured by determining the difference in
the fair market value of the burdened property before and after the establishment of the
cartway. See Silver v. Ridgeway, 733 N.W.2d 165, 169 (Minn. App. 2007); County of
Hennepin v. Laechelt, 949 N.W.2d 288, 291 (Minn. 2020). 1 Because the district court
erred by not applying the proper legal standard in calculating the damages award , we
reverse and remand.
FACTS
In 1999, respondent Spalding Township granted appellant Richard Heggemeyer ’s
petition to establish a cartway to connect his landlocked property to a public road over
property owned by Linda and Martin Berg. Heggemeyer paid $15,000 in damages to Linda
and Martin Berg at that time. See Minn. Stat. § 164.07, subd. 5 (providing the right to
damages sustained through establishment of a road by a town board); Minn. Stat. § 164.08,

1 In Silver, this court explained that establishment of a cartway is an exercise of eminent
domain. 733 N.W.2d at 169. In Laechelt, the supreme court explained the measure of
damages in an eminent-domain proceeding. 949 N.W.2d at 291; see also Minn.
Stat. § 164.07, subd. 5 (2022).
3
subd. 2(c) (2022) (providing that damages must be paid by the petitioner before a cartway
is opened). In 2011, Linda and Martin Berg deeded their property to a revocable trust. In
2015, the property was transferred from the trust to respondent Berg Family Property LLC
(the Bergs).
About ten years after the township granted Heggemeyer’s petition for a cartway ,
Heggemeyer began efforts to construct an access road on the cartway but learned that
construction along the approved route would impact a significant amount of wetlands. See
Heggemeyer v. Town Bd. of Supervisors, No. A14-1329, 2015 WL 2185083, at *1 (Minn.
App. May 11, 2015) (detailing this factual background). Heggemeyer thereafter petitioned
the township for an alteration of the cartway. Id. The township granted an alteration of
the cartway subject to certain conditions, including that the altered cartway be developed
within two years. Id. When construction was not completed within two years, the township
vacated the alteration of the cartway, leaving in place Heggemeyer’s right to the original
cartway. Id. at *1-2.
In September 2020, Heggemeyer again petitioned for an alteration of the original
cartway. The 2020 petition also requested a change in alignment to avoid impacting
wetlands. The proposed alteration would “run along” an old railroad bed and be somewhat
longer and wider than the original route. The township granted the petition and ordered
Heggemeyer to pay $30,095.88 in damages to the Bergs resulting from the alteration of the
cartway. The township calculated the Bergs’ damages by adding together the following
cost estimates: the co unty-assessed value of the amount of land included in the original
cartway ($2,948), the tax-assessed value of “additional footage” ($2,147.88) , and the
4
estimated value of the railroad bed ($32,500).2 The township also credited Heggemeyer
for half of the $15,000 damages payment he made to Linda and Martin Berg for the cartway
granted in 1999 (- $7,500). And the township awarded itself approximately $8,045 in
damages to cover the costs it had incurred in connection with the proceedings for the
establishment of the alternate cartway. See Minn. Stat. § 164.08, subd. 2(c).
Heggemeyer appealed the township’s damages award to the district court. See
Minn. Stat. § 164.07, subd. 7 (2022). Heggemeyer argued that the township’s damages
award to the Bergs “greatly exceeds the damage to the land over which the cartway was
granted” and that “the effect of the same on the surrounding land has no support in the
record.” Heggemeyer did not challenge the damages awarded to the township. In response,
the township argued that the amount of the damages awarded to the Bergs was fair and
reasonable. The Bergs were then joined as a party defendant.
In September 2021, the district court held a de novo trial on the damages awarded
to the Bergs. See id., subd. 8 (2022); Minn. Stat. § 117.175, subd. 1 (2022). At the trial,
the district court heard testimony from three witnesses called by the Bergs.
First, the district court heard testimony from the daughter of Linda and Martin Berg,
who is also the current trustee of the Berg family estate. She testified that the Berg family
uses the property now designated for the cartway for four- wheeling, hiking, hunting, rock
picking, snowmobiling, and parking vehicles. She further testified that she understood that

2 In establishing the alteration of the original cartway, the township agreed to expand the
cartway from 1,386 to 1,470 feet in length and from 33 to 66 feet in width. The township’s
$2,948 estimate covers the original 1,386- foot length and the ne w 66-foot width. The
$2,147.88 estimate covers the “additional footage” of 84 feet in length.
5
she could continue to use the land designated as the realigned cartway after Heggemeyer
builds an access road on that route but she noted that her use would be “different.” She
gave no testimony regarding the fair market value of the Bergs’ land or any testimony
regarding how much value was lost by the establishment of the realigned cartway.
Second, the district court heard testimony from the district manager for the Aitkin
County Soil and Water Conservation District , who was involved in charting the altered
cartway route. He testified that the altered cartway crosses over an old field and a railroad
bed and follows the only possible route that provides access to Heggemeyer’s property
without affecting any wetlands. He did not testify as to the value of the Bergs’ land.
Third, the district court heard testimony from a construction contractor. The
contractor provided an estimate of the “value” of the existing railroad bed that the township
used as part of its calculation of the damages award. He arrived at the “value” by estimating
how much it would cost to build a new cartway path and subtracting certain cost inputs.
He estimated the cost of a new cartway path to be $65,000 and the “value” of the existing
railroad bed to be $32,500. He determined that the existing railroad bed is worth $32,500
because Heggemeyer will save approximately that amount in avoided construction costs
when he builds a new road over the existing railroad bed to access his property via the
cartway. On cross-examination, the contractor testified that he did not know the market
value of the strip of land underlying the existing railroad bed.
In addition to the testimony of the three witnesses, the district court received 12
exhibits. The exhibits included: Heggemeyer’s 2020 petition to alter the cartway route; the
township’s resolution and order; the township’s damages award and a line-item breakdown
6
of that calculation; a map of the Bergs’ property; a written copy of the contractor’s
construction estimate; and documents showing the successive ownership of the Bergs’
property over time. No appraisal of the Bergs’ property, either before or after the
establishment of the realigned cartway, was offered into evidence.
On January 5, 2022, the district court issued findings of fact, conclusions of law, an
order for judgment, and a judgment in which it determined that the township had properly
calculated the damages it awarded to the Bergs. The district court also determined that
Heggemeyer had “failed to meet his burden to show that [the township’s] determination of
damages . . . was done so against the evidence, that [the township] proceeded on an
erroneous theory of law, or that [the township] acted arbitrarily and capriciously against
the best interests of the public.” The district court therefore awarded the Bergs $30,095.88
in damages, the same amount previously awarded by the township. The district court also
awarded approximately $8,045 in damages to the township, the same amount as previously
awarded by the township.
On February 1, 2022, Heggemeyer filed a motion for amended findings. In his
motion, Heggemeyer sought to reduce the damages awarded to the Bergs on the grounds
that the Bergs had failed to meet their burden to prove they suffered any damages as a result
of the establishment of the realigned cartway and that the district court had improperly
relied on the township’s damages determination rather than conducting a true de novo trial.
The Bergs opposed the motion.
After a hearing, the district court denied the motion for amended findings. In an
accompanying memorandum, the district court rejected Heggemeyer’s assertion that it had
7
erred by failing to conduct a de novo review of the damages owed. The district court
concluded that it had properly used the township’s award only as evidence of the land’s
value and that this evidence, “in conjunction with the record in its entirety,” was sufficient
to support the damages award.
Heggemeyer appeals the district court’s damages award.
DECISION
Heggemeyer argues that the district court erred as a matter of law by incorrectly
calculating the damages he owes to the Bergs because the calculation is not based on any
change in the fair market value of the Bergs’ property resulting from the establishment of
the cartway. The township and the Bergs disagree. The Bergs also assert that
Heggemeyer’s appeal is not properly before this court. We first address this jurisdictional
argument and then consider Heggemeyer’s challenge to the district court’s damages award.
I. Heggemeyer has the right to appeal the district court’s damages award.

The Bergs argue that Heggemeyer’s appeal should be dismissed because he is not
the real party in interest and has failed to join an indispensable party. See Minn. R. Civ.
P. 17.01 (requiring every action to be “prosecuted in the name of the real party in interest”);
Minn. R. Civ. P. 19.01 (describing “persons to be joined if feasible”). Specifically, the
Bergs argue that Heggemeyer is not the real party in interest because he holds title to the
property benefitted by the cartway as co-tr ustee of a trust rather than in his individual
capacity. Relatedly, the Bergs argue that Heggemeyer failed to join an indispensable
party—his co-trustee. These arguments are unavailing.
8
First, Heggemeyer has the right to appeal the damages award to this court because
the district court entered a final judgment against him in his personal capacity. Under
Minn. R. Civ. App. P. 103.03(a), a final judgment is appealable to this court.
Second, the Bergs did not argue before the district court that Heggemeyer is not the
real party in interest or that he had failed to join an indispensable party. Because the Bergs
raise these arguments for the first time on appeal, we need not consider them. See
Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (explaining that appellate courts
generally only consider issues that the record shows were presented to and considered by
the district court). Even so, we note that Minn. R. Civ. P. 17.01 provides that a trustee
“may sue in that person’s own name without joining the party for whose benefit the action
is brought.” Therefore, Heggemeyer could bring this action in his personal capacity and is
the real party in interest. Accordingly, w e conclude that the Bergs’ jurisdictional
arguments do not warrant dismissal or prevent this court from considering this appeal. 3
II. The district court erred in calculating the damages awarded to the Bergs.

Heggemeyer challenges the district court’s damages award, arguing that the district
court erred as a matter of law when it included the estimated value of the railroad bed in
its damages award as a separate line item and did not base the damages solely on the
diminution in the market value of the Bergs’ land resulting from the cartway.

3 The Bergs also argue that the damages award should be increased because the district
court incorrectly discounted it based on Heggemeyer’s original damages payment.
Because the Bergs also raise this argument for the first time on appeal, we do not consider
it. See Thiele, 425 N.W.2d at 582; see also Penn Anthracite Mining Co. v. Clarkson Sec.
Co., 287 N.W. 15, 17 (Minn. 1939) (explaining that a respondent must file a cross-appeal
to challenge a decision being appealed).
9
Under Minn. Stat. § 164.08, subd. 2(a) (2022), a town board must “establish, at the
request of a landowner, a cartway for access from a public road to a tract of land containing
at least five acres that otherwise has no access.” Kennedy v. Pepin Twp. of Wabasha Cnty.,
784 N.W.2d 378, 380 (Minn. 2010). “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.” Minn.
Stat. § 164.08, subd. 2(a). The petitioning landowner is responsible for the construction
and maintenance of the cartway unless the town board determines that building the cartway
is in the public interest. Id., subd. 2(d) (2022).
The petitioning landowner is also responsible for damages caused by the
establishment or alteration of the cartway. Under Minnesota law, the town board must
assess and award damages to be paid by the petitioning landowner to any burdened
landowners before the new cartway is opened. Minn. Stat. §§ 164.07, subd. 5, 164.08,
subd. 2(c). “In ascertaining the damages which will be sustained by any owner, the town
board shall determine the money value of the benefits which the establishment . . . [of the
road] will confer, and deduct the benefits, if any, from the damages, if any, and award the
difference, if any[,] as damages.” Minn. Stat. § 164.07, subd. 5. Once a town board has
awarded damages, the damages award may be appealed to the district court. Id., subd. 7.
An appeal to the district court of a town board’s damages award is tried like an
eminent-domain appeal. Id., subd. 8. In eminent-domain proceedings, damages reimburse
a landowner for the value of the land actually taken and any damages to the landowner’s
remaining property resulting from the taking. Minn. Stat. § 117.175, subd. 1; Laechelt,
10
949 N.W.2d at 291. The landowner has the burden to prove any damages. Minn.
Stat. § 117.175, subd. 1.
Damages in partial taking cases are measured by the “before and after” rule: “the
difference between the market value of the entire tract immediately before the taking and
the market value of what is left after the taking.” Laechelt, 949 N.W.2d at 291 (quotation
omitted). To determine the fair market value of the property, courts may “consider any
competent evidence that legitimately bears on the market value.” Id . This may include
“[e]vidence of any matter that would influence a prospective purchaser and seller in fixing
the price” of the property. Id. (quotation omitted).
Appellate courts review a district court’s decision to award damages for an abuse of
discretion. In re Minnwest Bank Litig. Concerning Real Prop., 873 N.W.2d 135, 14 1
(Minn. App. 2015). But “the amount and extent of damages is a question of fact” that we
review for clear error. Id. at 143 (quotation omitted). And we review a district court’s
method of determining damages de novo. Id. at 144; Snyder v. City of Minneapolis,
441 N.W.2d 781, 789 (Minn. 1989) (explaining that “whether the [district] court’s theory
of valuation of damages is speculative or erroneous is a question of law”).
The parties disagree as to the proper measure of damages in this case. Heggemeyer
argues that damages must be measured by applying the “before and after” rule: comparing
the fair market value of the Bergs’ property before the partial taking to the fair market value
of the property after the partial taking. He contends that improvements to the land, such
as the railroad bed, are relevant only insofar as they affect the market value of the
underlying property; they are not added as a separate measure of damages. And he argues
11
that the district court erred by itemizing the costs of improvements to the land (namely, the
railroad bed) in calculating the damages award because these costs do not approximate the
fair market value of the property.
Heggemeyer further asserts that the only concrete evidence of the fair market value
of the property introduced at trial is the tax-assessed value of the land actually taken for
the cartway, which totals approximately $5,095 in value. 4 Heggemeyer argues that
calculation of the damages award should have ended there because the estimates totaling
$5,095 comprise the only evidence in the record regarding the change in the market value
of the Bergs’ property arising from the establishment of the cartway. Finally, Heggemeyer
argues that the district court’s damages award was impermissibly speculative. See
Faust v. Parrott, 270 N.W.2d 117, 120 (Minn. 1978) (explaining that damages need not be
“calculable with absolute precision” but “must nevertheless be ascertainable with
reasonable exactness and may not be the product of benevolent speculation”).
The township and the Bergs agree that damages for a partial taking in a cartway
proceeding are generally calculated based on any diminution in the fair market value of the
burdened property, but they argue that the district court properly calculated damages
because the “costs of existing improvements subject to the taking may be considered when
making that calculation.” In other words, they argue that the current value of existing

4 This amount was calculated by adding the tax-assessed value of the strip of land originally
designated for the cartway ($2,948) (expanded from 33 to 66 feet wide) and the value of
“additional footage” added through the alteration ($2,147). Though Heggemeyer asserted
in his brief that the only evidence of the value of the land taken for the cartway totaled
$2,948, he revised that estimate upward at oral argument to include the value of the
“additional footage” needed.
12
improvements to the land (in the form of the railroad bed) “has a legitimate bearing on
market value and on the loss of value when the taking involves those improvements.”
With this view in mind, the township and the Bergs argue that the district court
properly awarded damages based on the testimony and documentary evidence received at
trial. They emphasize the evidence presented at trial as to the loss of the Bergs’ right to
exclusive use of their property and the fact that the altered cartway route saves Heggemeyer
“a considerable amount of money” in construction costs by avoiding nearby wetlands. And
they argue that the district court’s damages award should be affirmed because it “is not
clearly erroneous such that it is shocking or a plain injustice.” See Minnwest, 873 N.W.2d
at 143 (explaining that appellate courts will not generally reverse a damages award “unless
the failure to do so would be shocking or would result in plain injustice” (quotation
omitted)). We are not persuaded by these arguments.
We conclude that the district court erred as a matter of law in assessing the damages
owed to the Bergs. As both parties acknowledge, the correct standard for determining the
measure of damages in this case is the difference between the fair market value of the
property before and after the taking. See Laechelt, 949 N.W.2d at 291. This includes the
value of the land actually taken for the cartway and any diminution in the value of the
remaining land as a result. Minn. Stat. § 117.175, subd. 1; id. And while the district court
could have considered any competent evidence bearing on the fair market value of the
property when assessing the damages owed, the only competent evidence of fair market
value actually presented at trial was the tax-assessed value of the land taken for the cartway,
totaling $5,095.
13
The value of any existing improvements to the property may be factored into the
damages calculation only to the extent that it impacts the fair market value of the property.
See Laechelt, 949 N.W.2d at 291. In State by Youngquist v. Wheeler, for example, where
the state condemned a strip of land (6.76 acres) across a farm to create an access road for
a highway, an expert witness testified that the farm lost $12,000 in market value due to the
establishment of the access road and further estimated that the value of the land actually
taken and the cost of fencing needed to accommodate the road amounted to an additional
$2,500. 230 N.W. 91, 93 (Minn. 1930). The jury’s damages award included both estimates
and an additional sum. Id. The supreme court reversed the damages award based in part
on its determination that “[t]he necessity for additional fencing and the value of the land
taken were elements to be taken into consideration in arriving at the depreciation in value
of the farm as a whole, but not to be added thereto.” Id. (emphasis added). The supreme
court further explained that damages could be measured either by estimating “the
depreciation in the market value of the farm as a whole” or “by taking the reasonable
market value of the 6.76 acres taken, as one item, and the depreciation in the value of the
remaining acreage as the other item.” Id.
Here, while the value of the existing improvements may have some bearing on the
fair market value of the Bergs’ property, that value does not equate to or approximate an
actual measure of fair market value. See Minnwest, 873 N.W.2d at 143 (explaining that
“the best measure of market value is the actual purchase price paid by a willing buyer and
accepted by a willing seller”). The district court therefore erred by adding the estimated
value of the existing railroad bed to its calculation of damages as a separate line item. See
14
Wheeler, 230 N.W. at 93; see also Faust, 270 N.W.2d at 120 (explaining that a damages
award may not be based on “benevolent speculation”).
In sum, we conclude that the district court erred in calculating the Bergs’ damages
award because it included a separate measure of damages for existing improvements to the
land (i.e., the railroad bed) and did not base the damages award on the actual fair market
value of the land taken for the cartway and any diminution in the fair market value of the
remaining property as a result. 5 We therefore reverse and remand to the district court to
recalculate the damages by applying the proper legal standard, as set forth in this opinion,
to the existing record.
Reversed and remanded.

5 Because we agree with Heggemeyer that the district court incorrectly calculated the
damages award, we need not reach his related argument that the district court erred by
accepting the township’s damages calculation without considering the damages de novo.