Hader Properties, LLC, et al., Respondents,

This opinion is nonprecedential except as provided by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
A22-1621

Hader Properties, LLC, et al.,
Respondents,

vs.

State of Minnesota,
by its Commissioner of Transportation,
Appellant.

Filed June 12, 2023
Affirmed in part, reversed in part, and remanded
Kirk, Judge*

Goodhue County District Court
File No. 25-CV-20-1720

Stuart T. Alger, Alger Property Law, P.L.L.C., Minneapolis, Minnesota (for respondents)

Keith Ellison, Attorney General, Jeffery S. Thompson, William Young, Mathew A. Ferche,
Assistant Attorneys General, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Bratvold, Judge; and Kirk,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
KIRK, Judge
In this inverse-condemnation action, appellant State of Minnesota argues that the
district court erred by concluding that respondents Hader Properties LLC (“Hader”) and
others interested in the property at issue had abutters’ rights to access two highways when
the state closed an intersection of the highways. By notice of related appeal, respondents
assert that the district court erred by concluding that they did not have an easement to
access the highways that the state damaged by closing the intersection. We reverse as to
the abutters’-rights issue, affirm as to the easement issue, and remand for the district court
to enter judgment in the state’s favor.
FACTS
In 1963, the state took 8.96 acres in Goodhue County to realign State Trunk
Highway 52 (Highway 52), which runs north and south. The taking left a 14.89-acre tract
of private land abutting the new Highway 52 right-of- way from the west. A triangular
piece of the Highway 52 right-of-way bounds the northeast corner of this private tract near
the County State Aid Highway 24 (Highway 24) right-of-way, which runs west and
east-southeast. The state constructed an at -grade intersection of the highways to the
immediate north-northeast of the 14.89-acre tract of private land.
In 1968, the Goodhue County District Court approved a final certificate of
condemnation that included the 1963 taking. The certificate provides that the 1963 taking
included “all right of access, being the right of ingress . . . and egress” between the land
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not taken and Highway 52. This is known as an “access control” provision.1 It is
undisputed that the state compensated the owners of the 14.89-acre private tract for taking
access control.
However, the certificate of condemnation contains an exception to access control at
issue here. The exception states that “the abutting owner shall retain the right of access
extending northwesterly from the most westerly corner” of the triangular piece of the
Highway 52 right-of-way described above. The exception further states that “said owner
shall retain the right of access by way of [ Highway 52] on the southwesterly side of” the
intersection of Highways 52 and 24 (“the highways”). The access point provided by the
exception is on the north boundary of the 14.89-acre private tract.
In 1976, the owners of the 14.89-acre tract subdivided it into 11 sublots and platted
it as “Cannondale Center.” The following image shows the Cannondale Center plat
2 along
with relevant portions of the rights-of-way for the highways.

1 The state may take property rights, “including rights of access,” to establish
controlled-access highways under Minn. Stat. § 160.08, subds. 1, 3-4 (2022). See
Hendrickson v. State, 127 N.W.2d 165, 169 (Minn. 1964).
2 “A plat is ‘a delineation of one or more existing parcels of land,’ which ‘depict[s] the
location and boundaries of lots, blocks, outlots, parks, and public ways.’” In re Moratzka,
988 N.W.2d 42, 43 (Minn. 2023) (alteration in original) (quoting Minn. Stat. § 505.01,
subd. 3(f) (2022)).
4

The platters “donate[d] and dedicate[d]” the service road shown on the plat “to the public
for public use forever.” The service road, now known as 64th Avenue, is a public street
maintained by the City of Cannon Falls.
In 1977, the state recorded a monumentation plat of the area of the 1963 taking that
shows the intersection of the highways. The plat also shows where Highway 52 is access
controlled with lines segmented by dots. The access point remaining from the 1963 taking
is shown by a solid line running west-northwest to the top left corner of the following
portion of the monumentation plat.

5

In 2012, Hader purchased part of Cannondale Center. The purchase included
sublots seven through nine, part of sublots five and six, and part of the now-vacated cul -
de-sac labeled “Olson Circle” on the Cannondale Center plat. Per the deed, Hader acquired
the property “according to the plat on file and of record at the [c]ounty [r]ecorder’s [o]ffice,
Goodhue County.” When Hader purchased the property, 64th Avenue intersected with
Highway 24 around 600 feet north of the property. That intersection provided access
between 64th Avenue and the intersection of the highways.
In September 2014, the state closed the intersection of the highways. This severed
Highway 24 into separate streets on both sides of Highway 52 and eliminated Highway 24
as a route from 64th Avenue to Highway 52. However, the state constructed an interchange
approximately 3,500 feet south of the property. To access the property from Highway 52
or vice versa, one must now use the new interchange before or after using several newly

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constructed roundabouts and side streets. Access is similar from the property to the new
Highway 24 east of Highway 52. But one must continue east through the interchange
shortly before turning through a roundabout back to the north toward the new Highway 24.
In 2020, respondents petitioned for a writ of mandamus requiring the state to initiate
condemnation proceedings. Respondents asserted that by closing the intersection of the
highways, the state took or damaged their “easement and rights of access to and from [the
highways] and 64th Avenue.” The state moved for summary judgment, arguing that
respondents had no right to access the highways when the intersection of the highways
closed. Respondents moved for partial summary judgment, arguing that they had abutters
and easement rights to access the highways when the intersection closed.
The district court granted partial summary judgment to respondents on the
abutters’-rights issue, denied partial summary judgment to respondents on the easement
issue, and denied summary judgment to the state. This court dismissed the subsequent
appeal by the state and cross-appeal by respondents as taken from a nonappealable partial
judgment. On remand, the parties stipulated to waive their trial rights in this file and
request a writ of mandamus and order for the state to commence condemnation
proceedings. The district court adopted the stipulation and entered final judgment, stating
that the parties “waived further district court proceedings” and finding no just reason for
delay. Per the stipulation, the district court stayed the writ of mandamus and judgment
pending appeal. The state appealed the abutters’-right issue, and respondents cross
appealed the easement issue.
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DECISION
The state argues that the district court erred by granting partial summary judgm ent
to respondents on the abutters’-rights issue and should have granted summary judgment to
the state. By notice of related appeal, respondents assert that the district court erred by
denying them partial summary judgment on the easement issue.
On appeal of a motion for summary judgment, we must “determine whether there
are any genuine issues of material fact and whether a party is entitled to judgment as a
matter of law.” Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 630 (Minn.
2007); see also Minn. R. Civ. P. 56.01. These are de novo determinations. Montemayor
v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). Here, the parties do not
dispute any relevant facts. We therefore consider only whether the district court correctly
applied the law to the undisputed facts. See Wensmann Realty, 734 N.W.2d at 630.
Under the state and federal constitutions, the state may not take, destroy, or damage
private property for public use without just compensation. U.S. Const. amend. V; Minn.
Const. art. I, § 13; Minn. Sands, LLC v. County of Winona, 940 N.W.2d 183, 200 (Minn.
2020). If a property owner shows “that the state interfered with ownership, possession, or
enjoyment of a property right,” the property owner may obtain a writ of mandamus for
“inverse condemnation” requiring the state to initiate condemnation proceedings to
determine just compensation. Oliver v. State ex rel. Comm’r of Transp., 760 N.W.2d 912,
915 (Minn. App. 2009), rev. granted (Minn. Apr. 29, 2009), and appeal dismissed (Minn.
Nov. 16, 2009); Grossman Invs. v. State by Humphrey, 571 N.W.2d 47, 50 (Minn. App.
1997), rev. denied (Minn. Jan. 28, 1998). But an injury to property by the state is not
8
compensable unless the owner shows “damage . . . different in kind and not merely in
degree from that experienced by the general public.” Hendrickson, 127 N.W.2d at 170.
Whether interference with a property right by the state amounts to such an injury is a legal
question. Chenoweth v. City of New Brighton, 655 N.W.2d 821, 824 (Minn. App. 2003)
(stating that “[w]hether a taking has occurred is a question of law”).
I. The district court erred by concluding that respondents had abutters’ rights to
access the highways when the intersection of the highways closed.
The state argues that the district court erred by concluding that respondents had
abutters’ rights of access to the highways when the intersection of the highways closed.
“Owners of property abutting a public roadway have a right to reasonably convenient and
suitable access to the roadway.” Oliver, 760 N.W.2d at 916 (quotation omitted). This
“property right” is “in the nature of an easement.” State by Mondale v. Gannons Inc., 145
N.W.2d 321, 329 (Minn. 1966). Nonabutting owners do not have this right. Hendrickson,
127 N.W.2d at 170-71. “An abutting owner . . . is one whose property abuts the
right-of-way” of the road. State by Spannaus v. Nw. Airlines, Inc., 413 N.W.2d 514, 518
(Minn. App. 1987) (en banc), rev. denied (Minn. Nov. 24, 1987).
The state agrees that the 64th Avenue right-of-way runs over lots eight and nine and
the part of Olson Circle owned by respondents. Therefore, respondents own the underlying
land in fee subject to the public’s use and improvement. And respondents’ property abuts
the Highway 52 right-of-way. See Bolen v. Glass, 755 N.W.2d 1, 4 (Minn. 2008) (“[A]ny
abutting landowner owns to the middle of the platted street . . . subject to the right of the
public to use or remove the same for the purpose of improvement.” (quotation omitted)).
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Respondents do not dispute that by taking access control of Highway 52 where its
right-of-way abuts respondents’ property, the state prevented that abuttal from creating
abutters’ rights of access. See Hendrickson, 127 N.W.2d at 169 (“[A] controlled-access
highway is one to which an abutting property owner may have only limited access or no
access whatever. ”). Respondents also concede that their property does not abut the
Highway 24 right-of- way. Rather, respondents argue that they succeeded to abutters’
rights to access the highways under the exception to the access- control provision in the
1968 final certificate of condemnation. The district court agreed with respondents. We
conclude that this was error.
As an initial matter, we note that platting Cannondale Center severed respondents’
property from the abutters’ rights appurtenant to sublots one and two, which abut the access
point left over from the 1963 taking. Dawson v. St. Paul Fire & Marine Ins. Co., 15 Minn.
136, 142, 15 Gil. 102, 109 (1870) (“[I]f . . . premises to which [a] right[-]of[-]way attached
are divided, the right[-]of[-]way passes to each portion . . . only so far as applicable to such
portion.” (emphasis added)); cf. Finke v. State, 521 N.W.2d 371, 376 (Minn. App. 1994)
(holding that property owner had no abutter’s right appurtenant to nonabutting sublot after
subdividing owner’s larger parcel, part of which abutted street to which owner sought
access from sublot), rev. denied (Minn. Oct. 27, 1994). And in respondents’ deed to the
property, the prior owners did not convey any abutter’s right. Respondents have not
asserted that the prior owners could have conveyed such a right. Respondents merely
purchased sublots eight and nine of the Cannondale Center plat and part of Olson Circle,
all of which used to be part of the same lot as sublots one and two and only abut Highway
10
52 where it was previously access controlled. On its own, this purchase did not give
respondents abutters’ rights to access the highways. Dawson, 15 Minn. at 143-44, 15 Gil.
at 109-10 (holding that sublot owner lacked easement in street because sublot did not abut
street and owner did not acquire easement “either by express grant” in deed to sublot or by
necessity). Respondents do not dispute that conclusion.
Respondents instead rely on Currell v. State, Dep’t of Transp., 290 N.W.2d 772,
774-75 (Minn. 1980). That case sets forth “a narrow exception to the general rule . . . that
nonabutting property owners have no right to . . . convenient access to a public road.”
Finke, 521 N.W.2d at 376. Under this exception, a nonabutting owner may succeed to an
abutter’s right of access appurtenant to another’s lot if: (1) the nonabutting owner’s lot was
“once part of a greater parcel” that included the abutting lot; (2) the nonabutting owner’s
property “previously enjoyed access” through the abutting lot to the abutting road; and
(3) “the state condemned” the abutting lot to build a new road while the greater parcel was
still intact and deprived that parcel of access to the new road without paying damages. Id.
Here, respondents are effectively nonabutting owners as to Highway 52 because the
state previously acquired all right of access where respondents’ property and the Highway
52 right-of-way abut. Respondents’ property also does not abut the Highway 24
right-of-way. And at least the third condition of the Currell exception is unmet here.
Respondents concede that, as part of the 1963 taking, the state fully compensated the
owners of the 14.89-acre tract , which the owners later platted as Cannondale Center. In
compensating those owners, the state extinguished any right of compensation to which
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respondents could have succeeded, leaving a right of access only to the property abutting
the Highway 52 right-of-way where the highway is not access controlled.
Indeed, neither respondents’ property nor any part of the Cannondale Center plat
abuts the Highway 24 right-of-way. As such, respondents had no abutters’ rights to access
the highways when the intersection of the highways closed. See also Cannon Falls Oil
Co., Inc. v. Minn. Dep’t of Transp., No. A16-0672, 2016 WL 7337114, at *3-4 (Minn. App.
Dec. 19, 2016) (ruling that mandamus petitioners had no abutters’ rights to access the
highways when same intersection at issue here closed because petitioners’ property did not
abut either highways right-of-way).3 The district court erred by granting partial summary
judgment to respondents on the abutters’-rights issue.
II. The district court did not err by concluding that respondents had no easement
to access the highways from 64th Avenue that the state damaged by closing the
intersection of the highways.
By notice of related appeal, respondents argue that the state damaged their
“easement” to access the highways from 64th Avenue by closing the intersection of the
highways. Respondents claim that they had such an easement in 64th Avenue because they
bought the property with reference to the plats on which the property is located. And
according to respondents, the publicly dedicated service road in the Cannondale Center
plat (now 64th Avenue), and the state of the roads when respondents purchased their
property, show “a clear intent” by the Cannondale Center platters to provide “direct and
immediate access” to the highways from 64th Avenue. We conclude that closing the

3 Minn. R. Civ. P. 136, subd. 1(c) (stating that “[n]onprecedential opinions . . . are not
binding . . . but . . . may be . . . persuasive”).
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intersection of the highways did not cause compensable damage to any easement owned
by respondents because any damage to respondents’ property rights is not distinct in kind
from that to the public.
“An easement . . . is an entitlement to the use or enjoyment of the land . . . .” State
v. Hess, 684 N.W.2d 414, 420 (Minn. 2004). A property owner has “an easement in the
street” abutting their property as a “right of access” to the property “in any direction [that]
the street permits.” Vanderburgh v. City of Minneapolis, 108 N.W. 480, 481 (Minn. 1906).
But the owner has no “peculiar right in the other dedicated parts of the plat” on which the
property is located, “nor a right that the whole of the streets be kept unobstructed.”
Locascio v. N. Pac. Ry. Co., 240 N.W. 661, 662 (Minn. 1932) (holding that lot owners
alleging public nuisance sustained no special damage from railroad embankments that
created dead end in street abutting plaintiffs’ lots on blocks to the north and south when
lots retained access to surrounding area from streets connecting to abutting street).
Here, the state acquired all right of access from respondents’ property to Highway
52. And respondents’ property does not abut the Highway 24 right- of-way. Therefore,
respondents have no easement in either highway.
Respondents have an easement in the part of the 64th Avenue right-of-way running
over their property. But closing the intersection of the highways did not damage this
easement because respondents retain access to surrounding streets and highways from both
directions on 64th Avenue. See id. (distinguishing special damage sustained by lot owners
abutting dead-end portion of street from public damage sustained by plaintiffs and other
surrounding property owners); Cannon Falls Oil Co., 2016 WL 7337114, at *3-4 (rejecting
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claim that “right of access to the abutting roadway . . . include[d] the right” to conveniently
access Highway 52 from abutting street, and ruling it “dispositive” that “property still ha[d]
reasonably convenient and suitable access” to “both . . . lanes” of abutting street, which
connected to new Highway 24 but previously connected to Highway 52). That respondents
“to some extent are inconvenienced in the way of ingress and egress” does not change this
conclusion. Locascio, 240 N.W. at 662; see also Hendrickson, 127 N.W.2d at 170-71
(“Those who are not abutting owners have no right to damages merely because access to a
conveniently located highway may be denied, causing them to use a more circuitous
route.”).
It is significant that 64th Avenue is publicly dedicated and that respondents
effectively seek damages from the state for impairing passage to the highways from 64th
Avenue. See Locascio, 240 N.W. 662 (rejecting argument that because plaintiffs’ lots were
“in the same platted portion of the city” as embankments, creating dead ends violated
plaintiffs’ “constitutional right” to keep abutting street open).
4 These facts distinguish this
case from that relied on by respondents. In that case, the supreme court affirmed an
injunction preventing the private defendants from blocking the plaintiffs’ access to a lake

4 See also Flynn v. Beisel, 102 N.W.2d 284, 286 (Minn. 1960) (syllabus) (holding as to
public easement that “[w]hen one road commences or terminates at another road, it is
intended to furnish a passage from and to that other”); Church of Sts. Peter & Paul of Lake
George v. Lake George Township , 89 N.W.2d 708, 711 (Minn. 1958) (holding that
“primary purpose” of “connecting streets” in platted areas is in part “to connect with other
streets . . . for the benefit of the owners” in the plat and “the general public”); Underwood
v. Town Bd. of Empire, 14 N.W.2d 459, 461 (Minn. 1944) (“The right of the public is that
of passage, and the deprivation of that right causes the landowner damage of the same sort
sustained by the general public. . . . An abutting landowner has, in addition to the public
right of travel, the . . . distinct right of access to his property.”).
14
over a road expressly dedicated by plat to lot owners within the plat, a group including the
plaintiffs. Bryant v. Gustafson, 40 N.W.2d 427, 432 -34 (Minn. 1950). Unlike there, we
conclude here that any damage to respondents is not distinct in kind from that to the public.
We also agree with the district court that respondents argue for “too broad a rule ”
that would allow “property owners [to] claim easement access to public roads blocks
away.” This rule would be “inconsistent with the flexibility that cities and counties have
in developing and using platted roadways.” Moratzka, 988 N.W.2d at 51 (holding that
Marketable Title Act “does not . . . extinguish public interests . . . dedicated by plat”
(emphasis added)); cf. Village of Medford v. Wilson, 230 N.W.2d 458, 459 (Minn. 1975)
(per curiam) (“[W]hen a street is dedicated by plat, a city may choose its own time to
occupy, open, and use the street.”). It would also risk undermining the supreme court’s
“war[iness] of creating a legal environment in which the cost of regulating traffic and
improving roadways becomes prohibitive .” Dale Props., LLC v. State, 638 N.W.2d 763,
767 (Minn. 2002). Respondents do not have an easement of the scope they assert from
merely buying their property with reference to the plats on which it is located.
To the extent respondents claim an easement to access the highways because they
previously had “direct and immediate access” to the highways from their property, we
reject that argument. We rejected a similar argument under similar facts in Yarmon v.
Minn. Dep’t of Transp., No. A16-0486, 2016 WL 6077143, at *2 (Minn. App. Oct. 17,
2016), rev. denied (Minn. Dec. 27, 2016). In that case, we observed that the property
owners “never enjoyed direct and immediate access to the highway” abutting their
property. Id. at *2. We also observed that none of the authority cited by the property
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owners “recognize[d] an abutting owner’s property right to direct and immediate access to
their property” separate from their abutters’ rights of access. Id. Those observations
persuasively hold here, except that respondents’ property does not abut the Highway 24
right-of-way at all.5
In summary, respondents had no abutters’ rights to access the highways when the
intersection of the highways closed. And by closing the intersection, the state did not cause
compensable damage to respondents because any damage was not different in kind from
that to the public’s interest in the highways and 64th Avenue. We therefore affirm in part,
reverse in part, and remand. On remand, the district court shall enter judgment in the state’s
favor.
Affirmed in part, reversed in part, and remanded.

5 See also Courteaus, Inc. v. State, Dep’t of Highways, 268 N.W.2d 65, 68 (Minn. 1978)
(holding that mandamus petitioners showed no “property interest” distinct from public’s in
“retaining . . . three indirect-access openings” to nonabutting highway); Grossman Invs.,
571 N.W.2d at 51 (rejecting claim of compe nsable property right in “direct access” to
property from intersection of abutting street and nonabutting highway when closing
intersection “increased travel time off the freeway to [the] property from seconds to
minutes” but remaining access from another abutting street was “not unreasonable”);
Cannon Falls Oil Co., 2016 WL 7337114, at *4 (ruling that because property’s prior access
to highway was “convenient[] but indirect . . . .[,] the property ‘had no vested property
interest in retaining the same access’” (quoting Courteaus, Inc., 268 N.W.2d at 68)).