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REAL PROPERTY - plat dedication of land as street didn't give owner improvement rights

STATE OF MINNESOTA
IN COURT OF APPEALS
A06-1422
A06-1440
Michael Bolen, et al.,
Respondents,
vs.
Todd Glass,
Appellant (A06-1422),
Michael Bolen, et al.,
Respondents,
vs.
Todd Glass,
Defendant,
City of Duluth,
Appellant (A06-1440).
Filed September 4, 2007
Affirmed as modified
Ross, Judge
St. Louis County District Court
File No. 69DU-CV-05-660
Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale
Building, 302 West Superior Street, Duluth, MN 55802 (for respondents Michael Bolen
et al.)
Bradley J. Gunn, Malkerson, Gilliland & Martin, LLP, 220 South Sixth Street, Suite
1900, Minneapolis, MN 55402 (for appellant Todd Glass)
M. Alison Lutterman, Deputy City Attorney, 410 City Hall, Duluth, MN 55802 (for
appellant City of Duluth)
2
Considered and decided by Willis, Presiding Judge; Randall, Judge; and Ross,
Judge.
S Y L L A B U S
The owner of a platted lot within a municipality does not, by virtue of a platdedication
of land for use as a public street, obtain the right unilaterally to improve and
use the dedicated land.
O P I N I O N
ROSS, Judge
These consolidated appeals involve a dispute over a landowners right to construct
a private driveway on adjacent property dedicated in 1902 to become a public street. The
City of Duluth granted Todd Glass a permit to install a driveway on the dedicated, but
never-established, street. Michael and Deborah Bolen hold the fee to part of the
property that constitutes the would-be street. They contend that Glass lacks the right to
construct the driveway and the city lacks authority to permit its construction, which they
allege constitutes a trespass on their property. Joseph Zajac also owns part of the
historically dedicated street, and he also challenges the citys authority to permit the
driveway on his portion of it. The district court agreed with the Bolens and Zajac, and it
issued a permanent injunction ordering Glass to restore the property to its prior condition.
The city and Glass filed separate appeals, which have been consolidated.
Because the district court accurately determined that Glass lacks the right and the
city lacks authority to permit Glass to construct a private driveway on a platted,
3
undeveloped street dedicated to public use, we affirm the injunction issued in favor of the
Bolens and Zajac. But because the district court abused its discretion by requiring Glass
to remove even that portion of the driveway that lies on his property, we modify the
district courts order to require Glass to restore only those portions of the corridor that are
owned by the Bolens and Zajac.
FACTS
The property owners in this dispute own lots abutting 40th Street in the City of
Duluths Park Point neighborhood. The street has never been improved by grading or
paving from its natural condition. The short corridor appears as Interlachen Street on a
certified and recorded plat described as the Oatka Beach Addition, accepted by the city
council in December 1902. The 1902 fee owner specifically dedicate[d] to the public
use the streets and avenues herein shown in accordance with statute. See Minn. Stat.
505.01 (2006) (authorizing filing of plats, which may include donation of land for any
public use); Denman v. Gans, 607 N.W.2d 788, 795 n.2 (Minn. App. 2000) (recognizing
that this statute has been renumbered and subjected to slight language changes but has
not been altered substantively for 150 years), review denied (Minn. June 27, 2000).
In 1909 the city renamed Interlachen Street as 40th Street, but the city has never
developed, used, or maintained 40th Street as a public roadway. It has, however,
installed a street sign and curb cut, as it has done with a number of other street ends or
paper streets on Park Point. On paper only, these northeast-southwest running street
ends connect Minnesota Avenue, the primary public thoroughfare on Park Point, with
Lake Avenue, another dedicated but unimproved paper street, which runs northwest4
southeast and parallel to Minnesota Avenue along the Lake Superior shoreline. The city
acknowledges that it likely [will never] develop 40th Street as a public street.
Measured by lots, 40th Street is two lots long. The centerline of 40th Street is the
eastern border of Lots 24 and 11, owned by Michael and Deborah Bolen. The centerline
is also the western border of Lot 15, which is currently owned by Joseph Zajac, and
Lot 1, which is one of three adjoining lots that comprise an L-shaped parcel currently
owned by Toss Glass.1 Glasss L-shaped parcel abuts the north and east borders of Lot
15. The owners of Lot 15 have historically used a driveway that is located within the
40th Street corridor to access Minnesota Avenue. Lot 15s driveway lies entirely on
Lot 15, except for a portion that extends lengthways over the centerline onto Lot 24 by
consent of the owners of Lot 24.
Until this dispute, owners of the L-shaped parcel that Glass now owns have
accessed Minnesota Avenue by a driveway running along the east border of, and lying
entirely within, that parcel. When Glass purchased the L-shaped parcel in 1998, he used
that driveway. In June 2003, Glass added gravel to extend the driveway across his
property toward the west, effectively connecting all three lots of his L-shaped parcel with
an L-shaped driveway. Glass testified that he wanted a secondary vehicular access so
that [he] could drive up to the parking pad using the narrow driveway, but then exit the
property using the 40th Street right-of-way.
1 The plat consists of four blocks with a total of 164 lots. The Bolens current lots are
within Block 1, and Zajacs and Glasss lots are in Block 2. For convenience, we will
refer to the lots by lot number only without regard to their separate block assignments.
5
In October 2004, Glass disabled the gravel driveway that had given the property
access to Minnesota Avenue by covering it with sod, leaving only the 2003 extension.
He testified that he covered the driveway because it was too narrow and that its removal
would allow him eventually to build an addition on his house and still meet the citys
impervious-surface requirements. In February 2005, Glass applied for a permit to build a
garage on Lot 1. He then applied for a permit to construct a driveway on 40th Street so
that he could access the new garage. The city granted the permit to allow Glass to
construct private improvements within the platted right-of-way of 40th St[reet] South to
provide access to the driveway to Lot 1. The Bolens sued Glass in June 2005,
immediately after the city granted the permit. Glass constructed the driveway on part of
each of the four lot extensions within the 40th Street corridor: Lot 1, owned by Glass;
Lots 11 and 24, owned by the Bolens; and Lot 15, owned by Zajac.
Evidence was presented at trial regarding the historic use of 40th Street. A
driveway on 40th Street has always provided access to Minnesota Avenue from the house
and garage located on Lot 15, which is currently owned by Zajac.2 For many years, 40th
2 Henry ODonnell owned Lots 1, 2, and 16, the current L-shaped parcel, from 1904 to
1981. He acquired Lot 15 in 1928 and owned it until 1951 when the lot was sold to leave
the L-shaped parcel. The L-shaped parcel continued to be owned by ODonnell or his
family until 1998 when Glass bought it. Meanwhile, Lot 15 changed hands several times
until 1981, when it was sold to the Bolens. In 1986, the Bolens purchased their parcel on
the other side of 40th Street, including Lots 11 and 24, and they sold Lot 15 to Zajac.
The use of 40th Street to access Lot 1 appears to have changed when the Bolens and then
Zajac purchased Lot 15. The Bolens testified that on rare occasions, they allowed Pamela
Haugen, ODonnells granddaughter, to use 40th Street when she owned the L-shaped
lot. In a 1990 dispute between Haugen and Zajac, the Duluth City Attorney opined in a
letter that the Bolens and Zajac each had the right to control the use of the street in front
of their lots.
6
Street also provided access to a small house known as the wee house, located on Lot 1
on the L-shaped parcel. A sidewalk led from the wee house to the driveway that is
located on Lot 15 within the 40th Street corridor.
While the parties dispute the extent of the use of 40th Street by the occupants of
the wee house and whether that use was by consent of the owner of Lot 15, it is fairly
clear that when the wee house was occupied, its residents were allowed to access
Minnesota Avenue by parking a vehicle on Lot 15s driveway on 40th Street and walking
to the wee house. The wee house was condemned by the city in 1996 and demolished
before Glass purchased the L-shaped parcel in 1998.
It is also quite clear that the various owners of the lots that incorporate 40th Street
have sought to maintain the corridor as private, discouraging public use by planting tall
grasses, trees, and shrubs within it. The terrain itself presents an obstacle to vehicular
travel, with a thirteen- to fourteen-foot elevation from the southwest, which results in a
steep embankment within the corridor. Glass disturbed that bank and some of the
vegetation when he constructed his city-permitted driveway in 2005.
Following a two-day trial, the district court found that although the plat with its
street dedication was recorded in 1902, the city has never by formal legislative
enactment or executive resolution . . . taken steps to develop the platted 40th Street
[c]orridor easement as a public street or thoroughfare such that the easement in question
remains a paper street. The court further found that the Bolens and Zajac,
as to that portion of the 40th Street [c]orridor easement which
abuts their respective lots, own the fee title to the property
abutting said lots . . . to the centerline of said easement,
7
subject only to the rights of the [city] to accept the plat
dedication for the purpose of developing a public
thoroughfare.
The district court concluded that the city exceeded its power by permitting a private
citizen to develop a public easement for private driveway purposes because the permit
essentially attempted to overlay a public easement with a private easement, thus creating
property rights and property burdens without authority to do so.
It held that Glass therefore cannot, by grant from a public authority, acquire
rights in a dedicated public easement in derogation of the publics ultimate easement
rights or which burdens the adjoining servient estates in excess of the burden imposed
by the plat dedication. The court permanently enjoined the city and Glass from
developing the 40th Street corridor except by proper legislative enactment and
subsequent development of a public thoroughfare. The court ordered Glass to remove
all improvements within the 40th Street corridor and to fully restore the property to its
prior condition within 45 days. These consolidated appeals follow.
ISSUES
I. Did the district court abuse its discretion by adding a testifying witness as a
plaintiff after trial?
II. Does the owner of a lot within a plat have the right unilaterally to construct a
private driveway on neighboring property that has been dedicated but not used as a
public street?
III. Was the City of Duluth authorized by its code to grant a person permission to
construct a private driveway on property owned by the persons neighbors within a
corridor dedicated but not used as a public street?
8
IV. Did the district court abuse its discretion by ordering a person to restore land to its
unimproved condition on the portion to which the person holds the underlying fee?
ANALYSIS
Addressing the parties challenges to different aspects of the district courts
conclusions on appeal, we must determine whether the district courts findings are clearly
erroneous or whether it erred in its application of the law. River City Mortgage Corp. v.
Baldus, 695 N.W.2d 375, 377 (Minn. App. 2005). We will uphold the district courts
findings unless they are manifestly and palpably contrary to the evidence. Flynn v.
Beisel, 257 Minn. 531, 534, 102 N.W.2d 284, 287 (1960). An appellate court, however,
is not bound by findings that are controlled or influenced by errors of law. Id. at 534,
102 N.W.2d at 288. We begin by reviewing the district courts discretion to add Zajac as
a party.
I
The district court granted the Bolens posttrial motion to add Zajac as a plaintiff,
without holding a hearing or otherwise entertaining argument from Glass. Glass asserts
that he has been prejudiced by the courts decision because (1) Zajac would have been
viewed as an interested party while testifying, rather than as a seemingly disinterested
witness; (2) Zajacs testimony as a party would have been subject to less-restrictive rules
of evidence; and (3) the scope of Glasss liability is broader than he anticipated with only
the Bolens as plaintiffs.
The Bolens request was characterized as a motion to amend the complaint to
conform to issues tried by consent of the parties under rule 15.02 of the Minnesota Rules
9
of Civil Procedure. The district court has broad discretion to allow an amendment to the
pleadings when an issue has been litigated by consent. Willmar Gas Co. v. Duininck, 239
Minn. 173, 176, 58 N.W.2d 197, 199 (1953). Allowing an amendment to add a party
may be appropriate, even by way of posttrial motion. See Jack Frost, Inc. v. Engineered
Bldg. Components Co., 304 N.W.2d 346, 350 (Minn. 1981) (affirming grant of posttrial
motion to add party).
We see no prejudice to Glass by the amendment. Glasss answer had alleged as an
affirmative defense the Bolens failure to add Zajac as an indispensable party. Glass
asserts that the Bolens could have added Zajac as a plaintiff by consent or with
permission of the court before trial under rule 15.01. His answer demonstrates that well
before trial he recognized that Zajac has a stake in the outcome and should be a party.
And it would have been equally clear to the factfinder that Zajac would either benefit or
suffer from the district courts decision whether Zajac was designated as a party or not.
Because of the nature of the dispute, the courts decision would assign rights and burdens
concerning the land within the corridor that is not owned by Glass but upon which Glass
built his driveway. This includes the Zajac property. Zajacs interest was apparent, and
his testimony was equally impeachable as a nonparty witness or as a plaintiff. Glass has
not established how evidentiary offerings, objections, or rulings may have differed
materially had there been an earlier party designation, and Glasss liability to Zajac
would apparently be the same whether Zajac is a plaintiff in this action or in one to
follow. Better practice would have been to include Zajac as a party at the outset or soon
after. But based on our review of the record, we conclude that the district court did not
10
abuse its discretion by adding Zajac as a plaintiff, even when it did so after trial. We next
consider the principal substantive question, which is whether Glass has a private right to
construct a driveway on 40th Street to connect his parcel to the public thoroughfare.
II
Glass and the city forward various theories to support their contention that Glass
has a right to 40th Street that entitles him to construct a driveway to serve his property
and allow private access to Minnesota Avenue. None persuades us.
They argue that Glass has the right to use 40th Street because the street is an open
public street and he may use it as a member of the public. But the district court found
that the street is a paper street only. And the evidence fails to compel the contrary
finding that the street is open to the public. The city has never petitioned to open the
street or maintained the corridor for public use. See, e.g., In re Maintenance of Road
Areas Shown on Plat of Suburban Estates, 311 Minn. 446, 451-52, 250 N.W.2d 827, 831
(1977) (noting that municipality may determine the time it will open a street and
advising owners to formally present request to town board to open and maintain roads);
Village of Medford v. Wilson, 304 Minn. 250, 254, 230 N.W.2d 458, 460 (1975)
(affirming right of village to open street dedicated by plat when it serves public purpose).
Rather, the city has acknowledged that the abutting property owners may exclude the
public, and it admitted that it intends never to improve the corridor for public travel.
Glass argues that the street became open by virtue of the citys acceptance of the
1902 plat that contained the dedication of the street easement. He cites no authority for
this proposition, and the citys brief does not join him in it; he merely contends that
11
because there normally are no parades and ribbon-cutting ceremonies to commemorate
the opening of a city street, the acceptance of the dedication itself was sufficient to open
it. Caselaw leads us to a different conclusion. In Lafayette Land Co. v. Village of Tonka
Bay, a landowner sued to compel the village to open a portion of a road that, like 40th
Street, had been dedicated to the municipality but not improved to accommodate
vehicular travel since its dedication. 305 Minn. 461, 461-62, 234 N.W.2d 804-05 (1975).
The supreme court affirmed the district courts decision not to open the road. Id. at 462-
64, 234 N.W.2d at 805-06. If municipal tacit acceptance of a platted dedication alone
were sufficient to open a roadway on unimproved land for public use, the supreme court
would have had no basis to affirm.
Glass and the city also contend that the 1902 dedication combined with its public
use since that time opened the street. The two cases they rely upon do not support their
position. In Anderson v. Birkeland, the supreme court considered whether a roadway that
had been graded, oiled, and resurfaced for public use by the county at public expense for
six years and that was used as a roadway by the public for at least 17 years had thereby
been offered and accepted as a public roadway by statutory or common-law dedication.
229 Minn. 77, 80-84, 38 N.W.2d 215, 218-20 (1949). On those facts of clear public use,
the roadway was deemed to be public. Id. at 85-86, 38 N.W.2d at 220-21. Not only is
Anderson factually dissimilar from this case because of the extensive use of the corridor
as a public roadway, it also addressed a different legal issue. Unlike the roadway in
Anderson, there is no question whether 40th Street was dedicated, or whether the
dedication was tacitly accepted by the city for its potential, eventual use as a roadway.
12
The questions Glass and the city introduce are whether the street has been and is opened
by the city for public use and, if so, whether Glass may construct a private driveway on it.
Anderson is factually and legally inapposite.
The second case the parties cite comes closer to the issue but not to the relevant
facts: In re Request of Lafayette Dev. Corp. to Open 18th Ave. S., 567 N.W.2d 743
(Minn. App. 1997) affd mem., 576 N.W.2d 740 (Minn. 1998). In Lafayette
Development, we held for the first time that a dedicated roadways opening can occur
without a municipality making improvements to the roadway. Id. at 745. We determined
that the city could not prohibit the use of a corridor that had been dedicated as a public
street because postdedication public use of the corridor as a roadway established that it
was a street opened to public use. Id. But in that case, the disputed dedicated corridor
was the natural extension of an existing, paved city street, had been graded and graveled
for vehicular use, and had been used for many years for vehicular travel by the
landowner, a neighboring landowner, tenants, and invitees. Id. at 744. The district court
did not find that ongoing and current vehicular use occurred on the disputed 40th Street
corridor, and the facts would not support that finding.
Glass highlights that the corridor was used as an amusement park in the early
1900s, that 40th Street appears on a city map, that there have been walking paths in the
corridor, and that the city has installed a curb cut and a street sign. Together with the
dedication, he argues, these facts demonstrate that the corridor is already an open street.
We are not convinced. That an amusement park operated on the property 100 years ago
does little to support the notion that the city opened the corridor for use as a public
13
roadway. Walking paths are also not roadways, and the evidence indicates that the
landowners and the city recognized that the owners of the corridor could, and did, restrict
public access to it. That the city installed a sign and a curb cut and included the corridor
as a street on maps certainly might suggest its intent to open the street for publicroadway
use in the future. But Glasss argument as supported by Lafayette Development
depends on whether the street is already open as a public roadway, and the city has
expressly indicated that it does not intend to exercise its authority to develop the street for
that use. The city adds that it has also installed a bituminous apron at the curb cut. This
suggests only that if the city changes course and does open the street for public use, it
likely will pave the street. At the very least, we can assume that the city will not indicate
that the corridor is open for use as a city street until it removes the trees and shrubs that
the landowners have planted to discourage public access, with the citys approval. The
idea that the street is already open to public use lacks sufficient factual support.
Although Glass has rights to use the portion of the unopened street that lies on his
own property, any right he might have to use the street as a member of the public is
subject to the rights of the individual property owners of each segment of it.
[A]ny abutting landowner owns to the middle of the platted
street or alley and . . . the soil and its appurtenances, within
the limits of such street or alley, belong to the owner in fee,
subject only to the right of the public to use or remove the
same for the purpose of improvement.
Kochevar v. City of Gilbert, 273 Minn. 274, 276, 141 N.W.2d 24, 26 (1966). Even when
public improvements are deemed necessary, a municipality must show that the
improvement serves a public purpose and must follow proper procedures before making
14
those improvements. See id. at 277, 141 N.W.2d at 27. The city engineer issued the
permit to Glass without any public notice or input, and no evidence was presented to
show that Glasss proposed driveway would serve any public purpose. There is no
dispute that he intends the driveway to serve only to access his private garage.
We also do not agree with the contention that Glass has the right to install a
driveway on 40th Street merely because he owns a lot within the plat. Under certain
circumstances, the owner of a lot within a plat may obtain rights to use dedicated areas in
the plat that do not directly abut his property. For example, in Bryant v. Gustafson, a plat
expressly dedicated the use of named roadways to the lot owners of the plat. 230 Minn.
1, 3, 40 N.W.2d 427, 430 (1950). The disputed roadway was dedicated specifically for
their use rather than for public use, and the plat was not within any municipality. Id. at
10, 40 N.W.2d at 434. The residents of the platted lots in Bryant had used parts of these
designated roadways to access the lake for a period of over 25 years, and when a new
owner sought to exclude these other resident-users as trespassers, the excluded residents
successfully sued to regain their access. Id. at 5, 12, 40 N.W.2d at 431, 434. Here,
however, the plat dedicated 40th Street for public use and, unlike in Bryant, there is little
evidence in the record that the identified beneficiaries (here, the public) have ever used
the corridor as a street.
It is true that the supreme court has acknowledged the general rule that one
purchasing a lot within a plat may rely upon the dedication of streets and alleys shown
therein, and possesses the right to use the same. Etzler v. Mondale, 266 Minn. 353, 364,
123 N.W.2d 603, 611 (1963). But this rule applied only to entitle the owners in a plat to
15
notice of vacation proceedings and, potentially, damages related to the vacation, not to
any private right to improve unilaterally and use dedicated property. Id. at 364-65, 123
N.W.2d at 611-12 (affirming district courts grant of petition to vacate part of plat
dedicated as park and holding that other lot owners in platted area should receive notice
of vacation proceedings).
Glass faces two significant obstacles to his assertion of the right to employ selfhelp
in creating his driveway. First, Minnesota courts have not established the more
extreme rule urged by Glass and expressed by several other jurisdictions that the
purchasers of property within a plat that dedicates land as streets for public use are
entitled to do whatever is necessary to put [those streets] in a condition for use. 26
C.J.S. Dedication 78 (2001); see also Village of Baxter Estates v. G.N.M. Constr. Co.,
267 N.Y.S.2d 663, 666 (N.Y. Sup. Ct. 1966) (As the purchaser and owner of Lots . . . on
the filed map, the corporate defendant has an absolute right to open up and improve the
unopened portions of [certain paper streets] for persons going to and from its lots; nor
would this right be impaired even if [the defendant] did not have title to the roadbeds.).
Here, municipalities are authorized to choose a careful approach to the improvement and
opening of dedicated land for public use. As discussed above and implied by various
holdings, in Minnesota, municipalities, not neighboring landowners, decide whether a
property dedicated for a particular use will be improved to accommodate that use. See
Pierro v. City of Minneapolis, 139 Minn. 394, 395, 166 N.W. 766, 766 (1918) (It is
settled law in this state that when a street is dedicated by plat, the city may choose its
own time to occupy, open and use the street.); see also Etzler, 266 Minn. at 359-60, 365,
16
123 N.W.2d at 608, 611-12 (noting that the district court acted within its discretion to
credit municipalitys resolution to vacate park dedication); Lafayette Land Co., 305
Minn. at 463-64, 234 N.W.2d at 806 (affirming municipalitys authority to refuse to open
a dedicated street over demand of interested would-be user); Maintenance of Road Areas,
311 Minn. at 451-52, 250 N.W.2d at 831 (asserting citys authority to decide when a
street would be opened for use).
If Glasss legal theory were correct, the Bolens or Zajac, or any of the other
owners of the 164 lots established by the platted, 1902 Oatka Beach Addition, could by
right arrive tomorrow with a bulldozer and a load of gravel and level 40th Street from
Minnesota Avenue to the lake. We see no support for this theory in Minnesota law,
which contemplates a deliberate, municipality-controlled approach to improvements to
and use or vacation of dedicated land. We hold that the owner of a platted lot within a
municipality does not, by virtue of a public street dedication of land elsewhere within the
plat, have the right unilaterally to improve the dedicated land for use as a street.
Second, even if Minnesota law authorized any private landowner in a plat to
improve property elsewhere within the plat to fulfill the purpose of a plat dedication,
Glass has not taken steps, and the city has not directed him, to open 40th Street for the
purpose for which it was dedicated. Although the dedication is for a publicly usable
street, Glass has created merely a private driveway on Zajacs and the Bolens properties
to access his private garage by connecting to Zajacs private driveway. By his
improvement the public enjoys no more access than before. Although Minnesota caselaw
demonstrates that Glass has a right to receive notice attendant to the disposition of platted
17
but unopened streets, and he may, as an interested party, be entitled to measured damages
arising from the vacation of those streets, it does not establish that he has the right to
construct a private driveway for private use on portions of the 40th Street corridor that
rest on property to which other landowners hold title.
Glass next argues that he has a constitutional right to use 40th Street to access
Minnesota Avenue from his property. Elsewhere, he argues that he has a constitutionally
protected right of access from his property. The distinction between a constitutional right
to access property and a constitutionally protected right to access property is not simply a
difference in semantics. If Glass has an actual constitutional right to access his property,
the governmentin this case the citymay have a constitutional obligation to provide
sufficient public street access to the Glass property, exactly as he argues. If, instead, his
right to access his property arises from some other source and concerns the relationship
between neighboring landowners, it is a right that the state need not itself satisfy. Rather,
it is a private right that the state or local government may not infringe without due
process and just compensation. We therefore first clarify the nature of the right.
A landowners right to access his property arises from common law. Property
interests are not created by the Constitution. Bd. of Regents v. Roth, 408 U.S. 564, 577,
92 S. Ct. 2701, 2709 (1972). Although property interests are protected by the federal
Due Process and Takings Clauses, the property interests themselves arise from
independent sources, such as state law. Id.; see also Hughes v. Washington, 389 U.S.
290, 295, 88 S.Ct. 438, 441 (1967) (Stewart, J., concurring) ([A]s a general proposition
. . . the law of real property is, under our Constitution, left to the individual States to
18
develop and administer.). It is true that, in Minnesota, landowners have the right of
access from their property to a public right-of-way. Johnson v. City of Plymouth, 263
N.W.2d 603, 605-06 (Minn. 1978). But the supreme court in Johnson did not indicate
that this right arises from the state or federal constitution. Rather, it noted that the right is
recognized under Minnesota law, and the cases it relied upon trace back to commonlaw
origins, not to constitutional precepts. See id. (citing cases). It is also true that a
governmental taking of a property right of access requires just compensation under the
state and federal constitutions, but this is all that is established by the cases cited by
Glass. See id. at 606 (Like other property rights, the right of reasonable access can be
infringed or taken by the state, giving the property owner a constitutional right to
compensation.); Hendrickson v. State, 267 Minn. 436, 445-46, 127 N.W.2d 165, 172-73
(1964) (If the jury decides that the location of the proposed interchange substantially
impairs plaintiffs right to reasonably convenient and suitable access to the main
thoroughfare, plaintiffs are entitled to damages.). The right of access is a common-law
property right that is constitutionally protected from noncompensated governmental
taking; it is not itself a constitutional right that obligates the government to take
affirmative steps to require ones neighbors to allow access over their property.
Having concluded that Glasss right of access to his property is a common-law
right, we must decide if the right is satisfied in this case. We hold that it is. As the
district court found, Glasss parcel has direct access to Minnesota Avenue already, and he
and the prior parcel owners relied on that access for years. Although it may be more
convenient for Glass to discard his original driveway and reach Minnesota Avenue by
19
40th Street, he has not contended that this change is necessary. See Magnuson v.
Cossette, 707 N.W.2d 738, 745 (Minn. App. 2006) (applying doctrine of easement of
necessity and noting that the easement must be more than a mere convenience). Glass
attempts to establish hypothetical necessity by insisting that exercising his right to sever
his L-shaped parcel by selling Lot 1 would leave the owner of the severed lot landlocked
and without access to Minnesota Avenue except by 40th Street. This assertion does not
help his position for two reasons.
First, we must decide the case on the present facts, and presently, Glass owns the
entire parcel, which abuts Minnesota Avenue with no need to rely on 40th Street. And
although the individual lots theoretically could have been singly owned by different
individuals, they were not. The record establishes that the owner of Lot 1 always also
owned at least Lots 2 and 16, allowing direct access to Minnesota Avenue from the
parcel. And even if Lot 1 had previously been separately owned and landlocked, Glasss
ownership of the merged three lots eliminated Lot 1s hypothetical need to rely on any
other lot to access the public thoroughfare. The merger doctrine is intended to
extinguish easements when title to the dominant and servient estates are united in one fee
owner simply because one has no need for an easement in property one owns in fee.
Pergament v. Loring Props., Ltd., 599 N.W.2d 146, 151 (Minn. 1999).
Second, Glasss hypothetical future sale would not leave the landlocked owner of
Lot 1 without a remedy because she could either petition the city to open 40th Street or
rely on the common-law principle of implied grant of easement by necessity. When a
landowner conveys part of his land and retains another, he is presumed to convey to the
20
owner of the landlocked portion an easement of access to the thoroughfare across the
retained portion. Romanchuk v. Plotkin, 215 Minn. 156, 160-61, 9 N.W.2d 421, 424
(1943) (outlining elements of easement by implication of necessity). The district court
properly rejected Glasss right-to-access argument. Glass has adequate access by Lot 16,
which he and his predecessors have long relied on to reach the house on Lot 2.
We conclude that the district court did not err by determining that Glass lacks the
right to construct a private driveway on property owned by the Bolens and Zajac within
the 40th Street corridor. We must next decide whether the city has, nevertheless,
lawfully conferred that right to Glass.
III
The district court determined that the city exceeded its authority by granting a
permit to allow a private citizen to develop a public easement for private driveway
purposes. The city claims that the district court ignored the authority granted by its
Legislative Code, which includes a charter and general ordinances. We do not read this
code to confer the claimed authority.
The city contends that it derives the authority to issue the permit to Glass on the
following provision of the city charter: The council may by ordinance permit abutting
owners to make use of portions of public highways not physically being used or occupied
by the public upon such terms and conditions and by such procedure as the council, in
each such ordinance, may provide. Duluth, Minn., City Charter ch. XIII, 100(d)
(1964). The city asserts that under this section, it enacted a general ordinance giving the
city engineer the authority to issue special permits to private parties to make local
21
improvements in, upon or under the public highways and public grounds of the city, as
such local improvements are defined and authorized by Chapter IX of the City Charter.
Duluth, Minn., Legislative Code 45-84.
We disagree that section 100(d) authorized the city to permit Glass to construct a
private driveway within the corridor on the Bolen and Zajac properties. First, section
100(d) expressly concerns permitted use by abutting property owners, and Glass does not
fit that description for the challenged portions of his proposed driveway. An abutting
property is one that share[s] a common boundary. Blacks Law Dictionary 11 (8th ed.
2004); see also Kochevar, 273 Minn. at 276, 141 N.W.2d at 26 (describing abutting
landowner[s] ownership as extending to the centerline of the segment of the street
adjacent to the landowners lot). Glass is an abutting owner only so far as his property
extends lineally along the 40th Street corridor beside Lot 1; Glass is not an abutting
owner on the southern half of the corridor where the centerline marks the boundary
between Lots 24 and 15, owned by the Bolens and Zajac, and his private rights to the
northern half do not extend west of the centerline.
Second, section 100(d) authorizes the city council by ordinance [to] permit
abutting owners to use an unused or unoccupied part of a public highway based on the
terms that each such ordinance may provide. The city enacted no ordinance permitting
and defining the terms of Glasss use of the public-roadway easement. While the city
contends that section 45-84 is such an ordinance, that section concerns local
improvements by private parties upon or under public highways and public grounds. And
a party making improvements under the ordinance must assign, set over, and transfer
22
unto the city, in trust for the use and benefit of the public, such improvement. Duluth,
Minn. Legislative Code 45-86 (emphasis added). Section 45-84 contemplates local
improvements for the public benefit. It does not purport to authorize permission to make
improvements exclusively for private use. We conclude that section 45-84 did not
authorize the city to permit Glass to build his private driveway along portions of the 40th
Street corridor that abut property owned by the Bolens and Zajac. We therefore need not
consider the larger question, whether the city has the constitutional authority to do so.
We hold that the district court correctly determined that the city code did not authorize
the city to permit Glass to enter, modify, and use those portions of the 40th Street
corridor that he does not own. The only remaining question is whether the district court
went too far by requiring Glass to restore the portion of the corridor that he does own.
IV
Glass asserts that the district court erred by ordering him to restore the entire 40th
Street corridor to its previous condition, even those parts that abut Lot 1 and to which
Glass holds the underlying fee. Because Glass owns the underlying fee to the centerline
of that part of the 40th Street corridor that abuts Lot 1, he is entitled to use that property
as he sees fit, subject only to the right of the public to use or remove [the property] for
the purpose of improvement. Kochevar, 273 Minn. at 276, 141 N.W.2d at 26. We are
not persuaded by the Bolens and Zajacs response that this injunctive remedy is
necessary as an alternative to money damages because the actions taken by Glass, even
on his own lot, allegedly created the appearance of a street, public in nature and inviting
public use. The Bolens and Zajac offer no legal support for the novel idea that to
23
remedy a trespass into neighboring property the court may prohibit improvements to the
trespassers property. We therefore modify that part of the district courts decision so as
to require Glass to restore only those portions of the 40th Street corridor to which he is
not the fee-holder.
D E C I S I O N
The district court acted within its discretion by adding Zajac, a clearly interested
party, as a plaintiff after trial. Under Minnesota law, an owner of a platted lot within a
municipality does not have the private right unilaterally to improve land to open a street
dedicated to public use when he is not the fee holder, and the lot owner in this case also
has made improvements insufficient to satisfy the dedications public purpose. The City
of Duluths legislative code does not authorize the city to permit a lot owner within a plat
to construct a private driveway for private use on property beyond the lot owners title.
Although the district court accurately determined that the breaching owner may not
construct his driveway on his neighbors property, it abused its discretion by ordering
him to restore the property on those portions of the contested corridor to which he holds
the underlying fee. We therefore affirm the district court and modify its judgment only to
limit the remedy.
Affirmed as modified.
 

 
 
 

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