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REAL PROPERTY - lake not road, so no cartway for landowner; fees reversed

In the Matter of the Petition of:
Michael C. Rollins for the Establishment of a Cartway.
Filed September 25, 2007
Affirmed in part and reversed in part
Muehlberg, Judge*
Cass County District Court
File No. 11-CV-06-286
Wilbert Hendricks, Hendricks Law Firm, 327 Barclay Avenue, P.O. Box 90, Pine River,
MN 56474; and
Katherine MacKinnon, 3744 Huntington Avenue, St. Louis Park, MN 55416 (for
appellant Michael C. Rollins)
Timothy J. Grande, Frederick W. Vogt, Mackall, Crounse & Moore, PLC, 1400 AT&T
Tower, 901 Marquette Avenue, Minneapolis, MN 55402-2859 (for respondents Ivan and
Lois Krueger)
Stephen G. Andersen, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730
Second Avenue South, Minneapolis, MN 55402 (for respondent Cass County Board of
Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and
Muehlberg, Judge.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals
by appointment pursuant to Minn. Const. art. VI, 10.
Cartways created under Minn. Stat. 164.08 (2006) are intended to connect
otherwise inaccessible parcels of land to a public road. Leech Lake is not a public road
for cartway purposes. Therefore, a landowner is not entitled to a cartway connecting the
landowners property to Leech Lake.
Appellant Michael Rollins, who owns land on the west shore of Bear Island on
Leech Lake, petitioned respondent Cass County for a cartway to provide access to his
land from the east side of the island over land owned by respondents Ivan and Lois
Krueger. When the county denied Rollinss petition, he appealed the denial to the district
court. By summary judgment, the district court affirmed the countys decision, denied
Rollinss motion for sanctions, and awarded the Kruegers attorney fees and costs from
Rollins. Rollins appeals. The proposed cartway would not connect Rollinss land to a
public road. Therefore, Rollins is not entitled to a cartway, and the district court properly
affirmed the countys denial of the cartway petition. But because the district court failed
to cite any authority to support its award of attorney fees and costs to the Kruegers, and
because the relevant portions of the record do not clarify the question, we, on this record,
reverse the award of fees and costs against Rollins.
Bear Island on Leech Lake is not connected, by bridge or otherwise, to the
mainland. Rollins owns 3.3 acres of lakefront land on the western shore of Bear Island.
A platted trail starts at the eastern shore of Bear Island and runs west to Lot 1 on the
western shore of the island. Lots 2-14 are on the western shore of the island and run, in
numerical order, south from Lot 1. Where the platted trail reaches Lot 1, it turns south
and continues to Lot 14. Rollins owns lots 8, 12, 13, and 14. Where the platted trail
starts on the eastern shore of Bear Island, there is a hill, and topography makes it more
convenient to access the island over the Kruegers land just south of the platted trail. Just
before the platted trail reaches Lot 1 on the west side of the island, topography makes it
easier to cut across another portion of the Kruegers land to get to the portion of the
platted trail that runs south. The Kruegers predecessor in interest used a bulldozer to
clear a trail that approximates the platted trail, except for the eastern-shore access point
and the Lot-1 point. At those two places, the cleared trail followed the islands
topography. The western shore of Bear Island is steeper than the eastern shore, and when
the weather is bad, the western shore of the island lacks the shelter available on the
eastern shore of the island.
In 1999, Rollins started proceedings to gain an access to his land by a route
partially over the platted trail and partially over the Kruegers land. Rollinss legal
proceedings culminated in a May 2005 judgment and a September 2005 order in which
the district court rejected Rollinss claims that a road following the cleared trail existed
by statutory dedication, that a road existed following the cleared trail by common-law
dedication, that he had an easement by implication or necessity following the cleared
trail, and that he had an easement by prescription following the cleared trail. Other issues
regarding damages were apparently not resolved at that time.
Two weeks after the district courts September order, Rollins petitioned the county
to establish a cartway across the Kruegers land following the cleared trail.
Before the district court tried the remaining damages issues, Rollins petitioned this
court for a writ of prohibition/mandamus to remove the district court judge then
presiding over the matter. This court denied the petition.
In December 2005, the county denied Rollinss cartway petition, and in January
2006, he started a new district court proceeding when he appealed the countys denial of
his cartway petition to district court. In February 2006, the district courts determinations
in the first (dedication and easement) action were challenged in this court when Rollins
appealed, and the Kruegers filed a notice of review.
After an August 9 district court hearing on the parties summary-judgment
motions in Rollinss appeal of the denial of his cartway petition, the district court granted
the Kruegers summary judgment affirming the countys denial of Rollinss cartway
petition, denying Rollinss motion for sanctions against the Kruegers, finding Rollinss
motion for sanctions to be in bad faith, and awarding the Kruegers ,732 in attorney fees
and costs they incurred in defending against Rollinss motion for sanctions. On
September 19, this court affirmed the district courts rulings in the appeal then pending in
this court. Rollins v. Krueger, No. A06-248, 2006 WL 2677833, at *1 (Minn. App. Sept.
19, 2006). In November, Rollins filed this appeal from the district courts summary
judgment affirming the countys denial of Rollinss cartway petition and the award to the
Kruegers of fees and costs.
1. Did the district court err by granting summary judgment affirming the
countys denial of Rollinss cartway petition?
2. Does the record support the award to the Kruegers of attorney fees and
costs they incurred in defending against Rollinss motion for sanctions?
A town board[1] shall establish a cartway upon a petition of an owner of a tract of
land . . . [who] has no access thereto except over a navigable waterway or over the lands
of others. Minn. Stat. 164.08, subd. 2(a) (2006); see also Minn. Stat. 645.44, subd.
16 (2006) (stating [s]hall is mandatory). Here, the district courts summary judgment
affirmed the countys denial of Rollinss cartway petition by ruling that Rollins already
had direct access to his property across Leech Lake and that Rollinss reading of the
1 In an unorganized territory, the board of county commissioners of the county in which
the tract is located shall act as the town board. Minn. Stat. 164.08, subd. 2(b) (2006).
Here, because Bear Island is part of an unorganized territory in Cass County, Rollinss
cartway petition was presented to the Cass County Board.
statute to allow him a right to access his property over land belonging to the Kruegers
when weather prohibits travel to the west side of the island, but provides a safe journey
from the east side of the island . . . would wreak havoc upon nearly every island upon
every body of water in Minnesota[.] Citing the portion of the cartway statute stating that
a cartway shall be established where a landowner has no access to his property except
over a navigable waterway or over the land of others[,] Rollins argues that the district
court erred by using what it determined was his direct access to his property from the lake
as a basis for affirming the countys denial of the cartway petition.
On appeal from summary judgment, appellate courts address two questions
(1) whether there are any genuine issues of material fact and (2) whether the lower
courts erred in their application of the law. In re Daniel, 656 N.W.2d 543, 545 (Minn.
2003) (quotation omitted). In doing so, an appellate court views the record in the light
most favorable to the party against whom summary judgment was granted. Offerdahl v.
Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). And where, as
here, the relevant facts are undisputed, a district courts application of the law to the facts
results in a conclusion of law which is reviewed de novo, and the sole issue is whether
the district court correctly interpreted Minn. Stat. 164.08, subd. 2. Daniel, 656
N.W.2d at 545. Statutes are interpreted to effectuate the intent of the legislature. Minn.
Stat. 645.16 (2006).
The purpose of a cartway is to connect[] a petitioners land with a public road.
Daniel, 656 N.W.2d at 546. Rollins, however, seeks a cartway to connect his property
with the lake. Public road for cartway purposes is not explicitly defined by statute or
by caselaw. For the reasons stated below, however, we conclude that the lake is not a
public road for cartway purposes.
Cartways are addressed in chapter 164 of the Minnesota Statutes. The definitions
in Minn. Stat. 160.02 (2006) apply to chapter 164, but those definitions lack a
definition of public road. Minn. Stat. 164.01, .02 (2006). Also, the types of roads
and highways defined in Minn. Stat. 160.02 do not include waterways.2 Further, with
the exception of some city streets,
[f]or the purposes of chapters 160 to 165 the roads of this
state shall be designated and referred to as trunk highways,
county state-aid highways, municipal state-aid streets, county
highways, and town roads. They shall be established, located,
constructed, reconstructed, improved, and maintained as
provided in chapters 160 to 165 and acts amendatory thereto.
Minn. Stat. 160.01, subd. 1; see Minn. Stat. 160.01, subd. 2 (excluding some city
streets from the categories of roads listed in Minn. Stat. 160.01, subd. 1). Because the
non-city-street roads of this state are, at least for purposes of chapters 160 to 165,
divided into the categories listed, and because the categories listed do not include
waterways, we decline to read the relevant statutes to include Leech Lake as a public road
for cartway purposes. See, e.g., Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d
2 The county argues that under In re Daniel, 644 N.W.2d 495 (Minn. App. 2002),
whatever a public road is defined to be, it requires a legally enforceable right to access
over a road controlled by a public authority. The cited Daniel opinion, however, was
reversed by the supreme court. Daniel, 656 N.W.2d at 546.
631, 638 (1963) (stating that [i]f there is to be a change in the statute, it must come from
the legislature, for the courts cannot supply that which the legislature purposefully omits
or inadvertently overlooks); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App.
1987) (stating that the task of extending existing law falls to the supreme court or the
legislature, but it does not fall to this court), review denied (Minn. Dec. 18, 1987).
Rollins argues that the lake can be deemed a public road because it is a navigable
water and caselaw treats navigable waters as public highways. To support his
argument that navigable waters are treated as public highways, Rollins cites two cases.
The first case Rollins cites is Page v. Mille Lacs Lumber Co., 53 Minn. 492, 55
N.W. 608 (1893). For two reasons, however, it is not helpful here. First, the supreme
court vacated Page shortly after it issued that opinion. 53 Minn. 501, 55 N.W. 1119
(1893). Second, to the extent Rollins makes an argument including an analysis similar to
that presented in the vacated Page opinion, we reject that argument because Page is not
analogous to the current case. See Viebahn v. Bd. of Commrs of Crow Wing County, 96
Minn. 276, 283, 104 N.W. 1089, 1092 (1905) (stating [w]hile the order granting a new
trial in the Page case was subsequently set aside for some defect in the return to this
court, the decision on the merits has been accepted as, and is now understood to be, the
law of this state). Page involved a district courts dismissal of a nuisance suit brought
by a lumber company owning a mill downstream from a blockage of the stream created
by another lumber company. 53 Minn. at 497-98, 55 N.W. at 608. The supreme court
acknowledged that the dismissal of the suit was consistent with one of its prior opinions,
but it also stated that it was convinced that the prior opinion involved an error in the
application of the general rule that an individual can maintain a private action for a public
nuisance only when he sustains special injury differing in kind, not merely in degree or
extent, from that sustained by the general public, that he may recover damages in a
private action[.] Id. at 498-99, 55 N.W. at 609. The supreme court then noted that it
had recently expressed doubts of the correctness of the [prior] decision[,] that [i]t is
obvious that there has been a very marked conflict of opinion in the application of the
rules pertaining to the rights of private parties to have redress in private actions when
injuries have grown out of public nuisances[,] and that [t]his conflict, and that the
adjudicated cases are irreconcilable[.] Id. at 499, 55 N.W. at 609.
In reevaluating its prior holding regarding the circumstances under which a private
action may be maintained for a public nuisance, Page incidentally states that [t]he
general doctrine in reference to the use of navigable streams as public highways is that
each person has an equal right to their reasonable use [of the stream] and that in most
respects streams used for highway purposes are governed by the same general rules of
law as are highways upon land. Id. at 500, 55 N.W. at 609. Opinions must be read in
light of the issue presented for decision. Skelly Oil Co. v. Commr of Taxation, 269
Minn. 351, 371, 131 N.W.2d 632, 645 (1964). And assumptions underlying an opinion
that are not the subject of a courts analysis are not precedential on the point that is
assumed. See Chapman v. Dorsey, 230 Minn. 279, 288, 41 N.W.2d 438, 443 (1950)
(stating that an opinion deciding an appeal based on the assumption that appellate
jurisdiction existed is not precedential regarding the existence of appellate jurisdiction
where the existence of appellate jurisdiction was not addressed by the court). Here,
because the crux of Page is the supreme courts reevaluation of its prior ruling regarding
the circumstances under which a private action may be maintained for a public nuisance,
and because Pages statements analogizing navigable streams to public highways was not
the focus of the supreme courts analysis, we decline to read Page to require that Leech
Lake be treated as a public road for cartway purposes, especially where the definitional
statutes relevant to cartways apparently exclude waterways from being public roads.
The second case Rollins cites involved a challenge to the issuance of public bonds
to finance the alteration of bridges over the Mississippi River to ensure a minimum
clearance above the river. Bybee v. City of Minneapolis, 208 Minn. 55, 55-56, 292 N.W.
617, 617 (1940). In doing so, it takes judicial notice that the Mississippi River is a
navigable stream within the requirements specified in Lamprey v. State, 52 Minn. 181, 53
N.W. 1139 [(1893)]. As such, it is an actual or potential artery for river traffic. In this
sense it is a public highway. Bybee, 208 Minn. at 56-57, 292 N.W. at 618. For three
reasons, we conclude that Bybee does not require Leech Lake to be deemed a public road
for cartway purposes. First, Bybee does not state that navigable streams are public
highways, it says that, in the sense that the river is an artery for river traffic, it will be
treated as a public highway. Id. Thus, Bybee held that, for purposes of addressing the
publics right to use the river, it would analogize the river to the publics right to use a
public highway. Id. Rollins cites no precedent allowing him to parley Bybees analogy
regarding use of an already existing waterway into authority for requiring owners of
private property to surrender their property rights for the creation of a previously
nonexistent cartway. Second, as noted above, the relevant statutes appear to exclude
waterways from being public roads for cartway purposes. Third, Bybees statement that
the Mississippi River was deemed a public highway in the sense that the public had a
right to its use was based on Lamprey. And Lamprey was unambiguous that the rule
recited therein defining navigable waterways is a common-law rule. Lamprey, 52 Minn.
at 198-200, 53 N.W. at 1143-44. We decline to apply a common-law rule to the statutory
cartway process, especially when the requested application of the common-law rule is
contrary to the relevant statutory definitions that seem to exclude waterways from the
definition of public roads.
Rollins moved the district court, under Minn. Stat. 549.211 (2006) and Minn. R.
Civ. P. 11, for sanctions against the Kruegers and the county. The day before the
hearing, the Kruegers submitted a memorandum and supporting affidavit opposing
Rollinss motion. The memorandum cited Minn. Stat. 549.211, subd. 4(a), and rule 11
to argue that Rollinss motion for sanctions was unsupported, made in bad faith, and that
they should be awarded ,732 in expenses and fees for defending against Rollinss
motion. The affidavit averred that the Kruegers had incurred ,532 in fees and expenses
defending against Rollinss motion for sanctions and that they expected to incur an
additional ,200 by the conclusion of the hearing. The district court denied Rollinss
motions, found that Rollinss motion for sanctions [was] made in bad faith and warrants
sanctions[,] and awarded the Kruegers ,732 for attorneys fees and reasonable costs
incurred in defending [against Rollinss] motion for sanctions. Rollins challenges this
Fee awards under Minn. Stat. 549.211 and rule 11 are discretionary with the
district court and will not be altered on appeal absent an abuse of discretion, but appellate
courts review de novo a district courts construction of statutes and rules, including Minn.
Stat. 549.211 and rule 11. Johnson ex rel. Johnson v. Johnson, 726 N.W.2d 516, 518
(Minn. App. 2007). Also, attorney fees are generally recoverable only if there is a
statutory authorization or a contractual agreement allowing their recovery. Garrick v.
Northland Ins. Co., 469 N.W.2d 709, 713 (Minn. 1991). Here, there is no question of a
contractual authorization for an award of attorney fees, and the district court awarded fees
and costs against Rollins because it found his motion for sanctions to be in bad faith, but
it cited no statutory authority for its award. Under Minn. Stat. 549.211, subd. 4(b), a
district court may, on its own initiative, issue an order that describes conduct that is
apparently sanctionable under Minn. Stat. 549.211, subd. 2, and direct the alleged
offender to show cause why it has not violated the statute. The finding that Rollinss
motion under Minn. Stat. 549.211 was in bad faith could be read to suggest an
application of Minn. Stat. 549.211, subd. 4(b), but because the district court did not
invoke the show-cause procedure described in that statue, it cannot be used to support the
award of fees and costs against Rollins. See Minn. R. Civ. P. 11.03(a)(2) (creating, under
rule 11, a similar show-cause procedure for apparently sanctionable conduct).
Alternatively, a party prevailing in a sanctions dispute under Minn. Stat. 549.211
may be awarded the reasonable expenses and attorney fees incurred in presenting or
opposing the motion. Minn. Stat. 549.211, subd. 4(a). The Kruegers memorandum
seeking to recover fees and costs incurred in defending against Rollinss motion for
sanctions invoked this provision but, as noted, the district court did not cite any authority
for its award. Thus, the district courts failure to rely on the explicitly cited Minn. Stat.
549.211, subd. 4(a), renders that provision conspicuous by its absence from the district
courts order. Also, as described above, there is at least some indication that the district
court may have been thinking of Minn. Stat. 549.211, subd. 4(b), when it made its
award. On this confused record, and given both the lack of authority cited by the district
court and the fact that the Kruegers request was made the day before the hearing, we
decline to affirm the award of attorney fees and costs against Rollins based on an
invocation of Minn. Stat. 549.211, subd. 4(a), the authority that the district court
apparently implicitly rejected. Therefore, we reverse the award of attorney fees and costs
against Rollins.
Because Leech Lake is not a public road for cartway purposes, there is no public
road to which Rollinss proposed cartway can connect, and we affirm the district courts
grant of summary judgment affirming the countys denial of Rollinss petition for a
cartway. But given the unclear record and the lack of clearly dispositive authority, we
reverse the award of attorney fees and costs against Rollins.
Affirmed in part and reversed in part.


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