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Hagen v. Windemere Township

Court of Appeals of Minnesota

May 6, 2019

Keith B. Hagen, et al., Appellants,
v.
Windemere Township, Respondent.

          Pine County District Court File No. 58-CV-17-425

          John J. Steffenhagen, Jason S. Raether, Hellmuth & Johnson, PLLC, Edina, Minnesota (for appellants)

          Scott A. Witty, Hal J. Spott, Hanft Fride, P.A., Duluth, Minnesota (for respondent)

          Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and Halbrooks, Judge.

         SYLLABUS

         Under Minn. Stat. § 365.10, subd. 11 (2018), when no maintenance or construction has been conducted on a section of a town road for 25 years or more, the town board lacks authority to open or maintain that section of the road unless the town's electors grant that authority. In the absence of authority to open or maintain a road, no duty exists to open or maintain the road.

          OPINION

          HALBROOKS, JUDGE

         This appeal arises from a dispute over maintenance and repair of a 2, 280-foot section of a town road and bridge. Appellant-landowners challenge the district court's rulings in favor of respondent-township on cross-motions for summary judgment on appellants' claims for mandamus, negligence, and nuisance. Appellant-landowners argue that the district court erred in determining that Minn. Stat. § 160.09, subd. 3 (2018), is not applicable. Because we conclude that respondent-township lacks authority to maintain the road and therefore has no duty to maintain it, we affirm.

         FACTS

         At issue in this appeal is the maintenance and repair of a 2, 280-foot section of Wetherille Road, located in Windemere Township. Wetherille Road was established as a town road in 1916 and constructed in the 1920s. The parties agree that respondent Windemere Township maintained Wetherille Road from its establishment until 1974. This dispute concerns the southernmost 2, 280 feet of the road, which includes a bridge. It has not been maintained since 1974.

         In 1988, appellant Daniel M. Ring purchased a parcel of land abutting Wetherille Road.[1] In 1991, Ring and other town residents requested that the township "re-establish, repair, upgrade, and maintain the [2, 280-foot] section of Wetherille Road." The township unanimously denied the request. Later in 1991, Ring and other residents requested that Pine County address the decision of the township board not to repair or maintain the 2, 280-foot section of the road. Pine County treated the request as an impassable-road complaint pursuant to Minn. Stat. § 163.16 (1990) and did not act on the complaint. In 1993, the township performed maintenance and repair on approximately 3, 000 feet of the road. But the final 2, 280 feet of road, including the bridge, was not repaired.

         In 2014, the landowners and others filed a second impassable-road complaint with Pine County alleging that the township's refusal to repair Wetherille Road "prohibits the reasonable use of a forty acre parcel at the south end of it" and that the township's "refusal to maintain the Road, or possible abandonment of the road, violates Minn. Stat. § 160.09, subd. 3." The township board chair responded to the county and the landowners by letter: "After much discussion concerning the Wetherille Road, Windemere Town has decided we cannot afford to get involved rebuilding this road. The Town has many roads that are in need of repair at this time."

         Later that year, the Minnesota Department of Natural Resources (DNR) sent a letter to the township stating that the bridge at issue needed to be removed or repaired and that if "the Town has abandoned the section of the road containing the collapsed Bridge, adjacent property owners are responsible for removal or repair. If this road section has not been abandoned, the Town is responsible."

         At a township board meeting in September, the board determined that township electors would decide at the annual meeting in March 2015, whether the township should remove or repair the bridge. At the annual meeting, the township's electors passed motions, citing Minn. Stat. § 365.10, subd. 11, "not to spend any money on the Wetherille Road ...


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