Keith B. Hagen, et al., Appellants,
Windemere Township, Respondent.
County District Court File No. 58-CV-17-425
J. Steffenhagen, Jason S. Raether, Hellmuth & Johnson,
PLLC, Edina, Minnesota (for appellants)
A. Witty, Hal J. Spott, Hanft Fride, P.A., Duluth, Minnesota
Considered and decided by Larkin, Presiding Judge; Cleary,
Chief Judge; and Halbrooks, Judge.
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.
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.
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.
1988, appellant Daniel M. Ring purchased a parcel of land
abutting Wetherille Road. 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
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."
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."
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