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STATE OF MINNESOTA IN COURT OF APPEALS A08-646 Dean Oliver, et al., Appellant, vs. State of Minnesota, by its Commissioner of Transportation, Respondent. Filed February 17, 2009 Reversed and remanded Ross, Judge Clay County District Court File No. 14-CX-06-000201 Zenas Baer, Zenas Baer and Associates, 331 Sixth Street, Box 249, Hawley, MN 56549 (for appellants) Lori Swanson, Attorney General, Erik M. Johnson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

Considered and decided by Connolly, Presiding Judge; Ross, Judge; and Bjorkman, Judge. SYLLABUS Whether there has been a taking of real property based on the right of access requires courts to analyze whether reasonably convenient and suitable access exists from the public roadway to the perimeter of the private property, not whether the access point may be conveniently reached from some internal location on the property.

OPINION ROSS, Judge This appeal arises from the district courts refusal to order the state to condemn a private property interest in rural Clay County after the state closed access to a privately owned roadway that had linked the claimants parcel to Highway 10 since 1955. More precisely, Dean and Delores Oliver brought a mandamus action in the district court to compel the state to condemn their property interest in an easement over their neighbors property that allowed the Olivers to access Highway 10. The district court granted summary judgment to the state. We reverse and remand because we hold that the

disputed facts may support the Olivers claim that they have a prescriptive easement and that the states closure of the easements access to Highway 10 constituted a taking. On remand, the district court should first address the unresolved issue of joinder of necessary parties. FACTS The history regarding access to the Oliver property is not in dispute. Dean and Delores Oliver purchased a Clay County parcel north of Highway 10 in 1951, a portion of which included a gravel pit. Three years later, the Olivers contracted with the state to sell sand, gravel, clay, and other road-construction material from their gravel pit and granted the state an easement for a road within the parcel allowing the state to haul material from the pit to the parcels southern boundary. They also conveyed to the state a 25-year right to enter and mine the material in exchange for payment. The state purchased easements from adjacent landowners to construct a "haul road" that ran along the eastern border of the Olivers property, over these adjacent servient parcels, and southward linking to 2

Highway 10. The states closing of the link from this haul road to Highway 10 in 2005 triggered this dispute. The Olivers parcel does not abut Highway 10. The parcels only access to Highway 10 has been by 250th Street, which abuts and runs along its western border, and the haul road just described, which abuts and runs along its eastern border. The servient estate owners retained fee title and the state acquired only easements to use the haul road. The states easements for use of the haul road expired in 1980. The Olivers and their neighbors continued to use the road to access their properties from Highway 10, but the parties disagree regarding the nature and extent of its use. The Olivers used the road for commercial transportation. They continued to sell gravel after 1980, and purchasers transported gravel from the Olivers gravel pit to Highway 10 using the haul road. But in 2005, the state closed the haul roads access to Highway 10, leaving the private road disconnected to any public thoroughfare. From the Olivers perspective, it became a road to nowhere. The state compensated a property owner to the Olivers immediate east for a total taking because that property enjoyed an express easement to use the haul road and the property became landlocked by its closure. In contrast, the state did not compensate the Olivers, whose parcel is not landlocked; its access to a public road remains immediate by its abutment to 250th Street. The Olivers brought a mandamus action in district court to compel the state to condemn their property. They argued that the closure constitutes a taking that requires compensation at least for their potential cost to construct a new internal roadway on their property to connect the parcels gravel pit to its 250th-Street access point. Specifically, 3

they claimed to have established a prescriptive easement over the haul road and that closure of its access to Highway 10 prevented reasonably convenient access to the parcel. The district court concluded that the Olivers did not prove a taking, and it entered summary judgment for the state. The Olivers appeal. ISSUES I. Does the states closure of the haul roads access to Highway 10 constitute a compensable taking based on the theory that the closing denied the Olivers reasonably convenient and suitable access to their parcel? Does the states closing of the haul roads access to Highway 10 constitute a taking based on the theory that the closing frustrated the Olivers property interest in a prescriptive easement? ANALYSIS The Olivers challenge the district courts summary judgment decision. Summary judgment is proper if there are no material fact disputes and one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On appeal from summary

II.

judgment, we review de novo the district courts application of the law and the district courts conclusion that no genuine issues of fact remain for trial. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We construe disputed evidence in the light most favorable to the Olivers as the nonmoving parties. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (viewing the evidence in the light most favorable to the nonprevailing party on summary judgment). Inverse condemnation actions seek to compel the state to compensate a landowner for its interference with a private property interest. Johnson v. City of Minneapolis, 667 N.W.2d 109, 111 n.1 (Minn. 2003). To prevail in their inverse-condemnation action, the Olivers must establish that the state interfered with ownership, possession, or enjoyment 4

of a property right. See Grossman Inv. v. State by Humphrey, 571 N.W.2d 47, 50 (Minn. App. 1997), review denied (Minn. Jan. 28, 1998). The Olivers argue that disputed facts construed in their favor establish that they have a prescriptive easement over the haul road and that the states closure of access to Highway 10 constitutes a denial of suitable access to their parcel for which the state must compensate the Olivers. The Olivers argue alternatively that "if [they] have a prescriptive right to access [Highway] 10 across the gravel ,,haul road . . . , [they] have a right to claim damages irrespective of having an alternative access to [Highway] 10." The first argument fails but the second has merit. I The Olivers primary theory offered to support their takings claim is not convincing. The state must compensate landowners whose private property is taken for public use. Minn. Const. art. I,

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