This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0082
State of Minnesota, by its Commissioner
of Transportation, petitioner,
Respondent,
vs.
Robert P. Carlson, et al.,
Appellants,
North Shore Federal Credit Union, et al.,
Respondents Below.
Filed August 10, 2015
Affirmed
Hudson, Judge
Lake County District Court
File No. 38-CV-13-147
Lori Swanson, Attorney General, Mathew Ferche, Assistant Attorney General, St. Paul,
Minnesota (for respondent)
Dan Biersdorf, Ryan Simatic, E. Kelly Keady, Biersdorf & Associates, P.A.,
Minneapolis, Minnesota (for appellants)
Considered and decided by Cleary, Chief Judge; Hudson, Judge; and Worke,
Judge.
UNPUBLISHED OPINION
HUDSON, Judge
Appellants challenge the district court’s final partial judgment denying their
motions for declaratory judgment, contending that the state’s failure to record its right-of-
way interest in a trunk highway precludes the state from claiming any interest beyond the
highway itself and its ditches. Because state law at the time of the taking of a permanent
easement on appellants’ land for construction of a trunk highway did not require the state
to record its interest, because appellants had notice of the extent of the easement, and
because the state maintained actual possession of the easement since the original taking
and did not abandon any portion of it, we affirm.
FACTS
In 1921, the Lake County Board of County Commissioners granted a petition to
establish a road along the north shore of Lake Superior. The road is now designated as
Highway 61, which crosses appellants’ properties. The right-of-way for the road at the
time of the board’s granting of the petition included 100 feet of land along the route of
the road, but the road as constructed does not encompass the entire right-of-way. The
county did not record its easement interest until 2012.
In February 2013, in connection with Highway 61, respondent Minnesota
Department of Transportation petitioned the district court for an eminent-domain taking
of easements regarding lands owned by appellants Robert and Jeannette Carlson, Mary
Robbins, Rosemary and Thomas Elbert, and Catherine and Donald Woznicki. Robbins
and the Elberts moved the district court for declaratory judgment that the department’s
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failure to record its interest precluded it from claiming any interest in land “beyond the
actual use of the highway” and that the department’s condemnation of the right-of-way
was an unlawful taking requiring additional compensation.
After a hearing in August 2014, the district court denied appellants’ motions. It
noted that, in addition to the county board minutes from 1921 designating a 100-foot
right-of-way for what was to become Highway 61, the 1922 and 1923 construction plans
for the highway and the department’s 1939 width order “confirmed the width of the
highway with respect to [appellants’] properties.”
The district court ruled that, because the relevant statute did not require that a
roadway right-of-way easement be recorded in 1921, the fact that the easement had
remained unrecorded until 2012 did not affect the state’s interest in the easement because
“[u]nrecorded interests, including title taken by eminent domain, are valid under the
common law against subsequent good-faith purchasers for value.” It also ruled that, even
if recording was required to protect the state’s right-of-way easement, appellants were not
good-faith purchasers because they had notice of the existence of the easement by virtue
of the existence of the highway and utility poles installed in 1939.
On December 22, 2014, the district court amended its order to state that its denial
of appellants’ motions was a final partial judgment under Minn. R. Civ. P. 54.02.
DECISION
Appellants contend that the district court erred by denying their motions because
the department’s unrecorded easement is limited to the land actually used by the road and
its ditches. “When the material facts are not in dispute, [appellate courts] review the
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[district] court’s application of the law de novo.” In re Collier, 726 N.W.2d 799, 803
(Minn. 2007).
Appellants primarily cite Minn. Stat. § 160.05, subd. 1 (2014), to argue that the
department’s interest is limited to “the width of the actual use” of Highway 61. Section
160.05 states the requirements for statutory dedication of a road; namely, that when land
is “used and kept in repair . . . for at least six years continuously as a public highway by a
road authority, it shall be deemed dedicated to the public to the width of actual use.”
Minn. Stat. § 160.05, subd. 1. What is now Highway 61, however, was established by the
act of a county board responding to a petition, it was not deemed to be a road under the
precursor to section 160.05. Compare Minn. Gen. Stat. § 2523 (1913) (authorizing
county boards to establish roads in response to petitions and requiring payment of
damages), with Minn. Gen. Stat. § 2563 (1913) (stating that when land is used and
maintained as a public highway for six years, it shall be “deemed” a road), and Minn.
Gen. Stat. § 2543 (1913) (stating that “no damages shall be assessed” when a town road
is established by dedication); see also Gilbert v. Vill. of White Bear, 107 Minn. 239, 241-
42, 119 N.W. 1063, 1064 (1909) (holding that precursor to section 160.05 “does not
apply to a road which had become an established highway at the time the act took effect”
and where the road “is laid out upon petition by the public authorities, or which has been
dedicated to the public by the execution and filing of a plat”). Section 160.05 is therefore
inapposite here.
This record conclusively demonstrates that the department’s interest includes a
100-foot right-of-way easement and is not limited to the roadway and its ditches. When
4
the state takes over a county road as a trunk highway, it is “vested with all rights, titles,
easements and appurtenances thereto appertaining.” Minn. Stat. § 161.18 (2014); see
also Larson v. State, 790 N.W.2d 700, 704 (Minn. 2010) (holding that when state holds
an easement because of condemnation, it holds the easement “in its entirety” and the
unused portion is not subject to discharge under condemnation statutes). The county
board records from 1921 document the county’s condemnation and payment of damages1
for a roadway that included a 100-foot right-of-way easement. Appellants’ argument
regarding the extent of the department’s original interest is therefore without merit.
Appellants alternatively contend that the department’s failure to record its right-of-
way easement renders it void under Minn. Stat. § 507.34 (2014). Section 507.34 requires
that “[e]very conveyance of real estate shall be recorded in the office of the county
recorder of the county where such real estate is situated; and every such conveyance not
so recorded shall be void against any subsequent purchaser in good faith.” See also
Minn. Gen. Stat. § 6844 (1913) (predecessor statute containing essentially identical
language). The department asserts that, under the law in force at the time, the county’s
seizure of land by condemnation was not a “conveyance.” But Minn. Gen. Stat. § 6813
(1913) defines “conveyance” very broadly as “includ[ing] every instrument in writing
whereby any interest in real estate is created, aligned, mortgaged, or assigned, or by
which title thereto may be affected in law or in equity, except wills, leases for a term not
1
Appellants challenge the assumption that damages were actually paid, speculating that
the payments ordered in the county board’s minutes may never have actually been
disbursed. Apart from this speculation, however, there is no indication in the record that
the amounts authorized to be paid were in fact not paid.
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exceeding three years, and powers of attorney.” The legislature’s use of broad language
to define conveyances combined with its failure to include condemnation in the
exceptions to the broad definition of conveyances indicates that condemnation does not
fall outside of the definition of conveyance. See State v. Caldwell, 803 N.W.2d 373, 383
(Minn. 2011) (“The doctrine expressio unius est exclusio alterius means that the
expression of one thing is the exclusion of another. Expressio unius generally reflects an
inference that any omissions in a statute are intentional.” (citations omitted)).2 We
therefore conclude that the state’s original condemnation of the land for Highway 61 was
a conveyance.
The department also responds, however, that any failure to comply with recording
requirements does not render its easement void against appellants because appellants are
not good faith purchasers. A purchaser who has “actual knowledge of facts which would
2
The department also cites Sanborn v. Van Duyne, 90 Minn. 215, 220, 96 N.W. 41, 42
(1903), and the contemporaneous statutory requirements that records be filed with the
county auditor, see Minn. Gen. Stat. §§ 2521, 2505 (1913), as evidence that acquisition of
land interests by condemnations were not understood as conveyances in 1921. But
Sanborn merely analyzed the differences in rights obtained when an easement was
conveyed by deed versus by condemnation, see 90 Minn. at 220-21, 96 N.W. at 41-42, it
did not hold that condemnation was not a conveyance. And the department cites no
authority supporting its implicit argument that a statutory direction that condemnation
papers related to road approval be filed with the county auditor means that they were
exempt from the requirement that conveyances be recorded.
The district court also implicitly cited Minn. Stat. § 645.27 (2014) to support its
holding that section 507.34 does not require the state to record its interests in land
obtained through eminent domain. Section 645.27 exempts the state from its laws
“unless named therein, or unless the words of the act are so plain, clear, and
unmistakeable as to leave no doubt as to the intention of the legislature.” But no
precursor statute to section 645.27 appears to have been in force in 1921. See Minn. Gen.
Stat. §§ 9408-9419 (1913) (containing statutes that appear to have been precursors to
what is now chapter 645). And the intent of the legislature in section 6844 appears to
have been to unambiguously require recording of “every” conveyance, without exception.
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put one on further inquiry” regarding the existence of an easement “is not a bona fide
purchaser entitled to the protection of the recording act.” Claflin v. Commercial State
Bank of Two Harbors, 487 N.W.2d 242, 248 (Minn. App. 1992), review denied (Minn.
Aug. 4, 1992). “Actual possession of real property is notice to all the world of the title
and rights of the person so in possession and also of all facts connected therewith which
reasonable inquiry would have developed.” Id. “The burden is on the party resisting the
prior unrecorded title to prove that he purchased or acquired such title in good faith.”
Miller v. Hennen, 438 N.W.2d 366, 369 (Minn. 1989).
Appellants imply that the records of the county board were too obscure to be
obtainable through reasonable inquiry and argue that their inquiry notice of the
department’s interest in Highway 61 is therefore limited to the road itself and its ditches.
Appellants cite no authority, however, that county board records regarding the
establishment of a road lie outside the boundaries of materials obtainable through
reasonable inquiry regarding the extent of the county’s easement interest. Furthermore,
indications of the department’s 100-foot right-of-way easement interest were also
obtainable from other sources, including previous litigation involving Highway 61. See,
e.g., Nelson v. Babcock, 188 Minn. 584, 585-86, 248 N.W. 49, 50 (1933) (“The right of
way acquired was 100 feet wide.”). We therefore conclude that the department’s interest
in the full 100-foot right-of-way easement is not void with regard to appellants under
Minn. Stat. § 507.34.3
3
We are mindful of the difficulties that situations like this might pose for title examiners.
When the state fails to record its land interests acquired prior to contemporary recording
7
Appellants also contend that, even if the department had a 100-foot right-of-way
easement notwithstanding its failure to record it, it abandoned the portions of that
easement not used by the road and its ditches under the Minnesota Marketable Title Act
(MTA). The MTA mandates that any claim of title that is not recorded within 40 years is
presumed to be abandoned. Minn. Stat. § 541.023, subds. 1, 2, 5 (2014). “Easements are
among the property interests that can be eliminated under the MTA.” Sampair v. Vill. of
Birchwood, 784 N.W.2d 65, 69 (Minn. 2010). The MTA’s presumption of abandonment
does not, however, apply to a party “in possession” of the affected land. Minn. Stat.
§ 541.023, subd. 6 (2014). “Even though easements are not possessory estates, the
possession exception of the MTA may be invoked by easement holders.” Sampair, 784
N.W.2d at 69. “[T]he MTA possession exception requires those seeking its protection to
prove use of an easement sufficient to put a prudent person on notice, giving due regard
to the nature of the easement at issue.” Id. at 67.
Appellants contend that the only evidence of use was the roadway itself, and that
the portion of the department’s 100-foot easement that lies outside the roadway and its
ditches has therefore been abandoned. This conflates a prompt with a conclusion. Under
the standard articulated in Sampair, the existence of the roadway is a prompt, placing “a
prudent person on notice, giving due regard to the nature of the easement at issue.” 784
requirements, title examiners may find it difficult to locate relevant records after their
examination of records at the county recorder’s office fails to reveal the extent of the
state’s interest. But where, as here, the observed roadway is a major state highway, we
conclude that reasonable inquiry would include additional steps such as inquiring with
the department of transportation and that such inquiry would reveal the full extent of the
state’s interest. We note also that the record does not indicate that appellants undertook
any inquiry beyond the examination of the title records in the county recorder’s office.
8
N.W.2d at 67 (emphasis added). A roadway easement includes its corresponding right-
of-way, not merely the physical features of the road itself.4 See Hrdlicka v. Haberman,
140 Minn. 124, 127-28, 167 N.W. 363, 364-65 (1918) (holding that actual roadway use
of less than width allowed by easement did not constitute abandonment of the unused
portion).
Abandonment of a public-road easement also requires more than mere nonuse; it
requires a showing of “affirmative and unequivocal acts of the public indicative of an
intent to abandon and inconsistent with the continued existence of the easement or right-
of-way.” Sterling Twp. v. Griffin, 309 Minn. 230, 235-36, 244 N.W.2d 129, 133 (1976).
Appellants also point to no actions by the department (and none appear in the record)
indicating its intention to abandon the unused portions of its right-of-way easement
associated with Highway 61. At most, appellants indicate that the department’s neglect
of vegetation growth constitutes abandonment of the unused portion of the easement. But
they highlight no authority holding that mere neglect of vegetation growth on the unused
portion of a right-of-way is an affirmative expression of intent to abandon the right-of-
way. As the state pointed out at oral argument, the existence of vegetation in the right-of-
way often serves a useful function, and it is not difficult to conceive of the public-safety
benefits of having an area of unused land running alongside a major public highway like
4
The department argues alternatively that the existence of power poles provided notice of
a wider easement than the roadway itself. Although the existence of power poles would
obviously put a prudent person on notice as to the existence of an easement for transit of
utility equipment, it would not reasonably put such a person on notice as to the existence
or extent of a roadway easement. Accordingly, we do not base our decision on the notice
provided by the utility poles.
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Highway 61. We therefore conclude that appellants have not shown that the department
affirmatively abandoned any portion of its 100-foot right-of-way easement associated
with appellants’ properties along Highway 61, and we hold that the district court did not
err by denying appellants’ motions.
Affirmed.
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