“Cartway” is an anachronistic term that invokes pastoral images of hay-laden oxcarts lumbering down country roads. But the term cartway has real meaning in Minnesota law, referring to the procedure by which a property owner with no legal access to a public road may petition the local township to provide the owner with access—termed a “cartway” in Minnesota statutes. Cartway law attempts to balance the tension between the right of a landlocked property owner to establish access to a public road through neighboring properties, against the rights of the neighboring property owners not to be unduly disturbed and damaged by the establishment of the access.
In July, the Minnesota Supreme Court decided a case that addressed this balancing act and concluded, on the one hand, that a landlocked property owner must be given a “meaningful” cartway access, but on the other hand, the courts cannot dictate where that access should be. Kennedy v. Pepin Township of Wabasha County, ___ N.W.2d ___ (App.File No. A08-1921, July 15, 2010).
The Minnesota cartway statute obligates a township to establish a cartway to provide access to a landowner who has no access to a public road except over the land of the owner’s neighbors. Minn. Stat. § 164.08. The statute directs that the town board “shall establish a cartway” upon the petition of a landowner who has no access to a public road. The petitioning landowner is obligated to pay compensation to the neighboring land owner on which the cartway is built and is further obligated to pay the cost of constructing the cartway itself, unless the town board finds that establishing the cartway is in the public interest. Id.
In the recently-decided Kennedy case, Mr. Kennedy petitioned Pepin Township for a cartway to provide access to a five-acre portion of his 26.6-acre tract of land situated along Highway 61, overlooking the Mississippi River in Wabasha County. Most of Kennedy’s land is steep bluff, but includes a flat, five-acre parcel sitting atop the bluff. Kennedy requested the Township to give him access to the blufftop land by establishing a cartway through a privately-owned apple orchard. The orchard owner1 vigorously opposed the cartway, arguing that secure boundaries to the orchard were required to limit predators and discourage trespassers. Moreover, the orchard owner argued that it needed to protect new varieties of apples it was developing under contract with the University of Minnesota. The orchard owner asked the Township to establish an alternative route under language in the cartway statute that allows a town board to do so, “if the alternative is deemed by the town board to be less disruptive and damaging to the affected landowners and in the public’s best interest.” Id., subd.. 2(a).
The Township denied Kennedy a cartway through the apple orchard, but granted an alternative route that it determined was the least expensive and least disruptive. It established a cartway off an existing private road that accessed Highway 61 at the base of the bluff. Kennedy found this route unsatisfactory because it did not achieve his goal of accessing his five-acre parcel at the top of the bluff, so he appealed to the district court.
The district court affirmed the town board’s decision, stating that the court could “find no authority … that states that the cartway must provide access to the entire parcel.” Kennedy then appealed the district court decision to the court of appeals, which reversed the town board’s decision, concluding that “when one portion of usable, landlocked property cannot be accessed due to the nature of the property, the access requirements of the cartway statute are not fulfilled even though another portion of the property is accessible.” The court of appeals remanded the case with instructions to the Township to establish the cartway across the orchard as “the most reasonable route to the useable portion of Kennedy’s property.”
The Minnesota Supreme Court granted review, affirmed part of the court of appeals decision and reversed another part. The Supreme Court upheld the court of appeals’ rejection of the cartway route that the Township had selected. The Supreme Court held that the Township must select a cartway route that provides meaningful access to land; the Township’s establishment of a cartway that did not give Kennedy access to his blufftop was not meaningful and therefore erroneous. Two dissenting justices pointed out that there was no requirement in the cartway statute that the access be “meaningful” and expressed doubt on how “meaningful” access would be determined.
The Supreme Court disagreed with and reversed the court of appeals’ decision ordering the Township to establish the cartway in the location requested by Kennedy—through the orchard. The Supreme Court said that the court of appeals had overstepped its bounds in ordering the Township to establish a particular cartway route because establishing a cartway is a legislative decision to which the courts must ordinarily give deference: “We agree with the Township that the selection of a route is a decision allocated by statute to the Township to make in its discretion. … It is not within an appellate court’s power to substitute its judgment for that of the Township in selecting a route that provides access to the usable portion of [Kennedy’s] land.”
Moreover, the Supreme Court recognized that the Township’s discretion and authority as granted by statute allow the Township to either grant the cartway in the requested location, or establish the cartway in an alternative location, if the Township determines that (a) an alternative route will be less disruptive and damaging to neighbors, and (b) the alternative route is in the public’s best interest. The Court explained that, “among other factors”, the public’s best interest contemplates “meaningful and usable access that will encourage owners to put land to its best possible present use.”
This case now must return to Pepin Township for further proceedings. Based on the mandate from the Minnesota Supreme Court, the Township undoubtedly wil once again face the issue of the potential for disruption or damage to the neighboring property owners, including the orchard, with respect to proposed cartway routes. Additionally, the Township will be required to consider whether a cartway route will be in the public’s best interest. Finally, there will be the very real and practical consideration that the petitioner, Kennedy, will confront once a cartway is finally established—that is, the statutory requirement that he will be responsible for paying compensation to the owners of the property on which the cartway will be built and, most likely, paying for the construction of the cartway itself. Accordingly, while Minnesota cartway law does provide a way for a landlocked property owner to secure access to a public road, that access comes at a price.