Popp v. County of Winona

• Decision Date: 04 October 1988
• Docket Number: No. C2-88-695,C2-88-695
• Citation: 430 N.W.2d 19
• Parties: Ricky L. POPP and Mary K. Popp, Appellants, v. The COUNTY OF WINONA, Respondent.
• Court: Minnesota Court of Appeals

Page 19

430 N.W.2d 19

Ricky L. POPP and Mary K. Popp, Appellants, v. The COUNTY OF WINONA, Respondent.

No. C2-88-695.

Court of Appeals of Minnesota.

Oct. 4, 1988.

Review Denied Nov. 23, 1988.

Syllabus by the Court

1. A party is not required to file an answer to an alternative writ as it would in a civil action, but may choose to rebut the writ by producing evidence at a show cause hearing as provided for in the alternative writ.

2. A property owner may not deny the validity of a plat if the owner acquired the subject property by a deed which references to the plat.

William A. Lindquist, Winona, for appellants.

Julius E. Gernes, Winona Co. Atty., Winona, for respondent.

Heard, considered and decided by HUSPENI, P.J., and NORTON and HACHEY ^*, JJ.

OPINION

RONALD E. HACHEY, Judge.

Appellants Ricky Popp and Mary Popp appeal from an order quashing their alternative writ of mandamus. The alternative writ directed respondent County of Winona to commence condemnation proceedings for the taking of appellants' property in connection with the widening of a county road, or in the alternative, show cause why it had not done so. After a show cause hearing and the submission of briefs, the trial court quashed the writ and denied any further relief to appellants. We affirm.

FACTS

The Popps have been owners of a homestead fronting on East Burns Valley Road, also known as County Road 105, since March 1987. The legal description of the Popps' land, as indicated in their warranty deed, references Lot Thirteen (13), a John Bohn Farm, and Iron Monuments which are located on the center line of County Road 105 and on the Popps' property.

During the summer of 1987, the county improved County Road 105 and widened it approximately seven feet. Appellants claim the improvements to the roadway took seventeen feet of their land. The actual roadway is now approximately twenty feet from the Popps' homestead, with the right of way limit being approximately ten feet from the homestead.

Before construction of County Road 105, Winona County did not negotiate with the Popps to obtain any additional right of way. The county believed that a dedicated right of way existed which was 66 feet in width; 33 feet on either side of the center line. The county confined all construction of the road to 33 feet on either side of the center line of County Road 105.

The county believed a roadway of 66 feet existed due to an 1880 auditor's plat on file with the Office of the County Recorder. The 1880 plat identifies lots, easements, and roadways as they relate to the Popps' property and County Road 105. The roadway depicted in the 1880 plat is 66 feet in width as scaled from the plat. The plat also references iron monuments which are located along the center line of the roadway and 33 feet from the center line on the Popps' property. A subsequent redrawing of the 1880 auditor's plat by the City of Winona in 1957 also shows a roadway of 66 feet in width.

No deed or condemnation proceeding dedicates County Road 105. The 1880 plat does not contain words of dedication, nor is it signed by the surveyor or a proprietor, nor does it label and number streets.

On November 12, 1987, the Popps filed a petition for writ of mandamus, contending that Winona County had seized their property without just compensation. The Winona County District Court issued an alternative writ of mandamus on November 18, 1987 directing the county to initiate condemnation proceedings or, in the alternative, show cause why it had not done so. The county did not file a formal answer, but chose to show cause at the hearing scheduled for this matter on November 30, 1987.

Appellants' attorney offered no evidence at the hearing, and did not believe that evidence would be presented at this time. At the hearing on this matter, the county filed an affidavit and offered the testimony of Richard Arnebeck, the Winona County highway engineer. Mr. Arnebeck testified that he believed that the 1880 plat dedicated the road, and also testified regarding the dimensions of the road and the iron monuments found in the road. No other evidence was presented and both parties thereafter submitted briefs and reply briefs on the issue of whether a taking had occurred.

On February 24, 1988, the trial court issued its order quashing the writ of mandamus, and denied all relief prayed for by the alternative writ of mandamus petition. The trial court's memorandum stated that because the plat was made by the auditor, there had been no statutory dedication of the road and further ruled that the county board by its resolution had no power to establish a road if it had not first legally acquired the land. However, the trial court found that because the 1880 auditor's plat was incorporated into the legal description in the Popps' deed, the Popps were estopped to deny dedication of the road to the full width of 66 feet as shown on the plat. The trial court held that the widening of the road had been confined to the 66-foot right of way, so no taking had occurred for which the Popps were entitled to compensation. Appellants contend that because this is not a statutorily dedicated road, Winona County did not gain title to more than the actual use of the road and cannot use estoppel to circumvent the constitutional requirement of just compensation when a taking occurs.

ISSUES

I. Did the trial court follow proper mandamus procedure?

II. Did the trial court err in quashing the alternative writ of mandamus?

ANALYSIS

A trial court's order on an application for mandamus relief will be reversed on appeal only where there is no evidence reasonably tending to sustain the trial court's findings. See State ex rel. Banner Grain Co. v. Houghton, 142 Minn. 28, 30, 170 N.W. 853 (1919). This court need not defer to the ultimate conclusions drawn by the trial court. Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349, 354 (Minn.1977).

I.

Appellants claim that the trial court did not follow the statutory procedures for a mandamus proceeding in allowing a hearing to be held, without Winona County first responding by filing a written answer. The alternative writ of mandamus, dated November 18, 1987, commanded the County of Winona to initiate condemnation proceedings in relation to appellants' property, or in the alternative, show cause why it had not done so. The county did not file an answer, but instead introduced the testimony of the county engineer to show cause why it had not initiated condemnation proceedings.

Appellants claim is made pursuant to Minn.Stat. Sec. 586.06 (1986), which provides:

On the return day of the alternative writ, or such further day as the court shall allow the party upon whom the writ is served may show cause by answer made in the same manner as an answer to a complaint in a civil action.

(Emphasis added). Appellants objected to the taking of evidence at the November 30th hearing, because no formal answer had been filed, and because Minn.Stat. Sec. 586.08 (1986) provides, in part:

No pleading or written allegation, other than the writ, answer, and demurrer, shall be allowed. They shall be construed and amended, and the issues tried, and further proceedings had, in the same manner as in a civil action.

The statute does not require a defending party to file an answer, but rather makes it permissive on a defendant's part. The county chose to take the alternative route of showing cause, as allowed in the alternative writ issued by the Winona County District Court. While appellants' attorney was surprised that evidence would be taken and did not offer any, the alternative writ clearly stated that Winona County could show cause at the hearing held on November 30, 1987. At this hearing, the trial court said that a full trial would be held if it were shown that facts were in dispute or that there was a question of law which required more evidence. The trial court ruled...