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What is a Cartway?
“Cartway” is not defined in the statutes. It is perhaps best defined by understanding how it is created, how it is maintained, its size and width, who can use it, and what other legal obligations go along with it. Technically, the definition of “town roads” includes “cartways.” Minn. Stat. § 160.02, subd. 6. But there are many obvious differences between cartways and town roads.
How Are Cartways Created?
I find three (arguably four) ways to create cartways, and one way to “re-establish” an abandoned cartway. As a practical matter, the first method is by far the most common and important.
Petition By a Landlocked Owner (or one Whose Access is Narrower than 33 Feet).
An owner who has no access to a public road except over lands of another or whose access is less than 33 feet wide is entitled, upon a proper petition (and meeting other criteria discussed below) to a cartway. Minn. Stat. § 164.08, subd. 2.
Petition for an “Agricultural Cartway.”
If there is a tract (or tracts) of land of at least 150 total acres, and if at least 100 of those acres are tillable, five town voters who own land in the town can petition for a cartway. The land need not be landlocked. Granting the petition is up to the board’s discretion. If the petition is granted, the cartway is to be 33 feet wide, it cannot be more than ½ mile long, and it must be located on a section line. Minn. Stat. § 164.08, subd. 1. These types of petitions are rare in Northeastern Minnesota.
Dedication of Cartway to Town.
Landowners can submit an application to the town clerk, describing the land that they want to have dedicated as a cartway. Within ten days of the application the town board may, if it so chooses, pass a resolution declaring the described land to be a cartway. Minn. Stat. § 164.14, subd. 1.
Section 164.11—Statutory Dedication?
A very odd statute says, “Land dedicated to public use as a street, road, or cartway, if not less than 30 feet in width, shall be deemed a legal cartway.” Minn. Stat. § 164.11. The precise meaning of that statute is baffling, but it arguably creates some cartways.
Re-establishing Abandoned Cartways.
If a cartway has not been worked or maintained for 25 years or more, the electors at the annual meeting can authorize the town board to open or maintain it. Minn. Stat. § 365.10, subd. 11. There are two implications there—(1) it would be opened or maintained at public expense and (2) the negative implication would seem to be that a town board (at least in a “rural” town) cannot do that without getting elector approval.
Physical Dimensions
Newly-established town roads must be at least 66 feet wide, but cartways are excused from that requirement. Minn. Stat. § 164.04. An “agricultural cartway” (see above) must be 33 feet wide and cannot be more than ½ mile long. A cartway for a landlocked owner must be at least 33 feet wide (and can be wider—under old law it could not exceed 49 ½ feet, but that law no longer applies) and, theoretically at least, can be any length. Minn. Stat. § 164.08, subd. 2. For other types of cartways width and length requirements are unclear. Section 164.08, subd. 2, says that a parcel is landlocked if its access is less than 33 feet wide, suggesting 33 feet as the minimum “standard” width for a cartway. But § 164.11 (above) perhaps suggests that cartways can be 30 feet wide. There are narrower old cartways.
Public Nature
A cartway is an easement for ingress and egress and the public has the right to use it. If the landowners who use a cartway agree in writing and if the board makes a resolution to that effect, the cartway can be converted into a private driveway. Minn. Stat. § 164.08, subd. 2.
Private Construction and Maintenance
Although a cartway is a public easement, the general rule is that the person who seeks to build the cartway has to construct it and the people who use it have to pay for its maintenance. In other words, as a general rule, cartways are privately constructed and privately maintained. Minn. Stat. § 164.08, subd. 2. There are three exceptions to that general rule:
1. If the board by resolution decides that it is in the public interest to spend road and bridge funds on a cartway, it may do so. Minn. Stat. §§ 164.08, subd. 2; 164.10.
2. If a cartway has not been worked or maintained for 25 years, the electors can authorize the board to open or maintain it—the negative implication seems to be that, without elector authorization, the board cannot open or maintain it. Minn. Stat. § 365.10, subd. 11.
3. Upon a petition by ten town taxpayers, and notice, the question of the town maintaining a cartway can be submitted to the voters at the annual election and, if the majority approve, the town must maintain the cartway. Minn. Stat. § 164.10.
CARTWAY CRIB SHEET—LANDLOCKED OWNERS
The Petition
The process is started by a petition filed with the town clerk. The board has the right to reject an inadequate or incomplete petition. The petition must be signed by the owner (or his attorney), ask for a cartway, describe the owner’s land, state that the land is landlocked (see below), describe the start, end, and general course of the proposed cartway, and identify persons over whose land the proposed cartway will go (preferably with legal descriptions of their property).
Required Acreage
The petitioner’s land must have the required minimum acreage. The general rule is that the landlocked parcel must contain at least 5 contiguous acres to qualify for a cartway. The exception is a parcel of less than five acres qualifies if, as of January 1, 1998, it was on record as a separate parcel of land that contained at least two acres.
Landlocked—What Does a Lack of Access Mean?
If the petition is proper and the petitioner has the requisite acreage, the board must grant a cartway if the petitioner’s land is landlocked (or if the access is less than 33 feet wide). A parcel is landlocked if there is no access to it from a public road except over the lands of others. So, what is “access?”
There are a number of court cases that discuss “access.” If the petitioner has an existing, legally enforceable easement, the courts usually find that there is “access.” But if the owner’s passage across the neighboring land is only with the neighbor’s permission or license, and not legally enforceable, the court usually finds no “access.” The court sometimes says that if the petitioner has some theoretical access to a public road but it is blocked by significant natural features, it is not “access”—for example, petitioners were found to have no “practical access” when the route would (1) require a 300 foot bridge, or (2) have to cross a muddy lake bottom, or (3) ascend a steep, rocky cliff at a cost of $75,000 or more. On the other hand, the court held that a long road over a swampy area would be sufficient “access.” The court seems to be willing to say that theoretical access is not “access” if the cost, length, terrain, or natural obstacles would make it unreasonably impracticable for anyone to build a driveway there.
Location of the Cartway
The board may select an alternative route if the alternative is deemed by the board to be less disruptive and damaging to the affected landowners and in the public interest. Minn. Stat. § 164.08, subd. 2. If you are going to select an alternative route (1) write up your findings and reasons for doing that and (2) seriously consider re-noting the hearing so people can be heard on the newly proposed route.
Damages
The petitioner is required to pay all “damages” before the cartway is constructed or opened. Minn. Stat. § 164.08, subd. 2. Damages fall into two basic categories—(1) compensation to the landowner(s) whose land the cartway crosses, and (2) the town’s own expenses. The board sets the amount of damage, subject to court review.
The cartway is an easement across the neighbor’s land, and the neighbor is entitled to just compensation for the imposition of that easement, and the travel that will take place on it. The basic approach is to consider any realistic economic detriment to the neighbor, subtract any realistic economic benefit to the neighbor, and award the neighbor the difference. The award can be zero. See generally, Minn. Stat. §§ 164.08, subd. 2 & 164.07, subd. 5.
The second element of damages is the town’s expenses. Damages include “the cost of professional and other services which the town may incur in connection with the proceedings for the establishment of the cartway.” Minn. Stat. § 164.08, subd. 2. That would include legal fees, and presumably a survey and appraisal if necessary. I believe it includes administrative expenses for the time the town officials devote to the matter, although the statute’s language is not absolutely clear on that point. There is currently a bill in the legislature seeking to make that clear.
Bond or Other Security for Damages
A town may by resolution require the petitioner to post a bond (or other acceptable security) in the estimated amount of the total damages, and can require this before taking action on the petition. Minn. Stat. § 164.08, subd. 2. Those estimated damages include the award to the neighbors, the town’s legal or other professional expenses, and (in my view) the town’s administrative expenses. Requiring the petitioner to post security (1) protects the town from a loss if the petitioner drops the petition, (2) emphasizes to the petitioner that a cartway proceeding is not a free ride, (3) lets the petitioner have a rough estimate of how much the process might cost, and (4) can result in the petitioner becoming more interested in working out a private arrangement with his neighbor. Highly recommended.
Other Procedural Rules
The procedural rules—notices, hearings, filings, and so forth—are very important, but also largely mechanical. They have not all been discussed here. They are in Sections 164.08 and 164.07, and you must read, study, and follow them. Get your town attorney involved and use the petitioner’s bond (or security) to “cover” your legal fees.
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For more information on governmental, municipal and township issues, contact Tim A. Strom, tas@hanftlaw.com or 218-722-4766.
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The information provided in this article is general in nature and should not be used as a substitute for professional services and advice. The communication and receipt of this information is not intended to create an attorney-client relationship. Readers should consult with their legal counsel before taking any action on matters covered in this article.
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Copyright 2000, 2001 by Hanft Fride, P.A. All rights reserved. Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802. Phone 218-722-4766; fax 218-529-2401.
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