20 N.W.2d 345 | Minn. | 1945
Pursuant to Minn. St. 1941, §
"Any town board shall, on petition of the owner of a tract of land of not less than five acres in area, who has no access thereto except over the lands of others, establish a cartway not more than two rods wide connecting his land with a public road; * * * the amount of damages, if any, to be paid by the petitioner to the town before such cartway is opened,"
relator filed a petition with the town board showing that he owns government lots one, two, and seven in section 23 and that he has no access thereto except over the lands of others and praying that a cartway be established, opened, and constructed extending easterly from one of two termini on the east side of his land across the *510 lands of certain named landowners to a point where the east and west quarter section line of section 24 intersects a town road extending north and south through the middle of that section. One of the termini on the east side of relator's land is at the intersection of the eastern boundary line thereof and the quarter section line, and the other is at a point 340 feet north thereof. The proposed course of the cartway is straight west from the east terminus along the quarter section line for a distance of 1,900 feet and thence either straight west on that line to the quarter section corner or northwest to the point on relator's land 340 feet north thereof. The town board took no action on the petition. After the lapse of more than 30 days relator began this proceeding.
Asserting that it was the mandatory duty of the town board under §
Respondents below (appellants here) contend that the petition and alternative writ are insufficient, for the reason that the acts sought to be compelled are no part of appellants' duties with respect to cartways; that relator in fact has access to a public road and consequently does not come within the provisions of the statute under which he petitioned for the cartway; that mandamus *511 does not lie to compel a town board to establish a cartway, because its duties with respect to that matter are discretionary and not mandatory; and that, even if it were proper to compel the town board to establish the cartway, the court should not command it also to construct and improve it.
The trial judge granted a peremptory writ ofmandamus commanding the town board to establish a cartway between lots two and seven and the township highway, the exact route and location of which was to be determined by the town board in the exercise of its discretion; to construct a reasonably serviceable and durable cartway two rods wide, fit and suitable for use during the entire year; and, although the board was without sufficient funds to pay the cost of establishing and constructing the cartway and relator offered to pay the damages arising from establishing it, that the town board should proceed to establish, open, and construct the cartway at the sole expense of the town, to be paid out of current and future funds.
1. Appellants contend in effect that the facts alleged show that the relief sought is the performance by them of acts which they are not authorized to perform in connection with establishing cartways. This contention is based upon the argument that relator's right, if any, to a cartway is under the cartway statute (§
"* * * where the legislature by special act authorizes or requires a public road or highway to be made or established, and provides no means of paying for the same, or for ascertaining or paying the damages occasioned thereby, or for the property taken, the reasonable presumption is, that it is intended that such damages shall be ascertained, assessed, and paid, and such improvements made, under the provisions of the general laws appertaining to the subject."
In short, the right to have the cartway here petitioned for established is governed by §
2. The alternative writ and the petition therefor are not insufficient because they contain no allegations that the town had sufficient funds available to pay for the road. The availability of funds to pay for the road is important only as showing whether appellants were able to perform the duty sought to be enforced. *513
The act sought to be enforced was the establishment of the cartway. Relator offered to pay the damages incident to establishing the cartway which §
3. The contention that relator is not entitled to the establishment of a cartway under the statute is based upon the claim that the evidence shows as a matter of law that he had access from his land to a public road in three separate ways,viz., across lot one; across section 24 to the town road by prescriptive right; and by a road lying to the west of Schauer Lake formerly used by one Schauer, who was one of relator's predecessors in title. We have examined the evidence and have come to the conclusion that it reasonably sustains the finding of the trial court that relator had no such access. In brief, the evidence shows that lot one is about half an acre in area, that it is separated from lots two and seven by a body of water known as Schauer Lake, which extends into sections 14 on the north and 24 on the east, and that lot one is not used for any purpose, much less in connection with lots two and seven, which are 92 acres in area and constitute relator's farm. While it is true that access may be had to the town road from lot one, this affords no access to the road from lots two and seven, which constitute the bulk of relator's land. In view of the fact that lot one is not used as part of relator's farm and cannot be used as a means of access from his farm to the road because it is separated from the farm by the lake, it cannot be said that relator had access to a public road from his farm. There was some testimony that the lake had dried up and that access could be had across the lake bottom; but the testimony in this respect was in conflict. It showed that there was water in the lake and that it could be used for navigation by rowboat and for fishing. Relator's *514 evidence showed that it was a muddy lake and that it was impracticable to build a road across it.
The evidence showed that Schauer had traveled a road to the west of Schauer Lake to gain access to the town road at a point between sections 13 and 14; but it also showed that Schauer had granted whatever rights he had to the road to one Hauser, who was a witness for appellants.
The evidence showed that relator and his predecessors in title have traveled over a road to the east which connected with the township road. For at least 1,200 feet this road corresponded with the cartway proposed in the petition. While the evidence is in conflict, it amply supports a finding that such travel was under license or permission revocable at will and that the license or permission had been revoked. Under such circumstances, relator was entitled to the cartway. Kroyer v. Board of Supervisors,
4. Mandamus lies to compel the town board to establish the cartway under §
5. Many grounds have been urged for holding that it was error to command appellants to expend funds of the town to improve the cartway, but only one, which we deem decisive here, need be considered, namely, that the expenditure of town funds to improve cartways lies in the discretion of town boards in virtue of statutory provision. Section
Our conclusion is that the petition for the cartway was sufficient; that under the circumstances it was the mandatory duty of the *517 town board to establish the cartway, with discretion only as to determining the route thereof within the rules stated; that it was error to command that the cartway be established at the expense of the town, in view of the provision of the statute imposing on relator the obligation to pay the damages incident to establishing the same and his offer to discharge that obligation; and that it was error, because its power was discretionary in the premises, to command the town board to construct an improved roadway on the cartway when established. The case will be remanded for further proceedings in accordance with this opinion.
Affirmed in part and reversed in part with a remand for further proceedings in accordance with the opinion.