                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0001

                         Robert W. Weckman, et al., petitioners,
                                     Appellants,

                                            vs.

                                     County of Scott,
                                      Respondent.

                                   Filed July 14, 2014
                                        Affirmed
                                     Stauber, Judge

                               Scott County District Court
                                 File No. 70CV1224632

Timothy J. Keane, Malkerson, Gunn, Martin L.L.P., Minneapolis, Minnesota (for
appellants)

Patrick J. Ciliberto, Scott County Attorney, Susan K. McNellis, Assistant County
Attorney, Shakopee, Minnesota (for respondent)

       Considered and decided by Worke, Presiding Judge; Stauber, Judge; and

Klaphake, Judge.

                        UNPUBLISHED OPINION

STAUBER, Judge

       In this condemnation dispute, appellant-property owners argue that the district

court erred by excluding evidence of (1) limited ingress and egress to the property due to


 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
the construction of a median for the purpose of determining severance damages;

(2) construction-related interference with access to the property for the purpose of

determining severance damages; (3) costs associated with the construction of a berm to

cure construction-related interferences; and (4) appellants’ claimed rental value of the

land during the course of the temporary construction easement for the purpose of

determining damages. We affirm.

                                          FACTS

       The facts of this case are undisputed. Appellants Robert and Cathy Weckman own

an agricultural parcel of land (the “property”) located at the southwest corner of the

intersection of County State Aid Highway (CSAH) 83 and Valley View Road in

Shakopee. In November 2009, respondent Scott County initiated a condemnation

proceeding in relation to a project to improve CSAH 83 (the “project”). The

improvements included expanding CSAH 83 from a two-lane highway to a four-lane

divided highway, as well as adding bituminous trails to both sides of the highway.

       As part of the project, respondent acquired the following property interests from

appellants: (1) a permanent highway easement of approximately 0.06 acres in the

northeast corner of the property; (2) two permanent drainage and utility easements of

approximately 0.07 acres combined; and (3) a temporary construction easement of 2.87

acres covering a strip of land running the entire length of the property, parallel to the

existing right-of-way along CSAH 83. The temporary construction easement was

anticipated to last for approximately 20 months while construction crews occupied the




                                              2
area. And as part of the project, a median was constructed in the center of CSAH 83,

which restricts northbound ingress to and egress from the property.

       In January 2010, three commissioners of appraisal were appointed and ordered to

file an award report with respect to respondent’s taking of appellants’ property interests.

After a lengthy appraisal period, the commissioners filed their report and awarded

appellants $42,000 for the taking. Appellants subsequently appealed the commissioner’s

award to the district court in accordance with Minn. Stat. § 117.145 (2012).

       In anticipation of the matter proceeding to a jury trial, respondent filed a motion in

limine seeking to exclude evidence of diminution of the property’s value due to

(1) change in access; (2) increased traffic; (3) the addition of the bituminous path;

(4) increased noise; (5) diminished privacy; and (6) the cost to cure. Respondent also

sought to exclude evidence related to appellants’ proposed method for calculating the

rental value for respondent’s temporary construction easement. The district court granted

respondent’s motion in its entirety. The parties then reached an agreement regarding

damages. But under the terms of the agreement, appellants reserved the right to appeal

the district court’s evidentiary rulings, leading to this appeal.

                                       DECISION

       Whether to admit or exclude evidence is a matter within the broad discretion of the

district court and the court’s rulings will not be reversed on appeal absent a clear abuse of

that discretion. Bergh & Misson Farms, Inc. v. Great Lakes Transmission Co., 565

N.W.2d 23, 26 (Minn. 1997). A district court abuses its discretion when it bases its




                                               3
conclusions on an erroneous interpretation of the applicable law. Fannie Mae v. Heather

Apartments Ltd. P’ship, 811 N.W.2d 596, 599 (Minn. 2012).

       Both the United States and Minnesota Constitutions require that just compensation

be paid when private property is taken for public use. U.S. Const. amend. V; Minn.

Const. art. I, § 13. The Minnesota Constitution provides broader protection for

landowners than the federal constitution, and “the clear intent of Minnesota law is to fully

compensate its citizens for losses related to property rights incurred because of state

actions.” State by Humphrey v. Strom, 493 N.W.2d 554, 558 (Minn. 1992).

       When only part of a landowner’s property is taken, the landowner is entitled to

compensation for “severance damages,” defined as the diminution in value of the land

remaining. Id. at 558-59. In such cases, severance damages are measured by the “before

and after” rule: “the difference in market value of the land before the taking and the

market value of the remaining land after the taking.” County of Anoka v. Blaine Bldg.

Corp., 566 N.W.2d 331, 334 (Minn. 1997) (citation omitted). In assessing the fair-

market value, “any competent evidence may be considered if it legitimately bears upon

the market value.” Strom, 493 N.W.2d at 559 (quotation omitted). But the damages

“must arise from changes in the land actually taken, and not merely from the impact of

the construction project as a whole.” Blaine Bldg. Corp., 566 N.W.2d at 334.

       Here, appellants challenge the district court’s decision to exclude evidence of:

(1) limited ingress and egress to the property due to the construction of a median for the

purpose of determining severance damages; (2) construction-related interference with

access to the property for the purpose of determining severance damages; (3) costs


                                             4
associated with berm construction to cure construction-related interferences; and

(4) appellants’ claimed rental value of the land during the course of the temporary

construction easement for the purpose of determining damages.

I.     Evidence of limited ingress and egress

       To be constitutionally compensable, a taking or damage of private property need

not occur in a strictly physical sense and can arise out of any interference by the state

with the ownership, possession, enjoyment, or value of private property. Johnson v. City

of Plymouth, 263 N.W.2d 603, 605 (Minn. 1978). Property rights include “a right of

reasonably convenient and suitable access to a public street or highway which abuts their

property.” Id. (quotation omitted). “Like other property rights, the right of reasonable

access can be infringed or ‘taken’ by the state, giving the property owner a constitutional

right to compensation.” Id. at 606.

       However, it is well settled “‘that the dividing of a roadway by median strips or

dividers cannot be made the subject of compensation in condemnation,’ where, as a

result, a property owner loses traffic access in one direction, but retains access in the

other.” Blaine Bldg. Corp., 566 N.W.2d at 334 (quoting State by Mondale v. Gannons,

Inc., 275 Minn. 14, 23, 145 N.W.2d 321, 329 (1966)). The supreme court has explained

the rationale behind this rule as follows: (1) “the construction of highway medians

constitutes an exercise of police power in furtherance of the state’s duty to ensure public

safety on the roadways”; (2) “the restrictions on travel that result from the use of highway

medians affect all members of the traveling public and are not unique to abutting property

owners”; (3) a property owner with access to an abutting highway in at least one direction


                                              5
still retains access to that highway in an opposite direction, albeit through an alternative

route; and (4) courts are “wary of creating a legal environment in which the cost of

regulating traffic and improving roadways becomes prohibitive.” Dale Props., LLC v.

State, 638 N.W.2d 763, 766-67 (Minn. 2002).

       Here, citing the rule reiterated in Blaine Bldg. Corp., the district court concluded

that “all evidence of limited ingress to and egress from the Property to CSAH 83 is non-

compensable and, thus, inadmissible in determining market value of the Property after the

taking.” Appellants concede that “they do not have a right to be compensated for the loss

of traffic access due to median construction to and from the northbound lanes of CSAH

83.” But appellants contend that the district court’s ruling on this issue is “erroneous”

because “[i]n partial taking cases, such as this, the property owner cannot be denied

compensation on the grounds that the access changes or interferences are so-called

‘general damages.’” Appellants argue that, instead, “Minnesota law specifically

provides, in partial taking cases, that any damage an owner sustains by reason of

‘inconvenience’ caused by the ‘taking’ may be considered as an element affecting the

market value of the remaining property.” Appellants argue that because the increased

speed, traffic volumes, and traffic-safety issues on CSAH 83 in the “after” condition

resulted in considerable inconvenience to appellants, their visitors, and the development

potential for a future purchaser of the property, these inconveniences are factors that

should be considered when determining the amount that appellants’ should be

compensated for the taking.




                                              6
       We disagree. As the district court found, it is undisputed that appellants “have

suffered a partial taking” and, therefore are “clearly entitled to damages” for that partial

taking. But the supreme court has repeatedly upheld the long-standing rule that, as a

matter of law, the installation or closure of a median does not constitute a compensable

taking where the property owner maintains direct access in one direction. Dale Props.,

638 N.W.2d at 767; Blaine Bldg. Corp., 566 N.W.2d at 335; Gannons, 275 Minn. at 23,

145 N.W.2d at 329; Hendrickson v. State, 267 Minn. 436, 440-41, 127 N.W.2d 165, 169-

70 (1964). Although appellants may be entitled to further compensation if they can prove

that, as a result of the project, the “increased speed, traffic volumes and traffic safety

issues on CSAH 83” caused appellants to sustain damages, evidence of limited ingress

and egress to the property as a result of the project is not admissible to determine these

damages. In fact, the admission of evidence for non-compensable damages would likely

confuse and mislead the jury by giving rise to an inference that those claims are

compensable. See County of Anoka v. Maego, Inc., 541 N.W.2d 375, 378-79 (Minn.

App. 1996) (evidence of diminished accessibility to property likely to confuse and

mislead jury in action for taking inadmissible to demonstrate fair market value), aff’d sub

nom. Blaine Bldg. Corp., 566 N.W.2d 331. Accordingly, the district court did not abuse

its discretion by granting respondent’s motion to exclude evidence of the limited ingress

and egress to appellants’ property due to the construction of a median.

II.    Evidence of construction-related interference

       Appellants also challenge the district court’s ruling that “[e]vidence of

construction-related interference due to changes made to the existing right-of-way may


                                               7
not be taken into account when determining severance damages.” In addressing the

question of what evidence is relevant and admissible in an eminent-domain proceeding,

the supreme court has stated that “evidence will be admitted concerning any factor which

would affect the price a purchaser willing but not required to buy the property would pay

an owner willing but not required to sell it.” Strom, 493 N.W.2d at 559.

       In Strom, our supreme court held that evidence of construction-related

interferences and loss of visibility caused by changes on the property itself was

admissible, not as a separate item of damages, but as a factor to be considered by the

factfinder in determining the diminution in market value of the remaining property. Id. at

556. In that case, property was taken from the landowner for a four-year temporary

construction easement. Id. at 557. Evidence of construction-related interferences such as

vibration, noise, and dust directly associated with that taking was admissible to show

reduction in fair-market value. Id. at 560. In addition, property was taken to raise the

frontage road 21 feet. Id. at 558. Because this frontage road obstructed the traveling

public’s view of the property from the new highway, loss of visibility evidence was held

to be admissible because the obstruction was caused by changes on the landowner’s

property. Id. at 561.

       Here, respondent argued to the district court that evidence of construction-related

interferences is admissible to show diminution in market value after the taking “only

when the construction activity arises from changes to the land taken from the owner.”

The district court agreed with respondent, recognizing the holding in Strom, but

concluding that “Strom must be interpreted in a much more limited fashion.”


                                             8
Specifically, the district court found that the “Strom court limited its holding to deem

admissible evidence of construction-related interference caused by construction on

property that is actually taken from a landowner.” The district court then distinguished

Strom from two 19th Century Minnesota Supreme Court cases which held that where the

landowner did not suffer a physical taking of his property because the city already owned

a public easement where the road that was being improved was located, the landowner

was not entitled to damages due to the consequential injury to the property’s value. See

Willis v. City of Winona, 59 Minn. 27, 32, 60 N.W. 814, 815 (1894); see also Henderson

v. City of Minneapolis, 32 Minn. 319, 323-24, 20 N.W. 322, 324 (1884). Although the

district court recognized that Willis and Henderson are both over a century old, the court

noted that the rule was more recently reaffirmed by the supreme court in Blaine Bldg.

Corp., which held that landowners are entitled to severance damages in partial takings

cases, but such damages “must arise from the changes in the land actually taken, and not

merely from the impact from the construction project as a whole.” 566 N.W.2d at 334.

Thus, the district court held that because respondent’s “improvements to CSAH 83 in this

case were contained, not on the land taken from [appellants], but instead within the pre-

existing right-of-way, . . . [appellants] are not entitled to present evidence of

construction-related interferences.”

       Appellants argue that the district court misconstrued the holding in Strom because

the court in that case “did not limit its holding regarding construction related

interferences to any changes to or work done on the property that was taken.” Appellants

contend that instead, the supreme court in Strom held that “in a partial taking


                                               9
condemnation case, evidence of construction related interferences is admissible as a

factor to be considered in determining the market value of the remaining property.”

Appellants further argue that the district court’s reliance on Blaine Bldg. is misplaced

because the decision in that case “involved an entirely different issue” that “had nothing

to do with construction related interferences,” and did not “purport to limit the decision in

Strom in any way.” Thus, appellants argue that the exclusion of evidence of

construction-related interference due to changes made to the existing right-of-way in this

case was erroneous.

       We disagree. It is abundantly clear that Strom involved property that was actually

taken from the landowner. See Strom, 493 N.W.2d at 557. And in reaching its

conclusion, the supreme court in Strom relied on cases in which property was actually

taken from the landowner. See id. at 560. For example, in Strom, the supreme court cited

Underwood v. Town Bd. of Empire, 217 Minn. 385, 389, 14 N.W.2d 459, 462 (1944),

which stated that “[i]t is well settled that, where part of the owner’s land is taken,

resulting inconvenience affecting the use and enjoyment of the remainder is proper for

consideration as affecting the market value of the land after the taking.” See id.

(Emphasis added.) The supreme court’s reliance on Underwood supports the position

that in order to be admissible, evidence of construction-related interference must arise

from land actually taken from the landowner. In fact, the Strom decision gives no

indication that the rule it adopted would apply to situations when the construction activity

arises from changes to land not taken from landowner.




                                              10
       Moreover, as the district court recognized, longstanding Minnesota caselaw

indicates that where a landowner did not suffer a physical taking of his property because

the city already owned a public easement where a new road was being installed, the

landowner should not be awarded damages due to the consequential injury to his

property’s value. See Henderson, 32 Minn. at 322-23, 20 N.W. at 323-24; see also

Willis, 59 Minn. at 34-35, 60 N.W. at 816 (stating that “construction and maintenance of

this bridge approach did not impose any additional servitude upon the street, but was a

proper use, hence constitutes no basis for an action in favor of [landowner] for

damages”). Specifically, the supreme court in Henderson held:

              Upon the acquisition by the public, from the original owner of
              the soil, of the right to use the land for the purposes of a
              street, whether that right is acquired by purchase, as by
              condemnation proceedings, or by gift or estoppel, as by
              dedication and acceptance, the right of the public to such use
              of the land as may be consistent with those purposes becomes
              as absolute as is the right of any owner of land to the use of it
              for his own purposes. Thenceforth it is the right of the public,
              subject to any statutory restrictions which may be imposed, to
              have the land prepared and kept in fit condition for use as a
              street; to have it improved and changed from time to time, as
              the public need, and the changing circumstances attending its
              use, shall require. That changes might be required must be
              presumed to have been contemplated when the land was taken
              and devoted to the purposes of a street, as incident to the
              enjoyment of the easement which was then acquired. The
              individual proprietor holds his property subject to the public
              right. He necessarily takes upon himself the risk of the
              possible consequences of such changes in the grade of the
              street as may become necessary for the public convenience
              and safety. Raising the grade of the street, as was done in this
              case, and with the consequences alleged, is not a taking of
              plaintiff’s property for which, under the constitution,
              compensation must be made. The injury complained of is
              merely a consequence of the exercise of a legal right which


                                             11
              the public acquired, and to which plaintiff’s land became
              subject when the land was taken for a street. Whatever taking
              there has been was complete when the easement was first
              acquired.

32 Minn. At 322-23, 20 N.W. at 323. Finally, the supreme court in Blaine Bldg. Corp.,

clearly stated that severance damages “must arise from the changes in the land actually

taken, and not merely from the impact of the construction project as a whole.” 566

N.W.2d at 334.

       Here, the district court only excluded evidence of construction-related interference

due to changes made to the existing right-of-way. In fact, the court specifically noted

that it “will entertain the admissibility of any evidence of construction-related

interferences caused specifically by changes made to the three parcels that were actually

taken from [appellants] by [respondent].” But the district court correctly concluded that

such evidence is not admissible as it pertains to land not actually taken. The district

court’s decision is well-reasoned and supported by applicable caselaw. Accordingly,

appellants are unable to demonstrate that the district court erred by concluding that

appellants are not entitled to present evidence of construction-related interferences

pertaining to changes made to the existing right-of-way.

III.   Evidence of costs associated with berm construction

       In calculating the amount of damages to be alleged as a result of the taking,

appellants’ appraiser conducted a separate analysis for damages he claimed were

necessary to cure impacts of the construction, which consisted of compensating

appellants for a berm to be constructed on their property. Respondent subsequently



                                             12
sought to exclude this evidence of “cost-to-cure” damages. The district court granted the

request, concluding that “[a]s discussed at great lengths [above], evidence of

construction-related interferences caused by improvements made to the pre-existing

right-of-way is inadmissible.” The court also concluded that appellants were “not

entitled to introduce evidence regarding the costs associated with constructing the berm

in order to ‘cure’ those same construction-related interferences.”

       Appellants argue that the district court’s decision is erroneous because “changes to

the road resulting in increased noise and lack of privacy are compensable to the extent

they cause diminution of the value of the remaining property.” To support their claim,

appellants cite City of Chisago City v. Holt (In re Condemnation by City of Chisago

City), in which this court affirmed a $5,000 damage award to the landowners

compensating them for constructing a new gravel road to an existing building on their

land which was required due to a .71 acre taking by the city. 360 N.W.2d 390, 392

(Minn. App. 1985), overruled on other grounds by Moorhead Econ. Dev. Auth. v. Anda,

789 N.W.2d 860 (Minn. 2010).

       We conclude that Holt is distinguishable from this case because the gravel road

constructed by the landowner in Holt was necessitated by the physical taking of his land.

See id. In contrast, the berm is an attempt to mitigate alleged damage caused by

respondent’s improvement of land it already owns, which is non-compensable. See

Henderson, 32 Minn. at 322-23, 20 N.W. at 323-24. Moreover, the measure of damages

is the diminution in value of the land remaining after the taking. Strom, 493 N.W.2d at

558-59. It does not consist of the cost-to-cure noise and privacy damages by the


                                            13
construction of a berm. And, as the district court points out, all of the landowners living

along CSAH 83 have been affected by the project. Appellants, however, “should not be

entitled to collect damages related to ‘interferences’ solely because [respondent]

happened to coincidentally take 0.13 acres of their land for separate purposes relating to

the project.” Accordingly, appellants are unable to demonstrate that the district court

erred by concluding that evidence of costs associated with berm construction to cure

construction-related interferences must be suppressed.

IV.    Evidence of claimed rental value of the temporary easement

       During the project, respondent claimed a temporary construction easement lasting

at least 20 months that covered a strip of land running the entire length of the property,

parallel to the existing right-of-way along CSAH 83. Appellants argue that for purposes

of determining damages, the district court erred by excluding evidence related to

appellants’ claimed rental value of the land during the course of the temporary

construction easement.

       Generally, fair compensation for a temporary possession of a business enterprise is

the reasonable value of the property’s use. See Kimball Laundry Co. v. United States,

338 U.S. 1, 7, 69 S. Ct. 1434, 1438 (1949). And our supreme court has cautioned that

“damages are to be measured by what is taken from the owner and not by the necessities

of the condemnor or the peculiar advantages which accrue to the condemnor by the

taking.” State by Spannaus v. Dangers, 312 N.W.2d 668, 673 (Minn. 1981).

       Here, appellants claimed that because respondent used their property for storing

equipment and for other construction-related purposes, the jury should be allowed to


                                             14
consider rates of comparable outdoor industrial rental and storage properties. Indeed,

respondent’s motion in limine recognized that “there is a temporary construction

easement that clearly entitles [appellants] to some consideration.” But as the district

court found, the land contained within the temporary easement is regulated by zoning

laws which would have prevented appellants from actually using the land as industrial

storage. The fact that the county was allowed to use the temporary easement to

periodically store equipment is a peculiar advantage accrued by respondent which is not

to be considered when determining the measure of damages. See Dangers, 312 N.W.2d

at 673. To allow the jury to consider rates of comparable outdoor rental and storage

properties would greatly inflate the value of the property’s reasonable use because under

the existing zoning laws, appellants could have never actually used the temporary

easement land as an industrial rental property. Therefore, we conclude that the district

court did not err by excluding evidence of damages pertaining to the alleged rental value

of the temporary easement during the course of the construction.

       Affirmed.




                                             15
