                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A15-0082

                        State of Minnesota, by its Commissioner
                              of Transportation, petitioner,
                                      Respondent,

                                           vs.

                                Robert P. Carlson, et al.,
                                      Appellants,

                        North Shore Federal Credit Union, et al.,
                                 Respondents Below.

                                Filed August 10, 2015
                                      Affirmed
                                    Hudson, Judge

                              Lake County District Court
                               File No. 38-CV-13-147

Lori Swanson, Attorney General, Mathew Ferche, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Dan Biersdorf, Ryan Simatic, E. Kelly Keady, Biersdorf & Associates, P.A.,
Minneapolis, Minnesota (for appellants)

         Considered and decided by Cleary, Chief Judge; Hudson, Judge; and Worke,

Judge.
                         UNPUBLISHED OPINION

HUDSON, Judge

       Appellants challenge the district court’s final partial judgment denying their

motions for declaratory judgment, contending that the state’s failure to record its right-of-

way interest in a trunk highway precludes the state from claiming any interest beyond the

highway itself and its ditches. Because state law at the time of the taking of a permanent

easement on appellants’ land for construction of a trunk highway did not require the state

to record its interest, because appellants had notice of the extent of the easement, and

because the state maintained actual possession of the easement since the original taking

and did not abandon any portion of it, we affirm.

                                          FACTS

       In 1921, the Lake County Board of County Commissioners granted a petition to

establish a road along the north shore of Lake Superior. The road is now designated as

Highway 61, which crosses appellants’ properties. The right-of-way for the road at the

time of the board’s granting of the petition included 100 feet of land along the route of

the road, but the road as constructed does not encompass the entire right-of-way. The

county did not record its easement interest until 2012.

       In February 2013, in connection with Highway 61, respondent Minnesota

Department of Transportation petitioned the district court for an eminent-domain taking

of easements regarding lands owned by appellants Robert and Jeannette Carlson, Mary

Robbins, Rosemary and Thomas Elbert, and Catherine and Donald Woznicki. Robbins

and the Elberts moved the district court for declaratory judgment that the department’s


                                             2
failure to record its interest precluded it from claiming any interest in land “beyond the

actual use of the highway” and that the department’s condemnation of the right-of-way

was an unlawful taking requiring additional compensation.

       After a hearing in August 2014, the district court denied appellants’ motions. It

noted that, in addition to the county board minutes from 1921 designating a 100-foot

right-of-way for what was to become Highway 61, the 1922 and 1923 construction plans

for the highway and the department’s 1939 width order “confirmed the width of the

highway with respect to [appellants’] properties.”

       The district court ruled that, because the relevant statute did not require that a

roadway right-of-way easement be recorded in 1921, the fact that the easement had

remained unrecorded until 2012 did not affect the state’s interest in the easement because

“[u]nrecorded interests, including title taken by eminent domain, are valid under the

common law against subsequent good-faith purchasers for value.” It also ruled that, even

if recording was required to protect the state’s right-of-way easement, appellants were not

good-faith purchasers because they had notice of the existence of the easement by virtue

of the existence of the highway and utility poles installed in 1939.

       On December 22, 2014, the district court amended its order to state that its denial

of appellants’ motions was a final partial judgment under Minn. R. Civ. P. 54.02.

                                     DECISION

       Appellants contend that the district court erred by denying their motions because

the department’s unrecorded easement is limited to the land actually used by the road and

its ditches. “When the material facts are not in dispute, [appellate courts] review the


                                             3
[district] court’s application of the law de novo.” In re Collier, 726 N.W.2d 799, 803

(Minn. 2007).

       Appellants primarily cite Minn. Stat. § 160.05, subd. 1 (2014), to argue that the

department’s interest is limited to “the width of the actual use” of Highway 61. Section

160.05 states the requirements for statutory dedication of a road; namely, that when land

is “used and kept in repair . . . for at least six years continuously as a public highway by a

road authority, it shall be deemed dedicated to the public to the width of actual use.”

Minn. Stat. § 160.05, subd. 1. What is now Highway 61, however, was established by the

act of a county board responding to a petition, it was not deemed to be a road under the

precursor to section 160.05. Compare Minn. Gen. Stat. § 2523 (1913) (authorizing

county boards to establish roads in response to petitions and requiring payment of

damages), with Minn. Gen. Stat. § 2563 (1913) (stating that when land is used and

maintained as a public highway for six years, it shall be “deemed” a road), and Minn.

Gen. Stat. § 2543 (1913) (stating that “no damages shall be assessed” when a town road

is established by dedication); see also Gilbert v. Vill. of White Bear, 107 Minn. 239, 241-

42, 119 N.W. 1063, 1064 (1909) (holding that precursor to section 160.05 “does not

apply to a road which had become an established highway at the time the act took effect”

and where the road “is laid out upon petition by the public authorities, or which has been

dedicated to the public by the execution and filing of a plat”). Section 160.05 is therefore

inapposite here.

       This record conclusively demonstrates that the department’s interest includes a

100-foot right-of-way easement and is not limited to the roadway and its ditches. When


                                              4
the state takes over a county road as a trunk highway, it is “vested with all rights, titles,

easements and appurtenances thereto appertaining.” Minn. Stat. § 161.18 (2014); see

also Larson v. State, 790 N.W.2d 700, 704 (Minn. 2010) (holding that when state holds

an easement because of condemnation, it holds the easement “in its entirety” and the

unused portion is not subject to discharge under condemnation statutes). The county

board records from 1921 document the county’s condemnation and payment of damages1

for a roadway that included a 100-foot right-of-way easement. Appellants’ argument

regarding the extent of the department’s original interest is therefore without merit.

       Appellants alternatively contend that the department’s failure to record its right-of-

way easement renders it void under Minn. Stat. § 507.34 (2014). Section 507.34 requires

that “[e]very conveyance of real estate shall be recorded in the office of the county

recorder of the county where such real estate is situated; and every such conveyance not

so recorded shall be void against any subsequent purchaser in good faith.” See also

Minn. Gen. Stat. § 6844 (1913) (predecessor statute containing essentially identical

language). The department asserts that, under the law in force at the time, the county’s

seizure of land by condemnation was not a “conveyance.” But Minn. Gen. Stat. § 6813

(1913) defines “conveyance” very broadly as “includ[ing] every instrument in writing

whereby any interest in real estate is created, aligned, mortgaged, or assigned, or by

which title thereto may be affected in law or in equity, except wills, leases for a term not


1
  Appellants challenge the assumption that damages were actually paid, speculating that
the payments ordered in the county board’s minutes may never have actually been
disbursed. Apart from this speculation, however, there is no indication in the record that
the amounts authorized to be paid were in fact not paid.

                                             5
exceeding three years, and powers of attorney.” The legislature’s use of broad language

to define conveyances combined with its failure to include condemnation in the

exceptions to the broad definition of conveyances indicates that condemnation does not

fall outside of the definition of conveyance. See State v. Caldwell, 803 N.W.2d 373, 383

(Minn. 2011) (“The doctrine expressio unius est exclusio alterius means that the

expression of one thing is the exclusion of another. Expressio unius generally reflects an

inference that any omissions in a statute are intentional.” (citations omitted)).2 We

therefore conclude that the state’s original condemnation of the land for Highway 61 was

a conveyance.

      The department also responds, however, that any failure to comply with recording

requirements does not render its easement void against appellants because appellants are

not good faith purchasers. A purchaser who has “actual knowledge of facts which would

2
  The department also cites Sanborn v. Van Duyne, 90 Minn. 215, 220, 96 N.W. 41, 42
(1903), and the contemporaneous statutory requirements that records be filed with the
county auditor, see Minn. Gen. Stat. §§ 2521, 2505 (1913), as evidence that acquisition of
land interests by condemnations were not understood as conveyances in 1921. But
Sanborn merely analyzed the differences in rights obtained when an easement was
conveyed by deed versus by condemnation, see 90 Minn. at 220-21, 96 N.W. at 41-42, it
did not hold that condemnation was not a conveyance. And the department cites no
authority supporting its implicit argument that a statutory direction that condemnation
papers related to road approval be filed with the county auditor means that they were
exempt from the requirement that conveyances be recorded.
       The district court also implicitly cited Minn. Stat. § 645.27 (2014) to support its
holding that section 507.34 does not require the state to record its interests in land
obtained through eminent domain. Section 645.27 exempts the state from its laws
“unless named therein, or unless the words of the act are so plain, clear, and
unmistakeable as to leave no doubt as to the intention of the legislature.” But no
precursor statute to section 645.27 appears to have been in force in 1921. See Minn. Gen.
Stat. §§ 9408-9419 (1913) (containing statutes that appear to have been precursors to
what is now chapter 645). And the intent of the legislature in section 6844 appears to
have been to unambiguously require recording of “every” conveyance, without exception.

                                            6
put one on further inquiry” regarding the existence of an easement “is not a bona fide

purchaser entitled to the protection of the recording act.” Claflin v. Commercial State

Bank of Two Harbors, 487 N.W.2d 242, 248 (Minn. App. 1992), review denied (Minn.

Aug. 4, 1992). “Actual possession of real property is notice to all the world of the title

and rights of the person so in possession and also of all facts connected therewith which

reasonable inquiry would have developed.” Id. “The burden is on the party resisting the

prior unrecorded title to prove that he purchased or acquired such title in good faith.”

Miller v. Hennen, 438 N.W.2d 366, 369 (Minn. 1989).

       Appellants imply that the records of the county board were too obscure to be

obtainable through reasonable inquiry and argue that their inquiry notice of the

department’s interest in Highway 61 is therefore limited to the road itself and its ditches.

Appellants cite no authority, however, that county board records regarding the

establishment of a road lie outside the boundaries of materials obtainable through

reasonable inquiry regarding the extent of the county’s easement interest. Furthermore,

indications of the department’s 100-foot right-of-way easement interest were also

obtainable from other sources, including previous litigation involving Highway 61. See,

e.g., Nelson v. Babcock, 188 Minn. 584, 585-86, 248 N.W. 49, 50 (1933) (“The right of

way acquired was 100 feet wide.”). We therefore conclude that the department’s interest

in the full 100-foot right-of-way easement is not void with regard to appellants under

Minn. Stat. § 507.34.3


3
 We are mindful of the difficulties that situations like this might pose for title examiners.
When the state fails to record its land interests acquired prior to contemporary recording

                                             7
       Appellants also contend that, even if the department had a 100-foot right-of-way

easement notwithstanding its failure to record it, it abandoned the portions of that

easement not used by the road and its ditches under the Minnesota Marketable Title Act

(MTA). The MTA mandates that any claim of title that is not recorded within 40 years is

presumed to be abandoned. Minn. Stat. § 541.023, subds. 1, 2, 5 (2014). “Easements are

among the property interests that can be eliminated under the MTA.” Sampair v. Vill. of

Birchwood, 784 N.W.2d 65, 69 (Minn. 2010). The MTA’s presumption of abandonment

does not, however, apply to a party “in possession” of the affected land. Minn. Stat.

§ 541.023, subd. 6 (2014). “Even though easements are not possessory estates, the

possession exception of the MTA may be invoked by easement holders.” Sampair, 784

N.W.2d at 69. “[T]he MTA possession exception requires those seeking its protection to

prove use of an easement sufficient to put a prudent person on notice, giving due regard

to the nature of the easement at issue.” Id. at 67.

       Appellants contend that the only evidence of use was the roadway itself, and that

the portion of the department’s 100-foot easement that lies outside the roadway and its

ditches has therefore been abandoned. This conflates a prompt with a conclusion. Under

the standard articulated in Sampair, the existence of the roadway is a prompt, placing “a

prudent person on notice, giving due regard to the nature of the easement at issue.” 784

requirements, title examiners may find it difficult to locate relevant records after their
examination of records at the county recorder’s office fails to reveal the extent of the
state’s interest. But where, as here, the observed roadway is a major state highway, we
conclude that reasonable inquiry would include additional steps such as inquiring with
the department of transportation and that such inquiry would reveal the full extent of the
state’s interest. We note also that the record does not indicate that appellants undertook
any inquiry beyond the examination of the title records in the county recorder’s office.

                                             8
N.W.2d at 67 (emphasis added). A roadway easement includes its corresponding right-

of-way, not merely the physical features of the road itself.4 See Hrdlicka v. Haberman,

140 Minn. 124, 127-28, 167 N.W. 363, 364-65 (1918) (holding that actual roadway use

of less than width allowed by easement did not constitute abandonment of the unused

portion).

       Abandonment of a public-road easement also requires more than mere nonuse; it

requires a showing of “affirmative and unequivocal acts of the public indicative of an

intent to abandon and inconsistent with the continued existence of the easement or right-

of-way.” Sterling Twp. v. Griffin, 309 Minn. 230, 235-36, 244 N.W.2d 129, 133 (1976).

Appellants also point to no actions by the department (and none appear in the record)

indicating its intention to abandon the unused portions of its right-of-way easement

associated with Highway 61. At most, appellants indicate that the department’s neglect

of vegetation growth constitutes abandonment of the unused portion of the easement. But

they highlight no authority holding that mere neglect of vegetation growth on the unused

portion of a right-of-way is an affirmative expression of intent to abandon the right-of-

way. As the state pointed out at oral argument, the existence of vegetation in the right-of-

way often serves a useful function, and it is not difficult to conceive of the public-safety

benefits of having an area of unused land running alongside a major public highway like


4
 The department argues alternatively that the existence of power poles provided notice of
a wider easement than the roadway itself. Although the existence of power poles would
obviously put a prudent person on notice as to the existence of an easement for transit of
utility equipment, it would not reasonably put such a person on notice as to the existence
or extent of a roadway easement. Accordingly, we do not base our decision on the notice
provided by the utility poles.

                                             9
Highway 61. We therefore conclude that appellants have not shown that the department

affirmatively abandoned any portion of its 100-foot right-of-way easement associated

with appellants’ properties along Highway 61, and we hold that the district court did not

err by denying appellants’ motions.

      Affirmed.




                                           10
