author: G. BARRY ANDERSON, Judge.

text:
    In re Application for RELOCATION BENEFITS OF JAMES BROTHERS FURNITURE, INC.
    No. C6-01-1359.
    Court of Appeals of Minnesota.
    April 16, 2002.

      Kirk A. Schnitker, Jon W. Morphew, Schnitker & Associates, P.A., Minneapolis, for relator James Brothers Furniture, Inc.
    Thomas M. Scott, Campbell Knutson, P.A., Eagan, for respondent Robbinsdale Economic Development Authority.
    Considered and decided by HARTEN, Presiding Judge, G. BARRY ANDERSON, Judge, and STONEBURNER, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Respondent terminated relator’s month-to-month lease. Relator applied for relocation benefits under Minn.Stat. §§ 117.50-56 (1998). Respondent denied relator relocation benefits. A hearing officer determined relator was entitled to relocation benefits. After consulting with relator, a relocation-benefits consultant determined that respondent was liable for $12,433 in relocation benefits. At a subsequent hearing, relator contested the $12,433 determination. The hearing officer denied relator’s claims for benefits in excess of $12,433. Respondent subsequently adopted a resolution denying that it was liable for any relocation benefits; but, respondent agreed that if it was hable for any such benefits, those benefits should be limited to $12,433. We reverse and remand.

FACTS

James Brothers Furniture, Inc., (relator) occupied retail property owned by Minneapolis Gold and Silver Corporation (MG & S), in Robbinsdale, Minnesota. It is unclear whether relator and MG & S ever entered into a formal lease agreement. In April 1990, an adjacent McDonald’s restaurant informed respondent Robbinsdale Economic Development Authority (REDA) that it planned to raze its existing building and partially re-locate and re-build its restaurant. REDA contemplated re-development of the immediate area in conjunction with the McDonald’s project. Between April 1990 and September 1992, REDA held several meetings where redevelopment of the immediate area was discussed. REDA contemplated either purchasing or condemning the MG & S property and subsequently entered into a one-year option contract with MG & S that allowed REDA to purchase the property, but that also allowed MG & S to remain on the property for one year rent-free if REDA exercised its option to purchase.

REDA exercised its option to purchase the property and closed on the property in late June 1993. REDA concedes that part of the MG & S property was used to accommodate the McDonald’s project. MG & S and relator, however, continued to occupy the remaining REDA property for one year thereafter under the rent-free occupancy agreement. One year later, the occupancy agreement expired and relator and REDA subsequently entered into a written month-to-month lease agreement that required 90 days’ notice to terminate the lease and vacate the property.

In May 1999, REDA granted development rights to a business to re-develop the area adjacent to and including the remaining REDA property. On May 12, 1999, to prepare for the re-development, REDA gave relator 90-days’ notice to vacate the property.

In response to REDA’s 90-days’ notice, relator initially contemplated moving its business to another retail location, but ultimately decided to liquidate most of its inventory and terminate its operations. Relator contracted with Monk Enterprises, Inc. (Monk), an inventory broker, to liquidate its inventory. Relator sold most of its inventory to Monk, and Monk conducted an inventory-liquidation sale at the property; James Senden, relator’s president, moved the balance of the unsold inventory to the homes of family and friends. In late October 1999, relator vacated the property.

By letters dated November 22 and December 30, 1999, relator requested relocation benefits from REDA. REDA denied relator benefits concluding that relator was not a “displaced person” as defined by Minn.Stat. § 117.50, subd. 3 (1998). Relator requested an administrative appeal and a hearing was held on the eligibility issue. The hearing officer concluded relator was a “displaced person” under the statute and, therefore, concluded that relator was entitled to relocation benefits. The hearing officer also concluded that MG & S did not waive relator’s right to relocation benefits as part of its purchase agreement with REDA.

REDA subsequently hired Conworth, Inc. (Conworth), a relocation-benefits consultant, to assist relator in preparing its relocation claims. After consulting with relator, Conworth determined relator was entitled to $12,433 in relocation benefits. Relator disputed that amount and alleged that it was entitled to additional relocation benefits.

On March 8 and May 15, 2001, another administrative hearing was held focusing on the amount of relator’s claims. By letter dated June 25, 2001, the same hearing officer denied relator’s claims in excess of $12,433. On July 10, 2001, REDA adopted a resolution that accepted the hearing officer’s factual findings made after the first hearing, but rejected the hearing officer’s legal conclusion that relator was a “displaced person” entitled to relocation benefits. In the alternative, REDA concluded' that if relator is a “displaced person,” it is entitled to no more than $12,433 in relocation benefits. This appeal followed.

ISSUES

I. What is the final administrative decision?

II. Is relator a displaced person?

III. Is relator entitled to additional relocation benefits?

IV. Were relator’s procedural due-process rights violated because the hearing officer was the city manager of a neighboring city, which was also represented by respondent’s attorney’s law firm?

ANALYSIS

In 1973, the legislature enacted the Minnesota Uniform Relocation Act (MURA). See generally Minn.Stat. § 117.50-56 (2000). The act intended to make public funds available to reimburse relocation costs incurred by households and businesses displaced by public acquisitions of property where there is no federal financial participation. See Minn.Stat. § 117.52. Under MURA, an “acquiring authority” must

as a cost of acquisition, * * * provide all relocation assistance, services, payments and benefits required by the [federal] Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 * * * and those regulations adopted pursuant thereto.

Id.

I.

Relator argues that the only decision that may be reviewed by this court is the hearing officer’s June 25, 2001 decision concerning the amount of relocation benefits due relator. Relator argues that the hearing officer’s June 5, 2000 decision concerning relator’s eligibility for relocation benefits may not be reviewed because it was a final decision and the time for appeal of that decision has expired. Moreover, relator argues that this court may not review REDA’s July 10, 2001 resolution because the hearing officer’s decision is the only final decision under MURA.

The Code of Federal Regulations discusses the procedure for appealing initial agency decisions denying certain relocation benefits under the federal act:

Any aggrieved person may file a written appeal with the Agency in any case in which the person believes that the Agency has failed to properly consider the person’s application for [relocation] assistance * * *.

49 C.F.R. § 24.10(b) (2000). In addition, an agency or other appointing authority has broad discretion in selecting an official to consider the appeal:

The Agency official conducting the review of the appeal shall be either the head of the Agency or his or her authorized designee. However, the official shall not have been directly involved in the action appealed.

49 C.F.R. § 24.10(h). If the official conducting the appeal does not grant the full relief requested, “the Agency shall advise the person of his or her right to seek judicial review.” 49 C.F.R. § 24.10(g).

A final administrative decision under MURA may only be reviewed by certiorari to this court as provided by Minn.Stat. § 606.01 (2000). Naegele Outdoor Adver., Inc. v. Minneapolis Cmty. Dev. Agency, 551 N.W.2d 235, 237 (Minn.App.1996).

There is no published Minnesota case law directly on point that addresses what constitutes the final administrative decision under MURA. It is unclear, moreover, whether it would be proper for the federal act to serve as the basis for MURA’s appeal procedure in this case.

We conclude that the proper appeal procedure in this case, where the acquiring authority does not have state■wide jurisdiction, must be dictated by common-law and constitutional procedural due-process principles. We also conclude that the hearing officer’s decisions are the final administrative decisions in this case, and the hearing officer’s initial eligibility determination may also be reviewed by this court because relator’s rights were not finally determined until after the second hearing.

In Naegele, the Minneapolis Community Development Agency (MCDA) awarded Naegele certain relocation benefits under MURA; but Naegele disputed the amount of the benefits. Id. at 236. MCDA appointed a hearing officer to conduct Nae-gele’s appeal. Id. The hearing officer decided Naegele was not entitled to the amount of benefits he requested, and “notified the parties of ‘the right - to seek judicial review of th[e] decision.’ ” Id. MCDA did not independently review the hearing officer’s decision. The Naegele court noted, “Both parties concede that the hearing officer’s decision was quasi-judicial,” and concluded that “[j]udicial review of an administrative body’s quasi-judicial decision must be invoked by writ of certio-rari * * Id. (citations omitted). Therefore, the Naegele court implicitly recognized that the hearing officer’s decision was the “administrative body’s quasi-judicial decision” and subsequent review of that decision could only lie with this court and not with the agency. Id. at 236-37.

Therefore, we conclude that a party that is denied relocation benefits by a hearing officer or other appointed agency official on review from an initial agency decision is entitled to judicial review of that hearing officer’s or official’s decision by certiorari to this court, and subsequent independent review within the agency may not occur. Cf. Wax 'N Works v. City of St. Paul, 213 F.3d 1016, 1019-20 (2000) (noting in dictum that “[ujnder the [MURA] * * * the source of relief subsequent to the administrative agency appeal is review by a court”).

The hearing officer’s initial eligibility determination may also be reviewed by this court because “certiorari will not ordinarily lie unless there is a final determination of rights.” State ex. rel. Mosloski v. County of Martin, 248 Minn. 503, 506, 80 N.W.2d 637, 639 (1957); see also Mowry v. Young, 565 N.W.2d 717, 719 (Minn.App.1997), review denied (Minn. Sept. 18, 1997); cf. Overseas Commodities Corp. v. Dockman, 389 N.W.2d 254, 256 (Minn.App.1986) (noting that “certiorari will not ordinarily lie unless the order is a final determination of the parties’ rights, rather than an interlocutory or intermediate order” (citations omitted)). The hearing officer did not finally determine relator’s rights under MURA until the amount of relator’s relocation claims were determined after the second hearing.

We therefore conclude that cer-tiorari appeals under MURA must be construed from the hearing officer’s or other appointed agency official’s final decision, and not from an acquiring authority’s subsequent resolution. We also conclude that relator’s rights under MURA were not finally determined until the hearing officer made her decision concerning the amount of benefits. It therefore follows that the hearing officer’s initial eligibility determination was not a final determination of relator’s rights, and may be reviewed by this court on appeal.

II.

Although REDA concedes that it initially used part of the MG & S property to accommodate the McDonald’s project in the early 1990s, this project did not require .relator to relocate its business. Consequently, REDA argues relator is not a “displaced person” under MURA because REDA’s 1993 acquisition of the MG & S property did not directly result in the termination of relator’s month-to-month lease in 1999. Relator responds that .there is nothing in MURA that suggests a business is not entitled to relocation benefits if a certain amount of time elapses before it is required to vacate property.

Relocation benefits are available for any “displaced person,” which is defined as

any person who moves from real property, or moves personal property from real property, as a result of acquisition undertaken by an acquiring authority or as a result of voluntary rehabilitation carried out by a person pursuant to acquisition or as a consequence thereof.

Minn.Stat. § 117.50, subd. 3. “Acquisitions” include eminent domain actions and acquisitions by negotiation. Minn.Stat. § 117.50, subd. 4. There is no Minnesota case law analyzing this statutory definition. Under the federal act, “displaced person” is defined in both the United States Code and in the Code of Federal Regulations. The federal act’s definition, however, does not mirror the Minn.Stat. § 117.50, subd. 3 definition of “displaced person.”

The statutory provision in question here, Minn.Stat. § 117.50, subd. 3, is not technical and there is no consistent longstanding agency interpretation of the provision. See, e.g., Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996) (suggesting that where a statute is technical in nature, an agency’s longstanding interpretation of the statutory language may be entitled some interpretive weight). Therefore, in considering this question of statutory interpretation and law, we are “not bound by the decision of the agency and need not defer to agency expertise.” St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989) (citations omitted); see also Naegele, 551 N.W.2d at 237 (“Certiorari * * * is certainly appropriate to review questions of law.” (citation omitted)).

The hearing officer, in her June 5, 2000 decision, concluded that relator was a displaced person entitled to receive relocation benefits because REDA acquired the building in which relator was a tenant and REDA was an acquiring authority under Minn.Stat. § 117.50, subd. 5. The hearing officer also concluded that MG & S did not waive relator’s right to relocation benefits in the 1992 purchase agreement with REDA.

It is undisputed that REDA purchased the property through negotiation. See Gilliland v. Port Auth. of St. Paul, 270 N.W.2d 743, 746 (Minn.1978) (stating that “acquisition” under MURA means to get or obtain as one’s own). REDA concedes that it needed part of the MG & S property to accommodate the McDonald’s project and purchased the MG & S property to effect this purpose. The dispositive question, therefore, is whether relator’s displacement six years later for a different project than was planned at the time of acquisition was “a result of acquisition undertaken by an acquiring authority.” Minn.Stat. § 117.50, subd. 3,

We decline to construe MURA to mirror the federal act, which generally requires a displacement to be a direct result of an acquisition for a project or program. See generally Alexander v. HUD, 441 U.S. 39, 51-52, 99 S.Ct. 1572, 1581, 60 L.Ed.2d 28 (1979) (noting that there is “little doubt that Congress’ concern was * * * with displacements caused by the acquisition of property for a Government program or project”); Highway Pavers, Inc. v. Sec. of Interior, 650 F.Supp. 559, 562 (1986) (suggesting “that the relocation or discontinuance of the business [must be] a direct result of the government acquiring the land upon which the business is located” (citation omitted)); Day v. City of Dayton, 604 F.Supp. 191, 197 (S.D.Ohio 1984) (noting that “for someone to be a displaced person, there must be some present nexus between a * * * program or project and the acquisition of that person’s property”).

We conclude that the MURA definition of “displaced person” should be construed to be broader than the federal act’s definition because the MURA definition does not include “direct result” and “project or program” requirements. Cf. Beaty v. Imperial Irrigation Dist., 186 Cal.App.3d 897, 231 Cal.Rptr. 128, 136 (1986) (listing several states, including Minnesota, that have expressly adopted definitions of “displaced person” that are broader than the federal definition).

The record suggests REDA’s acquisition of the MG & S property in 1993 proceeded after several REDA meetings where redevelopment of the immediate area was at least discussed. The record does not suggest that REDA contemplated an immediate re-development of the entire area adjacent to and including the MG & S property in 1993. Although relator remained at the property for nearly six years after the acquisition, with the exception of the first year, relator never had more than a month-to-month lease. REDA contemplated additional redevelopment, and, ultimately terminated relator’s month-to-month lease to proceed with this redevelopment. As California appellate courts have noted when interpreting California’s similar relocation-assistance law:

We cannot accept the [acquiring authority’s] contention that its leasing of the property to [the displaced person] for an interim [six-year] period could change [a displaced person’s entitlement to relocation assistance]. * * * To accept the [acquiring authority’s] interpretation * * * would mean that the vast proportion of tenants who are required to move due to acquisition of real property for public use, would be ineligible for relocation benefits simply because they continued to rent from the [acquiring authority] in the interim.

Superior Strut & Hanger Co. v. Port of Oakland, 72 Cal.App.3d 987, 140 Cal.Rptr. 515, 519 (1977), superseded by statute on other grounds, Melamed v. City of Long Beach, 15 Cal.App.4th 70, 18 Cal.Rptr.2d 729 (1993); cf. Albright v. State, 101 Cal.App.3d 14, 161 Cal.Rptr. 317, 320-21 (1979).

Here, where there was temporary use of the acquiring authority’s property by the relocation-benefits applicant and continuing efforts by the acquiring authority to redevelop the property, we conclude that relator is a displaced person under MURA and is entitled to relocation benefits because the relocation resulted from an acquisition. Nevertheless, we decline to adopt relator’s argument that the passage of time and changed circumstances are irrelevant to a relator’s status as a “displaced person,” and that a “displaced person” has an indefinite, open-ended claim for relocation benefits. We leave for another day circumstances which might demonstrate that a particular relocation did not result from a chapter 117 acquisition.

III.

After the hearing officer’s initial determination that relator was entitled to relocation benefits as a “displaced person,” REDA hired Conworth to assist relator in documenting its claims for relocation benefits. Conworth recommended relator be paid $11,433 for its moving expenses and $1,000 for its replacement-site-search costs. Relator disputed this amount and the hearing to determine the proper amount of relator’s claims was held.

Relator argues the hearing officer’s decision to deny it relocation benefits in excess of $12,433 was arbitrary, oppressive, unreasonable, fraudulent, and decided under an erroneous theory of law. Relator argues the hearing officer’s decision was unreasonable because it disregards certain costs incurred during Monk’s inventory-liquidation sale and costs associated with storing its remaining property not liquidated at the sale. Relator also argues the hearing officer erred by denying relator payment in lieu of its actual cost claim.

On appeal, this court is to determine whether the agency kept within its jurisdiction and then decide whether the decision of the agency was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of the law or without evidence to support it.

In re Application of Wilkins Pontiac, Inc. for Relocation Benefits, 530 N.W.2d 571, 574 (1995) (citing Markwardt v. State Water Res. Bd., 254 N.W.2d 371, 374 (1977)), review denied (Minn. June 23, 1995).

We conclude the hearing officer’s decision to deny relator relocation benefits for hypothetical storage costs was not arbitrary, oppressive, unreasonable, fraudulent, or decided under an erroneous theory of law. But we conclude the hearing officer’s decision to deny relator relocation benefits for possible extraordinary advertising and administrative costs associated with the sale of its inventory at Monk’s inventory-liquidation sale was unreasonable because such costs should be considered as actual costs of selling property not to be relocated. Therefore, we remand for additional proceedings to determine the reasonable amount of these costs, if any, and to determine whether relator is enti-tied to payment in lieu of its actual cost claim.

A.Hypothetical Storage Costs

49 C.F.R. § 24.303(a) (2000) provides that any “displaced person * * * is entitled to payment for such actual moving and related expenses, as the Agency determines to be reasonable and necessary.” Expenses for the “[s]torage of * * * personal property for a period not to exceed 12 months, unless the Agency determines that a longer period is necessary,” are reimbursable under the federal act. 49 C.F.R. § 24.303(a)(4). Nevertheless, a displaced person is not entitled to “[c]osts for storage of personal property on real property already owned or leased by the displaced person.” 49 C.F.R. § 24.305(k) (2000).

The hearing officer concluded relator was not entitled to storage costs for the inventory not sold at Monk’s inventory-liquidation sale because the unliquidated property was stored at the homes of family and friends. Therefore, because relator did not actually incur any costs by storing its property at these locations, the hearing officer concluded that these hypothetical storage costs were not “expenses incurred.”

Relator’s president admitted at the second hearing that he did not incur any actual storage costs by storing the unliqui-dated inventory at his home and at the homes of family and friends. The federal regulations ensure that an acquisition does not impose any direct financial costs on the property owner. Therefore, we conclude that the hearing officer’s decision not to find REDA liable for relator’s hypothetical storage costs was neither arbitrary nor unreasonable.

B.Costs of Selling Inventory Not Relocated

“The reasonable cost incurred in attempting to sell an item that is not to be relocated” is also a reimbursable expense. 49 C.F.R. § 24.303(a)(ll). “A displaced person is not entitled to payment for * * * [l]oss of profits,” however. 49 C.F.R. § 24.305(d).

The hearing officer rejected relator’s claim that it was entitled to reimbursement for certain costs associated with selling its inventory to Monk. The hearing officer found that the only actual cost in selling the inventory to Monk was incurred when relator obtained a going-out-of-business-sale license from the City of Robbinsdale. The hearing officer rejected relator’s argument that it was required to pay a pro rata share of the costs associated with selling the inventory not to be relocated because the contract with Monk obligated Monk to absorb these costs. The hearing officer concluded that 49 C.F.R. § 24.303(a)(ll) ensures assistance to displaced businesses attempting to relocate permanent fixture-type or immovable items, not inventory or office equipment, which can be relocated. The hearing officer also concluded that 49 C.F.R. § 24.305(d) provides that lost profits are not eligible moving expenses.

We first recognize that, contrary to the hearing officer’s conclusion otherwise, there is no authority for the proposition that costs reimbursable under 49 C.F.R. § 24.303(a)(ll) are limited to costs incurred to sell fixtures or other immovable items.

We also recognize that relator, no matter how it attempts to construe its agreement with Monk, sold its property to Monk as part of the inventory-liquidation sale. The hearing officer was technically correct that the only obvious identifiable cost of liquidating relator’s inventory was incurred when relator obtained the going-out-of-business-sale license. Relator is also correct, however, that Monk must have incurred certain advertising and administrative expenses when it conducted the sale. Elementary economic principles dictate that a rational, profit-maximizing business will not usually engage in commerce without the expectation of compensation. But it is unclear, based on the record, whether a share of these advertising and administrative expenses was imputed in the purchase price of the inventory relator sold to Monk (as relator apparently alleges), whether they were later paid by relator when a final accounting of the sale was conducted, or whether relator was liable for any of these expenses at all (as REDA alleges).

Therefore, we conclude that the hearing officer’s decision not to address the actual advertising and administrative expenses possibly incurred by relator was unreasonable and we therefore remand for additional proceedings to determine the reasonable amount, if any, of these actual expenses.

We, however, do not adopt or endorse any particular method of calculating these apparent actual costs, including appellant’s calculation methodology on appeal. Relator’s total claim for expenses exceeds $130,000 and is more than half of what Monk paid relator for the inventory. Moreover, the “sales-management fee” relator allegedly paid Monk to conduct the sale apparently constituted the remaining net profits from the sale, which indisputably included inventory solely owned by Monk and not involved in the present controversy in any way. Thus, it seems that this was not an actual cost incurred by relator because the net profits generated by Monk’s unrelated inventory also contributed to this figure.

Therefore, whether any of these expenses claimed by relator are actually reasonable costs eligible for reimbursement cannot be determined on this record. We must reiterate, however, that on remand the hearing officer’s inquiry should focus on those reasonable costs associated with selling relator’s inventory on short-notice; for example, any extraordinary business expenses relator incurred by liquidating its inventory at the inventory-liquidation sale, above and beyond those expenses relator would have incurred by selling its remaining inventory in the ordinary course of business. See 49 C.F.R. § 24.1 (2000) (stating that the purpose of the federal act is to treat displaced persons “fairly, consistently, and equitably so that such persons will not suffer disproportionate injuries” (emphasis added)).

C. Payment-m-Lim Claim

If an agency determines certain criteria are present,

[a] displaced business may be eligible to choose a fixed payment in lieu of the payments for actual moving and related expenses, and actual reasonable reestablishment expenses * * *. Such fixed payment * * * shall equal the average annual net earnings of the business * * * but not less than $1,000 nor more than $20,000.

49 C.F.R. § 24.306 (2000). A payment in lieu of an actual cost claim, however, is subject to several conditions precedent enumerated in 49 C.F.R. § 24.306(a)(l)-(6), (b).

The hearing officer did not make any findings or conclusions about whether relator was entitled to payment in lieu of its actual-cost claim, although relator did raise the issue through correspondence with REDA and at the second hearing. We cannot determine, based on the record before us, whether relator is entitled to payment in lieu of its actual-cost claim. See Lickteig v. Iowa Dep’t of Transp., 356 N.W.2d 205, 209-10 (Iowa 1984) (noting that a business seeking relocation benefits under Iowa and federal law “must [either] elect between an actual moving expense payment [or] an in lieu payment”). Indeed, it was not until the hearing officer made her second decision regarding the amount of benefits that relator recognized that a payment-in-lieu claim could result in greater compensation for its relocation costs. Therefore, we remand for further proceedings to allow the hearing officer to address relator’s payment-in-lieu claim under 49 C.F.R. § 24.306.

IV.

Relator argues that because the hearing officer was the city manager of a neighboring city and because the law firm representing REDA also represents that city, relator’s procedural due-process rights were violated. Relator argues this conflict created a situation where REDA’s “attorneys were arguing its case to one of its own clients.” Relator objected to the hearing officer at the second hearing and the hearing officer admitted that she believed there was some conflict of interest. The hearing officer noted, however, that she did not interact with REDA’s attorneys in this case; rather, she explained that she worked with other members of REDA’s attorneys’ firm.

49 C.F.R. § 24.10(a) provides that appeals should be reviewed “in accordance with the requirements of applicable law and this part.”

In deciding an appeal, the Agency shall consider all pertinent justification and other material submitted by the person, and all other available information that is needed to ensure a fair and full review of the appeal.

49 C.F.R. § 24.10(f). The only additional requirement under the federal regulations is that the “official [conducting the appeal] shall not have been directly involved in the action appealed.” 49 C.F.R. § 24.10(h).

Constitutional procedural due-process protections protect an individual who is deprived of a property interest.

These protections include reasonable notice, a timely opportunity for a hearing, the right to be represented by counsel, an opportunity to present evidence and argument, the right to an impartial deci-sionmaker, and the right to a reasonable decision based solely on the record.

Humenansky v. Minn. Bd. of Med. Exam’rs, 525 N.W.2d 559, 565 (Minn.App.1994) (citation omitted), review denied (Minn. Feb. 14, 1995); see also CUP Foods, Inc. v. City of Minneapolis, 633 N.W.2d 557, 562-63 (Minn.App.2001), review denied (Minn. Nov. 13, 2001).

Relator’s objection to the hearing officer at the second hearing apparently arose from relator’s belief that the hearing officer was biased against relator because she noted in her initial eligibility determination that “it is * * * apparent to me that [relator] is taldng advantage of a situation in which REDA acted in good faith, but failed to follow the letter of the law.” This statement was made, however, after the hearing officer decided that relator was a displaced person under MURA. The hearing officer’s comments detailed the factual history of the case, including the fact that relator and MG & S were initially treated, perhaps innocently and justifiably, as interchangeable business entities by REDA. A thorough review of the record suggests the hearing officer made every attempt to understand the admittedly confusing sequence of events in this case and attempted to fairly apply equally confusing relocation-benefits law to those facts.

We conclude relator’s procedural due-process rights were not violated by the hearing officer’s conflict of interest (if any) in this case. We direct REDA, however, to appoint a different hearing officer or agency official to conduct the additional proceedings on remand.

As a final matter, we also should note that on several occasions throughout the proceedings and on appeal before this court, relator claimed that REDA was acting in bad faith by denying relator relocation benefits. Not only are these bad-faith allegations unsupported by the record, they border on the absurd. MURA is hardly a model of legislative clarity, and has only been infrequently interpreted by Minnesota appellate courts. REDA’s legal arguments were clearly not frivolous and were not inconsistent with either state or federal law.

DECISION

Under MURA, certiorari appeals to this court must be construed from a hearing officer’s or other agency official’s final decision, and not a subsequent agency action. Relator is a displaced person under MURA because it was displaced as a result of an acquisition by REDA. It was reasonable for the hearing officer to conclude that hypothetical storage costs that were not actually incurred by relator were not reimbursable under MURA. The hearing officer’s decision that advertising and other administrative costs that were possibly incurred by relator as part of the inventory-liquidation sale were not reimbursable was unreasonable. Therefore, remand is appropriate for a different hearing officer to determine the proper amount of these extraordinary costs, if any. Remand proceedings should also address relator’s payment-in-lieu claim.

Reversed and remanded.

      . James Senden was relator’s president and James Willard was apparently an original shareholder. James Willard also owned MG & S. Although the record is not entirely clear, it appears relator and MG & S were initially treated as the same business entity by respondent. The record also suggests relator and MG & S never attempted to demarcate the differences between the two entities until it served their purposes in this matter.

      . "Acquiring authority” is defined as "the state and every public and private body and agency thereof which has the power of eminent domain.” Minn.Stat. § 117.50, subd. 5(a) (2000). The parties do not dispute that REDA is an acquiring authority.

      . "Judicial review” is not defined in the Code of Federal Regulations.

      . Writs of certiorari under Minn.Stat. § 606.01 must be issued within 60 days after the applying party receives notice of the final administrative decision.

      .MURA only references the federal act’s substantive provisions; it does not expressly incorporate the federal act's procedural provisions, including the federal act's appeal procedure. Although MURA references the "regulations adopted pursuant” to the federal act, it only alludes to the regulations when mandating that the acquiring authority provide the substantive "relocation assistance, services, payments and benefits required by the” federal act. Minn.Stat. § 117.52.

      . The Minnesota Administrative Procedure Act (APA) cannot apply because REDA does not have "statewide jurisdiction,” Minn.Stat. § 14.02, subd. 2 (2000); State by Archabal v. County of Hennepin, 495 N.W.2d 416, 420 (Minn.1993), and the parties did not elect to be bound by the APA's appeal procedure. See, e.g., Hard Times Café, Inc. v. City of Minneapolis, 625 N.W.2d 165, 173-74 (Minn.App.2001).

      . By so concluding, we adopt the reasoning found in In re Application of Wax 'N Works for Relocation Benefits v. City of St. Paul, No. C5-98-1602, 1999 WL 185174 (Minn.App. Apr. 6, 1999).

      . For example, the federal act defines “displaced person,” in relevant part, as "any person who moves from real property, or moves his personal property from real property * * * as a direct result of * * * the acquisition of such real property in whole or in part for a program or project." 42 U.S.C. § 4601(6)(A) (1994) (emphases added). The MURA definition of "displaced person” neither requires "direct” causation, nor does it require the acquisition be "for a program or project.” See Minn.Stat. § 117.50, subds. 3, 4.

      . For general background material that discusses the federal act and the interplay between it and its state counterparts, see generally 27 Am.Jur.2d Eminent Domain §§ 942-1046 (1996 & Supp.2001); 7 Fed. Proc. Relocation Assistance and Real-Property Acquisition Proceedings for Federal and Federally Funded Assisted Programs §§ 14:326-439, at 483-544 (1991 & Supp.2001); James Timothy Payne, Annotation, Validity, Construction, and Application of State Relocation Assistance Laws, 49 A.L.R.4th 491 (1986); Catherine R. Lazuran, Annotation, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 33 A.L.R. Fed. 9 (1977).

      . The $11,433 included $8,774 for the actual moving of relator’s general personal property, $1,284 for the disconnection and removal of relator’s alarm system, and $1,375 for the disconnection and removal of relator’s telephone system.

      . Indeed, if we were to accept relator’s argument that it should be reimbursed for all of its claimed expenses associated with the inventory-liquidation sale, relator would reap a total windfall of $374,882.87. This windfall is calculated by adding together the amount Monk paid relator for its inventory ($191,820), relator's share of the net profits from the sale ($48,147.38), relator's claimed pro rata share of the advertising and administrative expenses ($87,461.22), and Monk’s "sales-management fee” ($47,454.27). Relator's total windfall would result in a 95% profit over the inventory's $191,820 cost basis. This would be plainly unreasonable. Also, the amount of overdue rent relator owed REDA at the time of its displacement should be deducted from any damage award. See 49 C.F.R. § 24.207(f) (2000).


source: Caselaw Access Project

license: Public Domain

text:
    James E. EBENHOH, et al., Appellants, v. Frank J. HODGMAN, et al., Respondents.
    No. C4-01-1439.
    Court of Appeals of Minnesota.
    April 23, 2002.

      Steven J. Hovey, Hoversten, Johnson, Beckmann & Hovey, Austin, for appellants.
    Brian L. Weber, Weber Law Offices, Dodge Center, for respondents.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

■ Appellants James and Carma Ebenhoh brought a district court action against respondents claiming ownership of a disputed tract of property through adverse possession and boundary by practical location. The district court concluded that appellants failed to show exclusive, continuous, and hostile use of the disputed tract and therefore did not satisfy the elements of adverse possession. Likewise, the district court concluded that respondents did not sufficiently acquiesce to a fence line and therefore appellants failed to establish a boundary by practical location. We reverse and remand.

FACTS

In 1942, Richard and Alma Tincher owned an 80-acre parcel of farmland in Dodge County. On the same day in 1942, the Tinchers deeded the north 40 acres (Hodgman parcel) to LeRoyal Sanders (Sanders), and the south 40 acres (Eben-hoh parcel) to Edward Ebenhoh, father of appellant James Ebenhoh (Ebenhoh). That same year, Ebenhoh’s father constructed an east-west fence, made of steel and wood posts and barbed wire, dividing the two parcels. It is unclear why Eben-hoh’s father constructed the fence.

Ebenhoh testified that between 1942 and 1955 his father repaired the fence every year to ensure that the cattle that grazed on the Ebenhoh parcel, after the crops were harvested, would not stray. In 1956, the cattle operation ceased. After 1956, however, Ebenhoh and his father continued to farm the Ebenhoh parcel. Eben-hoh testified that they would plant crops close to the fence, probably within a foot of the fence line where possible.

On February 6, 1968, Ebenhoh purchased the Ebenhoh parcel from his father. Between 1969 and 1984, Ebenhoh continued to farm the Ebenhoh parcel in the same manner by planting crops close to the fence line. In 1985, Ebenhoh experienced financial difficulties and leased the Ebenhoh parcel to respondent Frank Hodgman and another individual. Between 1986 and 1996, Ebenhoh leased the Ebenhoh parcel to a canning company, which cultivated asparagus. Since 1996, Ebenhoh’s son-in-law has leased the Eben-hoh parcel, and continues to farm the property.

Respondent Frank Hodgman testified that he purchased the Hodgman parcel from his parents in 1976, who had purchased the property from Sanders in 1955. He also testified that he sold the Hodgman parcel to his brother, respondent Donald Hodgman, in 1993.

A surveyor testified that respondent Donald Hodgman retained him in 1993 to survey the Hodgman parcel (1993 survey). The surveyor testified that the 1942 fence line was located approximately 11 feet north of the “true” boundary line dividing the two parcels. Appellants concede that the 1993 survey correctly locates the true boundary line between the two parcels.

In August 2000, appellants brought a district court action to establish the boundary between the two parcels. Ebenhoh alleged that the 1942 fence line constituted the boundary between the two parcels and that he, his father, and his lessees, have adversely possessed the disputed tract for the 15-year statutory period. Ebenhoh also alleged that the fence line constituted a boundary by practical location.

The district court concluded that although Ebenhoh showed that he openly and actually used the disputed tract for 15 years, he failed to show that his use was exclusive, continuous, or hostile. The court also concluded that Ebenhoh failed to show that the fence line constituted a boundary by practical location. This appeal followed.

ISSUE

Are appellants entitled to the disputed tract through adverse possession?

ANALYSIS

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01; see also Grubb v. State, 433 N.W.2d 915, 917 (Minn.App.1988), review denied (Minn. Feb. 22,1989). In boundary-line cases, the findings of the district court will not be disturbed unless “the evidence taken as a whole furnishes no substantial support for them or where it is manifestly or palpably contrary to the findings.” Engquist v. Wirtjes, 243 Minn. 502, 506, 68 N.W.2d 412, 416 (1955) (quotation omitted). But whether the findings of fact support a district court’s conclusions of law and judgment is a question of law, which we review de novo. Donovan v. Dixon, 261 Minn. 455, 460, 113 N.W.2d 432, 435 (1962) (noting that “it is for this court to determine whether the findings support the conclusions of law and the judgment”).

Before title through adverse possession can be established, there must be clear and convincing evidence of actual, open, hostile, continuous, and exclusive possession by the alleged disseizor for the statutory 15 year period. Engquist, 243 Minn. at 504, 68 N.W.2d at 415; see also Minn.Stat. § 541.02 (2000). Evidence tending to establish adverse possession must be strictly construed, “without resort to any inference or presumption in favor of the disseizor, but with the indulgence of every presumption against him.” Village of Newport v. Taylor, 225 Minn. 299, 303, 30 N.W.2d 588, 591 (1948); see also Stanard v. Urban, 453 N.W.2d 733, 735 (Minn.App.1990) (“The evidence must * * * amount to clear and positive proof before title by adverse possession will be granted.” (citation omitted)), review denied (Minn. June 15,1990).

[T]he erection of a fence by an adjoining landowner has little significance on the issue of adverse possession unless the disseizor uses and occupies the land up to the line established by the fence.

Engquist, 243 Minn. at 505, 68 N.W.2d at 415 (citation omitted).

Appellants argue the district court erred as a matter of law when it concluded that Ebenhoh’s use of the disputed tract was not exclusive, continuous, or hostile. Respondents do not challenge the district court’s conclusions that Ebenhoh’s use of the disputed tract was both actual and open; therefore, our review is limited to whether Ebenhoh’s use of the disputed tract constituted, as a matter of law, exclusive, continuous, and hostile use of the disputed tract for the statutory 15-year period.

We conclude the district court erred as a matter of law when it concluded that Ebenhoh did not establish, by clear and convincing evidence, exclusive, continuous, and hostile use of the disputed tract for 15 years.

A. Exclusivity

The exclusivity requirement is met if the disseizor takes “possession of the land as if it were his own with the intention of using it to the exclusion of others.” Wheeler v. Newman, 394 N.W.2d 620, 623 (Minn.App.1986) (citing Thomas v. Mrkonich, 247 Minn. 481, 484, 78 N.W.2d 386, 388 (1956)).

The district court found that respondents and other parties “continued to use the disputed area for hunting and fishing purposes throughout the years.” Consequently, the district court concluded that Ebenhoh did not exclusively use the disputed tract for the statutory period.

The district court’s factual finding that respondents and other third parties used the disputed tract for hunting and fishing is clearly erroneous. There is nothing in the record that suggests the disputed tract was ever used for hunting and fishing. Respondents agree. Respondents, however, argue that there is other evidence in the record that suggests Ebenhoh’s use of the disputed tract was not exclusive: (1) respondents’ father, Ralph Hodgman, briefly entered the area in 1964 to straighten a creek that meandered near the fence line; and (2) the parties assisted each other with their respective farm operations.

The record, however, is clear that Eben-hoh, his father, and his lessees were the only individuals to use the disputed tract, save for the brief and insubstantial entries onto the property referenced by respondents. Ebenhoh testified that between 1942 and 1956 the fence prevented cattle from leaving the Ebenhoh parcel. It is also undisputed that for 30 years, between 1956 and 1986, Ebenhoh, his father, or his lessees planted crops as close as possible to the fence line. Respondent Frank Hodgman testified that during his ownership of the Hodgman parcel between 1976 and 1998 he never used the property abutting the fence line. It is also undisputed that it was not until 1998, 56 years after the fence was constructed, that respondent Donald Hodgman placed white flags in Ebenhoh’s soybean field marking the 1993 survey line.

There is simply no evidence in the record that the disputed tract was used, save for a few intermittent entries, by anybody but Ebenhoh, his father, and his lessees. Therefore, the district court’s finding of fact that the tract was used for hunting and fishing is clearly erroneous. Moreover, the court’s conclusion of law that Ebenhoh did not exclusively use the disputed tract for the statutory period was also erroneous and appellants have established, as a matter of law, that they exclusively used the disputed tract for the statutory period.

B. Continuity

Adverse possession for any consecutive 15 year period is sufficient to establish continuity of use, Kelley v. Green, 142 Minn. 82, 84, 170 N.W. 922, 923 (1919), and the statutory period must only be completed before bringing an adverse-possession action. Dean v. Goddard, 55 Minn. 290, 293-94, 56 N.W. 1060, 1061 (1893). “The possession of successive occupants, if there is privity between them, may be tacked to make adverse possession for the requisite period.” Fredericksen v. Henke, 167 Minn. 356, 360, 209 N.W. 257, 259 (1926). “The possession of a tenant is, as to third parties, the possession of the landlord.” Kelley, 142 Minn. at 85, 170 N.W. at 923; see also Sherin v. Brackett, 36 Minn. 152, 154, 30 N.W. 551, 552 (1886) (stating that “the tenant’s possession is that of his landlord” (citation omitted)).

The district court found that the canning company used most of the Eben-hoh parcel to cultivate asparagus between 1986 and 1996; the court also found that the canning company did not cultivate asparagus on the disputed tract, but rather used the disputed tract to move its machinery in and out of the field. The district court therefore concluded that the canning company’s use of the disputed tract between 1986 and 1996 constituted occasional, not continuous, use.

The district court’s findings of fact are not clearly erroneous. But the district court erred in its conclusion of law. Even if we were to accept the district court’s highly questionable conclusion that the canning company’s use of the disputed tract to move its machinery in and out of the Ebenhoh parcel did not constitute sufficient continuous use of the disputed tract between 1986 and 1996, the canning company’s use of the disputed tract during that period is irrelevant. Ebenhoh’s father cultivated crops and grazed cattle on the disputed tract between 1942 and 1956. Ebenhoh, his father, and his lessees cultivated crops, up to the fence fine, between 1956 and 1986. By the time the canning company leased the Ebenhoh parcel in 1986, Ebenhoh, his father, and his lessees, had used the disputed tract continuously for 44 years.

Therefore, the district court erred as a matter of law when it concluded that appellants failed to establish continuous use of the disputed tract for the statutory period.

C. Hostility

While it is trae that assertion of adverse title need not be always expressly or affirmatively declared, but may be shown by circumstances, proof of inception of hostility must in all cases be clear and unequivocal.

Johnson v. Raddohl, 226 Minn. 343, 345, 32 N.W.2d 860, 861-62 (1948) (citations omitted). The hostility requirement “does not refer to personal animosity or physical overt acts against the record owner of the property.” Ehle v. Prosser, 293 Minn. 183, 190, 197 N.W.2d 458, 462 (1972). To establish hostility of use, the disseizor must “enter and take possession of the lands as if they were his own * * * with the intention of holding for himself to the exclusion of all others.” Thomas, 247 Minn. at 484, 78 N.W.2d at 388 (quotation omitted). Hostility is flexibly determined by examining “the character of the possession and the acts of ownership of the occupant.” Carpenter v. Coles, 75 Minn. 9, 11, 77 N.W. 424, 424 (1898); Fredericksen, 167 Minn. at 359, 209 N.W. at 258 (“Adverse or hostile intent may be inferred from the character of possession.” (citations omitted)).

Nevertheless, this general rule is tempered when a close family relationship exists between the record owner of the property and the alleged disseizor:

[T]he existence of a close family relationship between the claimant of land and the record owner * * * create[s] the inference, if not the presumption, that the original possession by the claimant of the other’s land was permissive and not adverse and that when such original use was thus permissive it would be presumed to continue as permissive, rather than hostile, until the contrary was affirmatively shown.

Norgong v. Whitehead, 225 Minn. 879, 383, 31 N.W.2d 267, 269 (1948) (siblings) (citations omitted); see also Wojahn v. Johnson, 297 N.W.2d 298, 306 (Minn.1980) (siblings).

The district court recognized that it is unclear why Ebenhoh’s father constructed the 1942 fence; therefore, according to the court, any speculation about the purpose of the fence did not constitute clear and convincing evidence that Eben-hoh’s father made a hostile claim to the disputed tract in 1942. The district court found that the Hodgmans and Ebenhohs were part of a close family that regularly socialized together; indeed, it is undisputed that the parties are first cousins who periodically assisted each other with their respective farming operations. Ebenhoh’s father lent his brother-in-law, respondents’ father, money without demanding security. Because of this familial relationship, the district court concluded that the relationship created a presumption that Ebenhoh’s possession of the disputed tract from 1955 until the present was permissive, and not hostile.

The district court’s findings of fact are not clearly erroneous. The district court, however, erred as a matter of law when it concluded that Ebenhoh’s possession of the disputed tract was not hostile.

Even though Sanders and Ebenhoh’s father are deceased, and thus cannot explain why the fence was constructed or whether the use of the disputed tract was originally permissive, that does not mean that Eben-hoh’s father’s undisputed use of the tract to cultivate crops and graze cattle between 1942 and 1956 is not relevant in determining hostility of use. Such logic could lead to an absurd legal rule where undisputed actual, open, continuous, and exclusive use of property for multiple decades could not result in adverse possession of that property because the original use of the property may have been permissive. It is also undisputed that after 1956 Ebenhoh, his father, and his lessees, continued to farm the disputed tract, as close as possible to the fence line, until at least 1998 when Ebenhoh’s son-in-law began to honor the 1998 survey line.

Therefore, Ebenhoh’s use of the disputed tract was hostile, in the sense that Ebenhoh and his father entered the disputed tract and took possession as if the tract was their own since 1942, with the intention of holding the tract to the exclusion of all others. The district court implied this conclusion when it concluded that Ebenhoh’s use of the disputed tract was “open”: “Th[e] fence gave the Hodg-mans notice that the Ebenhohs were claiming [the] land as theirs and were using it in an actual and open manner for farming purposes.” Moreover, because this hostility commenced when Sanders, who was unrelated to Ebenhoh’s father, owned the Hodgman parcel, it should not be presumed that Ebenhoh’s father’s original use of the disputed tract was permissive.

We also note that respondents advance no authority for the hypothetical proposition that a transfer of property to a close family member of an adjoining property owner renders permissive that adjoining property owner’s otherwise hostile use of property. Respondents’ father, their predecessor-in-interest, should have been on notice that Ebenhoh’s father used the disputed tract to cultivate crops and graze his cattle when he purchased the Hodgman parcel from Sanders in 1955. The mere fact that respondents’ father purchased property near a relative neither converted well-established hostile use of the disputed property to non-hostile use, nor does such a purchase toll the statutory period.

Finally, because we conclude that appellants have established, as a matter of law, that they adversely possessed the disputed tract for the 15-year statutory period, we decline to decide whether the fence line constituted a boundary by practical location.

We therefore reverse and remand this case to the district court. We direct the district court to enter judgment in favor of appellants and to enter an order establishing the boundary between the two parcels as the 1942 fence line identified by the 1993 survey.

DECISION

The district court erred, as a matter of law, when it concluded that appellants’ use of the disputed tract was not exclusive, continuous, and hostile. Appellants’ use of the disputed tract was exclusive because Ebenhoh, his father, and his lessees were the only individuals that used the disputed tract save for a few intermittent entries onto the property. Appellants’ use of the disputed tract was continuous because Ebenhoh and his father cultivated crops and grazed cattle on the disputed tract for 44 years before the canning company took possession. Finally, appellants’ use of the disputed tract was hostile because the property was used for the benefit of appellants and appellants’ predecessor-in-interest and to the exclusion of others. Even though Ebenhoh’s father’s use of the disputed tract may have been originally permissive, this uncertainty does not detract from the fact that Ebenhoh, his father, and his lessees openly, actually, exclusively, and continuously used the disputed tract in a hostile manner for 56 years.

Reversed and remanded.

      . Ebenhoh’s son-in-law also testified that between 1982 and 1985, when he worked as a "hired man,” he and Ebenhoh would farm "as close as possible * * * one to three to five feet” from the fence line. He also testified that he would periodically mow along the fence line to keep the weeds down when the canning company occupied the Ebenhoh parcel between 1986 and 1996.

      . It is well-established in Minnesota that a party claiming an easement through prescription may benefit from a rebuttable presumption of hostility if she shows actual, open, continuous, and exclusive use of the easement. This presumption may be rebutted if the servient owner shows that the claiming party’s use was permissive. E.g., Boldt v. Roth, 618 N.W.2d 393, 396 (Minn.2000); Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn.1980); Burns v. Plachecki, 301 Minn. 445, 448, 223 N.W.2d 133, 135-36 (1974); Alstad v. Boyer, 228 Minn. 307, 310, 37 N.W.2d 372, 375 (1949); Dozier v. Krmpotich, 227 Minn. 503, 507, 35 N.W.2d 696, 699 (1949); Stapf v. Wobbrock, 171 Minn. 358, 360, 214 N.W. 49, 50 (1927).
      The supreme court, moreover, has at least implicitly suggested that this presumption applies in adverse-possession cases. Boldt, 618 N.W.2d at 396 ("A prescriptive easement claim involves the same elements of proof as an adverse possession claim, subject to the inherent differences between such claims.”); Rogers v. Moore, 603 N.W.2d 650, 657 (Minn.1999); Alstad, 228 Minn. at 311, 37 N.W.2d at 375 (noting in dictum that a rebuttable presumption of hostility may aid an adverse-possession claimant unless the claimant is merely using the presumption to show actual or continuous use). The supreme court’s suggestion in Alstad is in accord with general adverse-possession law:
      Once it is established that the use is actual, notorious, exclusive, and continuous, a presumption is established that the use was hostile, and it is the burden of the party opposing the prescriptive right to show that the use was permissive.
      16 Richard R. Powell, Powell on Real Property § 91.02, at 91-13 (Patrick J. Rohan ed.1999). Appellants do not contend that they are entitled to a rebuttable presumption of hostility. Therefore, due to the considerable uncertainty in this area of Minnesota adverse-possession law, we decline to apply the presumption in this case.

      . See Lechner v. Adelman, 369 N.W.2d 331, 334 (Minn.App.1985) (" ‘Permission’ denotes the owner's grant of permission in fact, rather than mere acquiescence or failure to assert paramount rights.” (citation omitted)), review denied (Minn. Aug. 29, 1985).

      . Respondents allege that if it is unclear why a fence was constructed or whether the fence was intended as a boundary, "Permission at the inception, therefore, would be presumed.” (citing Weis v. Kozak, 410 N.W.2d 903 (Minn.App.1987)). This statement misconstrues this court’s holding in Weis. In Weis, this court recognized that the parties expressly agreed to leave a fence where it was located even though the parties both understood that it was incorrectly placed and did not constitute the true boundary between the properties. Weis, 410 N.W.2d at 906. Such direct evidence of permission is not present here.


author: MARING, Justice.

text:
    2002 ND 51
    Shari F. WAGAMAN, f/k/a Shari F. Burke, Plaintiff and Appellee, v. Craig T. BURKE, Defendant and Appellant.
    No. 20010260.
    Supreme Court of North Dakota.
    March 15, 2002.
    Todd D. Kranda, Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., for defendant and appellant.
    Donavin L. Grenz, Linton, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Craig Burke appeals from an order denying his motion to change custody and an order denying his motion for reconsideration. We affirm.

I

[¶ 2] On October 15, 1990, a Judgment was entered which granted Shari Waga-man, formerly known as Shari Burke, a divorce from Craig Burke. Under the terms of the Judgment, the primary residence of the parties’ two minor children, Tera Lynn and Cody Craig, was with Wa-gaman. The Judgment also awarded Burke visitation rights with the children. On June 30, 1993, an Amended Judgment was entered after Wagaman moved to Rochester, Minnesota. Under the terms of the Amended Judgment, the primary residence of the children during the school-year would be with Wagaman and Burke would have visitation rights. During the summer months, Burke would have custody of the children and Wagaman would have visitation rights. A Second Amended Judgment was entered on August 22, 1995, after Wagaman moved to Lawrence, Kansas. A Third Amended Judgment was entered on January 20, 1999, which adjusted Burke’s child support obligation.

[¶ 3] On August 23, 1999, Burke filed a motion to hold Wagaman in contempt of court. In support of the motion, Burke alleged Wagaman failed to pay her share of the children’s medical expenses. Burke also alleged Wagaman failed to pay her share of transportation costs related to visitation with the children. In response to Burke’s motion, Wagaman filed a motion to clarify the divorce judgment and requested permission to relocate with the children to Olympia, Washington. A hearing was held on the motions on December 17, 1999. At the hearing, the parties entered into stipulations regarding the children’s medical expenses, insurance expenses, and transportation expenses. Additionally, the parties stipulated that Wagaman would be allowed to relocate with the children to Olympia, Washington, At a hearing on May 9, 2000, the parties entered into additional stipulations concerning Burke’s child support obligations and visitation rights in light of Wagaman’s move to Washington. A Fourth Amended Judgment reflecting these stipulations was enter on November 20, 2000.

[¶ 4] On August 14, 2001, Burke filed a motion to change the custody of Cody Craig and requested an evidentiary hearing on the motion. The trial court denied the motion in an order dated September 20, 2001. The trial court reasoned that, because Burke brought the motion within two years of the date of entry of the Fourth Amended Judgment, section 14-09-06.6(5), N.D.C.C., applied and prohibited the court from modifying the custody of the parties’ children. Burke filed a motion for reconsideration which was denied by the trial court through an Order dated October 3, 2001, and Burke appealed.

II

[¶ 5] On appeal, Burke argues the trial court erred in concluding N.D.C.C. § 14-09-06.6(5) prohibited it from modifying custody because the Fourth Amended Judgment merely addressed visitation disputes between the parties and was, therefore, not an “order establishing custody” within the meaning of N.D.C.C. § 14-09-06.6(5). Section 14-09-06.6(5), N.D.C.C., provides:

The court may not modify a prior custody order within the two-year period following the date of entry of an order establishing custody unless the court finds the modification is necessary to serve the best interest of the child and:
a. The persistent and willful denial or interference with visitation;
b. The child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development; or
c. The primary physical care of the child has changed to the other parent for longer than six months.

Section 14-09-06.6, N.D.C.C., was enacted to provide “ ‘something of a moratorium for the family’ ” during the two-year period following a custody determination. See State ex rel. D.D. v. G.K., 2000 ND 101, ¶ 5, 611 N.W.2d 179 (quoting Hearing on S.B. 2167 Before the Judiciary Committee, 55th N.D. Legis. Sess. (January 21, 1997) (testimony of Sherry Mills Moore, Chair of the Family Law Task Force)). The purpose of this moratorium is to spare children the “painful, disruptive, and destabilizing” effects of repeat custody litigation. See Quarne v. Quarne, 1999 ND 188, ¶ 9, 601 N.W.2d 256.

[¶ 6] The determination of whether the Fourth Amended Judgment in this case is an “order establishing custody” under N.D.C.C. § 14-09-06.6(5) necessarily involves a comparison of the custody arrangement in place prior to the entry of the Fourth Amended Judgment with the custody arrangement set forth by the Fourth Amended Judgment. See Quarne, 1999 ND 188, ¶ 10, 601 N.W.2d 256 (comparing the custody provisions of the original custody decree with the custody provisions of the amended divorce decree to determine if the two-year moratorium of N.D.C.C. § 14-09-06.6(5) applied to a motion to modify custody). Prior to the entry of the Fourth Amended Judgment, the custody arrangement in this case was governed by the Third Amended Judgment which incorporated the terms of the Second Amended Judgment. The Second Amended Judgment provided:

The parties shall have joint legal custody of the parties’ minor children, Tera Lynn and Cody Craig. It is anticipated that the children will make their primary residence during the school months with the plaintiff in Kansas and that the defendant shall have visitation with the children at such times and places as may mutually be agreed upon by the parties.

(Second Amended Judgment dated August 22,1995at ¶ VII B.)

[¶ 7] The Judgment then listed the minimum visitation to which Burke was entitled during the school year. The paragraph after the school-year visitation schedule provided:

During the summer months, which shall be defined as four days after the end of the school term through seven days pri- or to the commencement of the next school term, defendant shall have custody and plaintiff shall have visitation with the children. Plaintiff shall have visitation with the children at such times and places as may mutually be agreed upon by the parties but such visits shall not conflict with the North Dakota State Fair.

(Second Amended Judgment dated August 22,1995at VII B.)

[¶ 8] In regard to joint legal custody, the Second Amended Judgment provided:

It is acknowledged that each party has legal custody of the minor children, Tera Lynn and Cody Craig. Each party is entitled to complete access to all educational, legal and medical records of any kind pertaining to the minor children without the necessity of consent by the other party.

(Second Amended Judgment dated August 22,1995at VII B.)

[¶ 9] None of the provisions of the Second Amended Judgment regarding custody and visitation were modified by the Third Amended Judgment. Therefore, prior to entry of the Fourth Amended Judgment, the parties had joint physical custody of the children, with Wagaman having custody during the school year and Burke having custody during the summer months.

[¶ 10] The pleadings leading up to the entry of the Fourth Amended Judgment reveal the parties’ disagreement about this custody arrangement. In her “Plaintiffs Brief in Support of Return and Counter Motion to Amend and Clarify Judgment” dated September 10, 1999, Wagaman asked the court to “clarify that the Plaintiff is awarded the primary physical care and custody and control of the parties’ two minor children, and that the Court must specify and define what it means by ‘joint legal custody’ and the authority, duty and obligations of each parent thereunder.” In Burke’s “Return to Motion to Amend and Clarify Judgment” dated October 25, 1999, he argues:

Ms. Wagaman also seeks to “clarify” the type of custody awarded to each party, including their duties and obligations, authority and responsibility they have under the present custodial language. The judgment is very clear with respect to the award of joint legal custody. As stated in the judgment, it is anticipated that the children will make their primary residence during the school months with the plaintiff in Rochester, Minnesota, and that defendant shall have visitation with the children at such times and places as is mutually agreed upon by the parties. A visitation schedule is outlined in the judgment. Then, during the summer months, which are defined as four days after the end of school term through seven days prior to commencement of the next school term, defendant shall have custody and plaintiff shall have visitation with the children. This language anticipates a true shared custody situation, and may be more accurately defined as joint legal and physical custody. However, it was the intention of the parties when the stipulation underlying the amended judgment was entered into to provide custody of the children during the school year to Shari and custody during the summer months to Craig. Under the stipulation, Shari is the custodial parent for nine months during the year and Craig is the custodial parent for three months out of the year. Nothing further needs to be clarified.
Shari suggests that the visitation rights and transportation obligation of the defendant need to be amended. The “visitation rights” for the defendant are spelled out in those paragraphs relating to the period of time when Shari Waga-man has visitation. She is however seeking to amend Craig’s right of custody to the children during the summer months. This would require a showing of a significant change of circumstances which would compel the court to award custody during the entire year to Shari. She has clearly failed to meet her burden in this matter and her request must be denied.

(Return to Motion to Amend and Clarify Judgment dated October 25, 1999 (emphasis added).)

[¶ 11] The parties resolved their dispute over the custody arrangement through a stipulation incorporated into the Fourth Amended Judgment. Paragraph 9 of the Fourth Amended Judgment provides:

9. Visitation. The parties shall have joint custody of the parties’ minor children, Tera Lynn and Cody Craig, as set forth in Paragraph VII of the January 20, 1999 Second Amended Judgment but the visitation granted to defendant shall be amended to provide visitation as follows:
Summer visitation. Plaintiff shall have the parties’ children for five full days after school recesses for the summer and for a full two weeks, or fourteen days, before school is to reconvene. Between these time frames, the defendant shall have the parties’ children for summer visitation.

(Fourth Amended Judgment dated November 20, 2000.) As is apparent from the pleadings, this portion of the Fourth Amended Judgment not only modified the parties’ visitation schedule, but also, their custody arrangement. Therefore, the Fourth Amended Judgment was an order establishing custody under N.D.C.C. § 14-09-06.6(5). Cf. Quarne, 1999 ND 188, ¶ 10, 601 N.W.2d 256 (concluding that N.D.C.C. § 14-09-06.6(5) did not apply where “[t]he amended judgment made minor adjustments to the original decree’s visitation provisions but did not involve any issue of or change in the designation of Alexandra’s custodial parent.”). Because Burke did not allege any of the grounds listed under N.D.C.C. § 14-09-06.6(5) as a basis for modification, the trial court did not err in concluding Burke’s motion was barred by the two-year moratorium of N.D.C.C. § 14-09-06.6(5). See N.D.C.C. § 14-09-06.6(5) (listing willful interference with visitation, danger to the child’s health, and a change in primary physical care of the child to the other parent for longer than six months as grounds for modifying custody within the two-year period of an order establishing custody). ■

III

[¶ 12] We, therefore, affirm the orders of the trial court.

[¶ 13] MARY MUEHLEN MARING, WILLIAM A. NEUMANN, DALE V. SANDSTROM, JJ., DONOVAN J. FOUGHTY, D.J., and GERALD W. VANDE WALLE, C.J., concur.

[¶ 14] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.


author: AMUNDSON, Justice.

text:
    2002 SD 35
    Mark JOHNSON and Monica Johnson, Plaintiffs and Appellants, v. MARION TOWNSHIP, Rudy Sturzenbecher, Bruce Haase and Greg Ludens, Defendants and Appellees.
    No. 21854.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2001.
    Decided March 13, 2002.
    Richard A. Engels of Abourezk Law Offices, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    Glenn L. Roth, Olivet, South Dakota, Attorney for defendants and appellees.
    Jay M. Leibel of Ericsson, Ericsson and Leibel, Madison, South Dakota, Amicus Curiae South Dakota Towns and Townships.
   AMUNDSON, Justice.

[¶ 1.] Mark and Monica Johnson (Johnson) requested a declaratory judgment and a permanent injunction preventing the Marion Township (Township) from requiring the removal of trees in the township road right-of-way abutting their property. The trial court denied Johnson’s claim. We affirm.

FACTS

[¶ 2.] The Township Board (Board) passed a resolution in 1993 requiring all landowners to remove objects, such as trees and rocks, from the road right-of-way. A year later, the Board gave landowners five years to complete the removal. Notice of this deadline was posted in the local newspapers.

[¶ 3.] In March of 1999, Johnson moved onto an acreage within the Township. After noticing his neighbors had been removing trees from ditches adjoining their property, Johnson asked neighbors why they were doing so. One neighbor informed Johnson of the Township resolution, so he contacted Connie Schaefer, the Township Clerk, to inquire. The clerk spoke with Johnson and then mailed a notice reminding him to remove all trees within the Township road right-of-way abutting his property by July 1, 2000. Additionally, the notice said that if Johnson failed to take out any trees by the deadline, the Board was going to hire the work done and assess the cost to his landowner taxes. The notice from the Board cited SDCL chapters 31-31, entitled “Weed Removal Along Highways,” and 31-32, entitled “Highway Obstructions and Defects,” as authority for its action.

[¶ 4.] There are two very large, mature cottonwood trees in the right-of-way abutting Johnson’s property. Johnson brought an action requesting a permanent injunction to prevent the removal of these trees and a declaratory judgment on whether SDCL 31-31-2 required removal of the trees.

[¶ 5.] At trial, a Board member, Greg Ludens, testified that the Township sought removal of the trees for a variety of reasons. He argued that the trees must be removed for liability purposes. Ludens stated that liability may be imposed on the Township if people wreck their cars by running into objects if they drive off the road or for injuries caused by falling branches. Additionally, the Township argued that farm equipment could become damaged if it hit the limbs of trees while being moved down the Township road. All of these reasons were used to supplement the rationale of SDCL 31-31-2, which provides for the removal of trees and brush in order to allow the right-of-way to be mowed.

[¶ 6.] Johnson argued that the trees were sturdy and did not have a history of dropping any large branches on the road or creating any type of nuisance. Additionally, he argued that the Township never negotiated with him regarding the removal of the trees, and that he never received a hearing regarding the trees. Johnson also argued that the statutory authority upon which the Township relied for its actions was created to permit mowing only, which is still possible because the trees are set back far enough to allow mowing in the ditches.

[¶ 7.] The trial court held that both the east tree and west tree are within the road right-of-way. Additionally, the court held that Marion Township could remove the trees pursuant to SDCL 31-31-2, unless the Township grants an exception to allow the trees to remain undisturbed. Therefore, Johnson’s motion for a permanent injunction and declaratory judgment was denied.

[¶ 8.] Johnson appeals the following issues:

1) Whether SDCL 31-13-2 requires the removal of all trees touching upon the right-of-way of Township roads, or only those trees that inhibit mowing the undergrowth within the right-of-way.
2) Whether Johnson’s trees inhibit the mowing of undergrowth on the right-of-way, making them subject to removal pursuant to SDCL 31-31-2.
3) Whether Marion Township improperly failed to follow the procedure set forth in SDCL 31-32-16, 31-32-17 and 31-32-18, thereby denying Johnson due process.
4) Whether Marion Township exceeded its limited grant of statutory authority and failed to comply with the procedure by issuing a decree that requires all trees be cut down, without giving regard to whether the trees are a nuisance or inhibit mowing the right-of-way.
5) Whether Johnson is entitled to a permanent injunction pursuant to SDCL 21-8-14(1) and (2), barring the Marion Township from cutting down the two trees in question.
6)Whether Johnson is entitled to disbursements pursuant to SDCL 15-17-37 as the prevailing party.

[¶ 9.] We find the critical issue raised for review is issue 5 regarding whether the declaratory relief and injunction should have been granted. Therefore, we address only issue 5.

STANDARD OF REVIEW

[¶ 10.] This Court reviews findings of fact under the “clearly erroneous standard.” S.D. Bd. of Nursing v. Jones, 1997 SD 78, ¶ 7, 566 N.W.2d 142, 145 (citing Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995); Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 660 (S.D.1995)). Under this standard, we will not overturn the trial court’s decision unless we are “firmly and definitely convinced a mistake has been made.” See id. (quoting Jasper, 540 N.W.2d at 401). “Conclusions of law, on the other hand, are reviewed under a de novo standard, giving no deference to the trial court’s conclusion of law.” Id.

DECISION

[¶ 11.] Whether Johnson is entitled to a permanent injunction pursuant to SDCL 21-8-14(1) and (2) barring the Marion Township from cutting down the two trees in question.

[¶ 12.] Importantly, we recently addressed the Township’s obligations to upkeep township roads. In Douville v. Christensen, we held that the Legislature has required townships “act as trustees in guarding section line rights-of-way for free public access.” 2002 SD 33, ¶ 12, 641 N.W.2d 651. Although the Douville case stated that townships do not have “a roving duty to inspect every unimproved and un-vaeated section line[,]” townships, as public right-of-way trustees, must maintain open section lines. See id. at ¶ 13. See also Willoughby v. Grim, 1998 SD 68, ¶ 8, 581 N.W.2d 165, 168 (acknowledging that a board of township supervisors have a duty to construct, repair and maintain all secondary roads in a township). We have also stated that Townships have “a duty to maintain township roads” in order to prevent accidents and ensure the safety of travelers; Fritz v. Howard Township, 1997 SD 122, ¶ 12, 570 N.W.2d 240, 242 (discussing Township’s statutory obligation to “act promptly to prevent accidents and injuries by erecting a guard” over a road defect, like a washout). Thus, the Township certainly has authority to remove the trees in the improved right-of-way abutting Johnson’s property when acting as trustee of the section line road and in performing its duty to maintain this section line in a safe condition.

[¶ 13.] Despite Johnson’s contention that the Township’s actions are unlawful and in excess of its grant of authority, we find ample authority to support the Township’s actions. Townships are given the authority “[t]o pass bylaws or ordinances for the government of such Township and for the protection of the lives and property of its inhabitants and to enforce the same in its corporate name before any magistrate.” See SDCL 8 — 2—1 (4). A Township receives this authority to govern from the South Dakota Legislature. See Van Antwerp v. Dell Rapids Township of Minnehaha County, 59 N.W. 209, 210 (S.D.1894) (stating that Townships receive their powers and duties from legislative enactments). A “township is a political subdivision of state government and like counties and municipalities, its right to act is dependent upon a grant from the state.” Welsh v. Centerville Township, 1999 SD 73, ¶ 10, 595 N.W.2d 622, 625 (quoting Breckweg v. Knochenmus, 81 S.D. 244, 252, 133 N.W.2d 860, 864 (1965)).

[¶ 14.] The above cases make it clear that an express grant of authority from the Legislature is necessary for the Township to act. See Welsh, 1999 SD 73, ¶ 10, 595 N.W.2d at 625-26. Additionally, we interpret the statutes created by the Legislature under their “plain, ordinary and popular meaning.” See id at ¶ 11. The Legislature stated with no ambiguity that the Township can remove all types of objects from the right-of-way. See SDCL 31-31-5. Thus, when the Legislature specifically granted Townships the right to remove materials from a Township road right-of-way under chapter 31-31, it clearly gave Marion Township the right to follow that legislative directive.

[¶ 15.] Finally, despite Johnson’s contention that one of the trees is not entirely within the right-of-way, the trial court held that both trees are in the right-of-way. Under our standard of review, the record supports the trial court’s finding that the trees were, in fact, within the right-of-way. See South Dakota Bd. of Nursing, 1997 SD 78, ¶ 7, 566 N.W.2d at 145 (acknowledging that to overturn a trial court’s finding of fact, the findings must be clearly erroneous). Because the trees were both within the right-of-way, the Township has the authority to remove them.

[¶ 16.] A review of the record demonstrates that Johnson is not entitled to relief on appeal because the trial court did not err by allowing the removal of trees in the Township road right-of-way. Therefore, we affirm.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and GORS, Acting Justice, concur.

      . Later that same month the Board extended the deadline for tree-removal until the end of harvest.

      . One of the trees, referred to as the "east tree,” is wholly in the Township road right-of-way. The two parties disagree as to whether the "west tree” is partially located on Johnson's property. This dispute results from the technique that each party used to measure where the right-of-way begins and ends. The Township measured the Township road right-of-way from the fence line to the north of the road to the line on the south of the road. The total distance between the fence line was 66 feet, the proper width of a road right-of-way under SDCL 31-3-1. Ludens then testified that the 33 feet appeared, by naked eye, to be about in the middle.
      Mark Johnson also measured. He first measured the width of the road as 21 feet. He marked the 11-foot mark on the road, which was the center and measured 33 feet to the north. The trunk of the west tree is about one foot on Johnson's property under Mark’s method. The trial court, however, determined that it did not matter whether the tree was partially or fully in the right-of-way, so long as it was in the right-of-way.