author: HALBROOKS, Judge.

text:
    C and R STACY, LLC, et al., Respondents, v. COUNTY OF CHISAGO, Appellant.
    No. A06-2302.
    Court of Appeals of Minnesota.
    Dec. 11, 2007.

      Barry L. Blomquist, Barry L. Blomquist Law Office, North Branch, MN, for respondents.
    Paul D. Reuvers, Jason J. Kuboushek, Amber S. Lee, Iverson Reuvers, LLC, Bloomington, MN, for appellant.
    Daniel J. Greensweig, St. Michael, MN, for amicus curiae Minnesota Association of Townships.
    Thomas L. Grundhoefer, St. Paul, MN, for amicus curiae League of Minnesota Cities.
    Scott Simmons, St. Paul, MN, for amicus curiae Association of Minnesota Counties.
    Considered and decided by DIETZEN, Presiding Judge; HALBROOKS, Judge; and HARTEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

HALBROOKS, Judge.

This case involves an access to County State Aid Highway 19 (CSAH 19) from respondents’ land, Outlot A. Respondents sought to construct a gas station with commercial access to CSAH 19. Prior to construction, appellant County of Chisago (the county) barricaded respondents’ commercial access. Respondents filed a claim in district court, alleging that the county had no authority to regulate access to CSAH 19 without a duly enacted enabling ordinance. Respondents further argued that the county’s failure to enact an ordinance resulted in a taking of respondents’ property and sought inverse-condemnation proceedings.

The county challenges the district court’s determinations that (1) the county lacks the ability to regulate CSAH 19 outside of the statutory authority provided in Minn.Stat. § 160.18 (2006); (2) Minn.Stat. § 160.18 is not self-executing and requires adoption of an ordinance to regulate public roads; (3) a regulation of road access pursuant to Minn.Stat. § 160.18 is an “official control” as defined by Minn.Stat. § 394.22 (2006); and (4) as an “official control,” appellant’s failure to follow public-notice hearing procedures and failure to adopt an ordinance resulted in a taking of respondents’ property rights without compensation.

Because the county’s police power and the self-executing grant of power from Minn.Stat. § 160.18 give the county the ability to regulate public-road access and because regulation of road access under Minn.Stat. § 160.18 is not an “official control,” we conclude that the county has properly regulated access to CSAH 19 and reverse the district court on these issues. But we conclude that whether such regulation is a taking that in this instance requires compensation is a fact question that must be determined by the district court. We therefore remand on that issue only.

FACTS

A. The Property

Outlot A is part of the larger Sherman Oaks Plat 3, located in the City of Stacy (the city). Outlot A is bordered by Chisa-go County State Aid Highway 19/Stacy Trail (CSAH 19), which runs east and west along Outlot A’s southern edge. Interstate 35 (1-35) runs north and south along the western edge of Outlot A. Sherman Oaks Road runs east and west, parallel to and north of CSAH 19. Sherman Oaks Road ends at the eastern edge of Outlot A. Both CSAH 19 and Sherman Oaks Road provide access to Outlot A.

B. History of Outlot A’s Driveway Accessing CSAH 19

Outlot A was originally part of a larger farm parcel that was severed when its owners, conveyed a portion of the land to the State of Minnesota for construction of 1-35. The deed that conveyed the land to the state also took all right of access to most of the property but stated that the landowner retained a right of access east of 1-35. After construction of 1-35 began, the driveway onto CSAH 19 provided the only access to the Outlot A portion of the original parcel.

In 1986, respondent AMW, Inc. acquired Outlot A. At the time that AMW purchased Outlot A, the driveway to CSAH 19 provided the only access to Outlot A. AMW agreed with the city in the developer’s agreement that Sherman Oaks Road would be constructed as a commercial street and serve as access to Outlot A. The county required that a portion of CSAH 19 be dedicated to the public and otherwise approved the developer’s agreement “without comment.” AMW and the city agreed orally to have the city place barricades on the west end of Sherman Oaks Road during construction, which eliminated the access to Outlot A from Sherman Oaks Road. The remaining point of access from Outlot A to CSAH 19 was the driveway.

In 1991, Bauerly Brothers, Inc., a construction company, leased use of Outlot A from AMW to fulfill a contract with the Minnesota Department of Transportation (MnDOT) for resurfacing 1-35. During this lease, Bauerly Brothers used the driveway access to CSAH 19 to remove fill from Outlot A and for asphalt production on the property. MnDOT also used Outlot A during this resurfacing project as a temporary office and inspection station. In addition, AMW leased space along the west edge of Outlot A to Lamar Companies for two billboard signs visible on 1-35. Lamar Companies has since used the driveway onto CSAH 19 to gain access to those signs on Outlot A.

In 1998, AMW sold a portion of the southwest corner of Outlot A to respondent C & R Properties, Ent., Inc. (C & R). This portion of Outlot A was landlocked without access to CSAH 19 via the driveway used by Bauerly Brothers and Lamar Companies. The sale of this portion of Outlot A was conditioned on AMW applying for and receiving a conditional use permit (CUP). The proposed CUP illustrated the driveway access to CSAH 19. The city approved the proposed CUP and issued the CUP on March 18, 1999.

C.The County Restricts Access to CSAH 19

The county first contacted respondents concerning the driveway access to CSAH 19 in writing in early 1999. Although AMW stated that it had a right of access to CSAH 19, the county advised AMW that it had never approved any driveway access. On February 19, 1999, the county told C & R,

[D]irect access to [CSAH 19] will not be allowed. The North 91.93 feet (as shown on the plat) is in the State of Minnesota Limited Access Right of Way. The remaining 25.84 feet is not adequate road frontage for a commercial access. Minnesota Department of Transportation Access Dimensions must be followed on any State Ad Highway.

The Department of Public Works also notified respondent Mel Aslakson, as part owner of AMW,

“Outlot A” has no direct authorized access to [CSAH 19]. The County asks that this unauthorized driveway be removed. Remove culvert (if one exists) and restore ditch to original cross section. Build a berm or provide alternative to prevent future use of this area. We ask that this work be completed with-in 60 days from date of this letter. Failure to comply with-in 60 days will result in the County completing the required work and billing the accrued expense to you.

C & R subsequently submitted a building permit to the city that included language stating that it was “on proposed street off Co. Rd. 19.” The city issued a building permit on October 25, 1999. In early November 1999, C & R commenced construction on the project that included a street connecting Outlot A to CSAH 19, as shown in the plans submitted to the city. On November 8,1999, the county informed respondents that it would commence legal action to prohibit use of the driveway to CSAH 19. When respondents did not stop construction, the county erected barricades on the driveway, prohibiting access to CSAH 19, but removed the barricades that blocked access via Sherman Oaks Road. Respondents C & R Stacy, LLC; AMW, Inc.; Karl W. Gotfredson and Kelly J. Gotfredson, dba T & C Oil, Inc.; Shari L. Douglas; and C & R Properties Ent., Inc., brought suit in district court in 2004, seeking injunctive relief and damages for unlawful taking without compensation. Ater a bench trial, the district court concluded that the county unlawfully took respondents’ right of access without compensation and awarded damages to respondents. This appeal followed.

ISSUES

1. Does the county have the authority to regulate access to CSAH 19 absent a statutory grant of power?

2. Does the grant of authority to regulate public-road access in Minn.Stat. § 160.18 (2006) require an ordinance to be adopted?

3. Is regulation of public-road access under Minn.Stat. § 160.18 an “official control” as defined by Minn.Stat. § 394.22-.26 (2006)?

4. Did the county unlawfully take respondents’ right of access to CSAH 19 without compensation?

ANALYSIS

I.

The county challenges the district court’s determination that it lacks the ability to regulate access to public roads absent the statutory authority contained in Minn.Stat. § 160.18 (2006). The county contends that it has authority to regulate public-road access pursuant to its police power and that Minn.Stat. § 160.18 is a codification of that police power. This court is not bound by and need not give deference to a district court’s decision on a purely legal issue. Modrow v. JP Food-service, Inc., 656 N.W.2d 389, 393 (Minn.2003). We therefore review the district court’s conclusions on police power and statutory construction de novo. Id.

At the most basic level, the Minnesota Constitution establishes that local-government units possess no inherent powers and are purely creations of the legislature. Minn. Const. art. XII, § 3; Breza v. City of Minnetrista, 725 N.W.2d 106, 110 (Minn.2006). Counties, like municipalities, are subject to these same limitations and have only the powers conferred upon them by the legislature. Altenburg v. Bd. of Supervisors of Pleasant Mound Twp., 615 N.W.2d 874, 880 (Minn.App.2000), review denied (Minn. Nov. 21, 2000).

The state public-highway system is addressed expressly within the Minnesota Constitution. Minn. Const, art. XIV. The constitution mandates construction and maintenance of a public-highway system:

A county state-aid highway system shall be constructed, improved and maintained by the counties as public highways in the manner provided by law. The system shall include streets in municipalities of less than 5,000 population where necessary to provide an integrated and coordinated highway system and may include similar streets in larger municipalities.

Minn. Const, art. XIV, § 3. In examining how appellant may satisfy this constitutional mandate,

it should not be overlooked that it is generally accepted that municipalities [and counties] possess extensive and drastic police powers with respect to the care, supervision, and control of streets. The exercise of such powers by municipalities has been upheld and sustained by the courts in a great variety of situations.

The Alexander Co. v. City of Owatonna, 222 Minn. 312, 324, 24 N.W.2d 244, 251-52 (1946), overruled in part on other grounds by Johnson v. City of Plymouth, 263 N.W.2d 603 (Minn.1978).

This police power is the ability of the state and its political subdivisions to impose restraints on private rights that are necessary for the general welfare. In re 1994 & 1995 Shoreline Improvement Contractor Licenses of Landview Landscaping, Inc., 546 N.W.2d 747, 750 (Minn.App.1996) (citing The Alexander Co., 222 Minn, at 322, 24 N.W.2d at 250), review denied (Minn. June 11, 1996). Use of police power must be within the legitimate concern of the state and not otherwise reserved to the individual. State v. Edwards, 287 Minn. 83, 85, 177 N.W.2d 40, 42 (1970). Furthermore, the method of controlling the private right must be reasonably related to a legitimate government end. Id. “Both the state and its municipalities have a wide discretion in resorting to that [police] power for the purpose of preserving public health, safety, and morals, or abating public nuisances.” State v. The Crabtree Co., 218 Minn. 36, 40, 15 N.W.2d 98, 100 (1944).

Here, the county is attempting to regulate access to CSAH 19 for public-safety purposes. The county denied respondents’ access to CSAH 19 because the driveway access lacks adequate road frontage for commercial access as required by MnDOT Access Dimensions that are found in the MnDOT State Aid Manual. One of MnDOT’s program goals is to “provide users of secondary highways and streets with safe highways and streets.” Minnesota Dep’t of Transp. State Aid Manual 2007, ch. 1, § III. MnDOT has established uniform state standards for access to public roads, and the county’s exercise of its police power conforms to the standards.

The county was exercising its legitimate police power for the purpose of public safety when it required that respondents’ driveway access conform to the MnDOT requirements. Public safety is a legitimate concern of state government and its subdivisions, and road-access regulation that prevents overcrowding or traffic congestion is reasonably related to that concern. We therefore conclude that the county’s exercise of its police power was valid. Accordingly, because we hold that the county’s police power provides it with the authority to regulate CSAH 19, we reverse the district court on this issue.

II.

The county challenges the district court’s determination that because Minn. Stat. § 160.18 is not a self-executing statute, the county must adopt an ordinance in order to regulate access to CSAH 19. The county contends that Minn.Stat. § 160.18 is merely a codification of its police power.

Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). “When interpreting a statute, [this court must] first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citation omitted). Plain meaning is the governing principle in applying all statutory language and draws from the full text of the act or statutory provision. Advantage Capital Mgmt. v. City of Northfield, 664 N.W.2d 421, 425 (Minn.App.2003), review denied (Minn. Sept. 24, 2003).

Minn.Stat. § 160.18, subd. 3, states:

Access for particular uses. The owner or occupant of property abutting upon a public highway, having a right of direct private access thereto, may provide such other or additional means of ingress from and egress to the highway as will facilitate the efficient use of the property for a particular lawful purpose, subject to reasonable regulation by and permit from the road authority as is necessary to prevent interference with the construction, maintenance and safe use of the highway and its appurtenances and the public use thereof.

Section 160.18 provides the county with a statutory basis to regulate access to public roads. It also codifies a right of access for abutting land owners and requires “reasonable regulations and permits” if a road authority seeks to limit that right in order to prevent interference with construction, maintenance and the safe use of those public roads. Minn.Stat. § 160.18.

On its face, section 160.18 does not specify procedural requirements other than “reasonable regulations” and “permits” for protection of construction, safety and maintenance. Id. The plain language of Minn.Stat. § 160.18 does not include the term “ordinance,” nor does it require, on its face, an ordinance to be adopted for road-access regulation to be effective. In contrast, in other statutes, the Minnesota Legislature has explicitly required local governments to adopt ordinances to effectively exercise statutory grants of power. See, e.g., Minn.Stat. § 28A.075(b) (2006) (“A local board of health must adopt an ordinance.”). If the legislature wanted to require the county to adopt an ordinance prior to regulating access onto public roads, it could have done so explicitly, as it did in other statutes. Based on the plain language of the statute, we conclude that the county is not required to adopt an enabling ordinance to regulate public-road access under section 160.18.

Respondents assert that the MnDOT Road Design Manual expressly suggests that the county adopt ordinances to regulate driveways. The district court made a conclusion of law agreeing with respondents’ assertion. But the road design manual only suggests that local governments adopt ordinances. The ordinance introduced by respondents is merely a model ordinance. This model can be used by local governments to create and adopt their own ordinance, should they choose to. As the district court noted, the MnDOT Road Design Manual does not contain any legal standards regulating driveways. See Fishery. County of Rock, 596 N.W.2d 646, 654 (Minn.1999) (stating a county was not required to comply with “guidelines” in a manual for selecting traffic barriers).

While the plain language is clear that an ordinance is not necessary for public-road-access regulations here, it does not determine whether section 160.18 is self-executing. We recently examined the issue of whether a statute was self-executing in the context of a city’s attempt to enforce a dangerous-dog statute. In re Molly, 712 N.W.2d 567 (Minn.App.2006). In Molly, this court concluded that Minn. Stat. § 847.50 (2006), which defines the term “dangerous dog,” does not “establish a procedure by which a dog may be declared dangerous and is, therefore, not self-executing as to such a declaration.” Id. at 569-70. In reaching that conclusion, we quoted a U.S. Supreme Court case stating that a self-executing statute has “ ‘a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced.’” Id. at 570 (quoting Davis v. Burke, 179 U.S. 399, 403, 21 S.Ct. 210, 212, 45 L.Ed. 249 (1900)). Provisions which “merely in-dieate[ ] principles, without laying down rules by means of which those principles may be given the force of law,” are not deemed to be self-executing and require other legislative acts to exercise their authority. Id. (quotation omitted).

Although respondents argue that Minn. Stat. § 160.18 is not self-executing, the present case is clearly distinguishable from Molly. The statute discussed in Molly is a definitional statute that contains no procedure to determine whether a dog fits within its definition of “dangerous dog.” Minn. Stat. § 347.50. Here, as the county correctly argues, section 160.18 on its face describes the procedural requirements for a proper exercise of a road authority’s authority to regulate road access. Minn. Stat § 160.18. Accordingly, we conclude that the district court erred in its conclusion that section 160.18 is not self-executing and reverse on this issue.

III.

The county argues that the district court erred in concluding that regulation of access to CSAH 19 is an “official control” that requires public-hearing procedures before an ordinance can be adopted. Minn.Stat. §§ 394.22, subd. 6, 394.26 (2006). Because we have already concluded that the county’s regulation of access to CSAH 19 does not require adoption of an enabling ordinance, we examine only the district court’s conclusion that regulation under Minn.Stat. § 160.18 is an “official control.”

Minn.Stat. § 394.22, subd. 6, provides: “Official control” means legislatively defined and enacted policies, standards, precise detailed maps, and other criteria, all of which control the physical development of a municipality or a county or any part thereof or any detail thereof, and are the means of translating into ordinances all or any part of the general objectives of the comprehensive plan. Such official controls may include but are not limited to ordinances establishing zoning, subdivision controls, site plan rules, sanitary codes, building codes, housing codes and official maps.

(Emphasis added.) According to Minn. Stat. § 394.22, subd. 6, an “official control” is any policy, standard, map or other criteria which is translated into an ordinance for the purpose of fulfilling the general objectives of a comprehensive plan. It follows that if a regulation is not for the purpose of fulfilling the general objectives of the comprehensive plan, then it cannot be an “official control” as defined in Minn. Stat. § 394.22. We must examine then, whether the county’s regulation of access to a public road implicates the general objectives of a “comprehensive plan.”

The term “comprehensive plan” is not used in section 160.18, nor does it appear in chapter 160 or chapter 163, which deal with county roads. Minn.Stat. §§ 160.001-.93, 163.01-.17 (2006). By not including the term “comprehensive plan,” we can assume that the legislature intended to omit its application from chapter 160. However, even if the omission creates ambiguity, other statutory language makes it clear that the legislature did not intend for public-road access to be part of a comprehensive plan.

“As a matter of statutory construction, we presume that the legislature uses the same words the same way, even in different statutes.” Stansell v. City of Northfield, 618 N.W.2d 814, 819 (Minn.App.2000), review denied (Minn. Jan. 26, 2001). “Comprehensive plan” is referred to numerous times in other Minnesota statutes. See Minn.Stat. §§ 462.3535 (discussing implementation of community-based comprehensive plans); 138.761 (discussing a need to create a comprehensive plan to protect St. Anthony Falls’ historical and architectural resources); 462.111-.398 (discussing housing, redevelopment, planning, and zoning); 394.21-372 (2006) (discussing county planning, development, and zoning). Instead, chapters 160 and 163, use the term “plan” rather than the term “comprehensive plan.” See generally Minn.Stat. §§ 160.001-93, 163.01-.17. These chapters do not define the difference between these terms, if any. Accordingly, we must look to the guidance provided by the legislature to interpret any difference in these two terms.

Where the Minnesota Legislature has included general words, preceded by particular words, they are to be construed as restricted in their meaning by the preceding particular word. Minn.Stat. § 645.08(3) (2006). Therefore, we conclude that the particular term “comprehensive” must modify the more general term “plan” and restrict its meaning. As a result, an “official control” as defined in MinmStat. § 394.22 must involve only those actions where specifically “comprehensive plans” are involved. Because none of the statutes that authorize appellant to regulate road access reference a “comprehensive plan,” but instead reference only the more general term “plan,” we conclude that the public-hearing requirements of an “official control” from section 394.22 and section 394.26 do not apply.

IV.

Finally, the county challenges the district court’s conclusion that by restricting respondents’ access to CSAH 19, the county unlawfully took respondents’ property right of access without compensation. Whether a taking has occurred is a question of law, which we review de novo. Thompson v. City of Red Wing, 455 N.W.2d 512, 516 (Minn.App.1990), review denied (Minn. June 26, 1990).

The Minnesota Constitution states that “[pjrivate property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid and secured.” Minn. Const, art. I, § 13. In Minnesota, landowners seeking to compel inverse condemnation have the burden to prove that a taking has occurred. Vern Reynolds Constr., Inc. v. City of Champlin, 539 N.W.2d 614, 617 (Minn.App.1995), review denied (Minn. Dec. 20, 1995).

A land owner has a compensable property right of access to an abutting public road. Cf. Finke v. State, 521 N.W.2d 371, 375 (Minn.App.1994) (citing Hendrickson v. State, 267 Minn. 436, 442, 127 N.W.2d 165, 170-71 (1964) (noting to the contrary that land owners with property that does not abut a street to which they seek access have no compensable right to access)), review denied (Minn. Oct. 27, 1994). In Minnesota, compensation is limited to the loss of convenient access. Id. at 376. Government regulation of the roadway system that deprives a land owner of “reasonable” or “reasonably convenient and suitable access” constitutes a taking that requires compensation to the land owner. Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978). Because respondents own property that abuts a public road, they are entitled to compensation if they have been deprived of reasonable access.

The Minnesota Supreme Court has addressed the confusion that reasonable-access cases have created. Johnson, 263 N.W.2d at 606.

[I]f a governmental action has been found not to infringe the right of access, such action has been deemed a “reasonable” assertion of the police power and therefore noncompensable. On the other hand, where courts have determined that official action has eliminated a right of access, the action has been characterized as a constitutional “taking.” The result has been the creation of an unfortunate rhetorical device: Reasonable assertions of the police power are not compensable but the “taking” of a reasonable right of access is compensable. There is an obvious difficulty, however, with any attempted application of this statement as a rule of law. The statement itself provides no principled means for distinguishing a due process “taking” from a noncompensable exercise of police powers.

Id. (footnotes omitted). The supreme court has stated that

“when the legislative power attempts to forbid the owner from making a use of his property which is not harmful to the public and does not interfere with the rightful use and enjoyment of their own property by others, it invades property rights secured to the owner by both the state and Federal Constitutions. Only such use of property as may produce injurious consequences, or infringe the lawful rights of others, can be prohibited without violating the constitutional provisions that the owner shall not be deprived of his property without due process of law nor without compensation therefor first paid or secured.”

Id. at 607 (quoting State ex rel. Lachtman v. Houghton, 134 Minn. 226, 230, 158 N.W. 1017, 1019 (1916)).

When there is a legitimate exercise of police power that restricts access to a public road and thereby deprives a land owner of reasonable access, the supreme court has stated that the dissenting opinion in Alexander Co., 222 Minn. 312, 24 N.W.2d 244, is the correct rule of law.

While it is said that the right of access may be regulated by public authority, that does not mean ... that under the guise of regulation the right may be taken away from the owner. The power to regulate the right of access does not include that of taking it.... If there is to be a denial of plaintiffs right of access, it should be the result of a compensated taking under condemnation and not an uncompensated one under the guise of a police regulation.

Johnson, 263 N.W.2d at 608 (quotation omitted).

The Minnesota Supreme Court has determined that when police power is exercised in a way that affects the public road itself (as opposed to access), no compensa-ble loss of a property right occurs. Hen-drickson, 267 Minn, at 441, 127 N.W.2d at 170.

Included in this category [of police power] are the establishment of one-way streets and lanes of traffic; median strips prohibiting or limiting crossovers from one lane of traffic to another; restrictions on U-turns, left and right turns, and parking; and regulations governing the weight, size, and speed of vehicles. No compensable damages are sustained by such restrictions and regulations which govern all motorists, including abutting property owners, once they are on the traveled portion of the thoroughfare.

Id. These exercises of the police power relate solely to the streets, roads, and highways rather than access to them. Id.

Here, respondents’ land abuts CSAH 19, providing a right of access to the highway, and the county seeks to regulate how respondents can access that public road, rather than regulate the road itself. Because the county’s actions affect access and not regulation of the roadway, we conclude that Hendrickson and Johnson establish that the county has taken respondents’ right of access in a manner that requires compensation unless the respondents have other reasonable access onto CSAH 19.

Evaluation of the existence of reasonable access is a question of fact and depends on the unique circumstances of each case, including the characteristics of the property itself. Johnson, 263 N.W.2d. at 607. “If the [fact-finder] decides that the [regulation] substantially impairs [respondents’] right to reasonably convenient and suitable access,” then respondents are entitled to damages. Hendrickson, 267 Minn, at 445-46, 127 N.W.2d at 172-73. But the imposition of even substantial inconvenience has been held to not be a denial of the right of reasonable access. Johnson, 263 N.W.2d at 607.

The record reflects that Sherman Oaks Road connects respondents’ property to CSAH 19. The district court found that the Sherman Oaks Road access to CSAH 19 creates a four-block detour as opposed to direct access via the driveway that the county barricaded. But the district court made no finding regarding the reasonableness of that alternate route. Because this is a factual determination, this court is not the appropriate place for its resolution. Scroggins v. Solchaga, 552 N.W.2d 248, 253 (Minn.App.1996) (citing Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966)).

Accordingly, we remand to the district court, as the factfinder in this bench trial, for the sole purpose of making findings of fact regarding reasonable access to CSAH 19 from Outlot A. If the Sherman Oaks Road access to CSAH 19 is not reasonable, a taking has occurred, and respondents are entitled to compensation. Hendrickson, 267 Minn, at 446, 127 N.W.2d at 172-73. But if the district court finds that the Sherman Oaks route (or any other route) is reasonable access to CSAH 19, no compensation is due to respondents. Id.

If the district court determines that the remaining access is unreasonable, it may consider four factors when evaluating damages: (1) the difference between the market value of the property before and after suitable access has been denied; (2) evidence of lost patronage specifically related to the land itself, but with caution that no damages should be assessed for diversion of traffic, loss of customers, business, goodwill, or profits that are related to intangible variables; (3) the distance to an alternate access point; and (4) the extent to which the alternate route mitigates the damages. Id. at 446-47, 127 N.W.2d at 173. The district court has discretion to reopen the record to receive evidence necessary to accommodate the remand.

Y.

Respondents argue that the district court erred in failing to amend its findings of fact to state that appellant has selectively enforced its road-access standards. A district court’s denial of a post-trial motion for amended findings will not be disturbed by this court absent an abuse of discretion. State by Fort Snelling State Park Ass’n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169, 177-78 (Minn.App.2003), review denied (Minn. Mar. 16, 2004).

The district court did not explicitly deny respondents’ motion, and we cannot assume that the district court erred in not addressing a specific portion of a motion for amended findings. Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn.App.1999) (citing Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949)). To successfully appeal a denial of a motion for amended findings, a party must show that the district court was compelled to make the requested findings and failed to do so. Fort Snelling, 673 N.W.2d at 178. There is not a sufficient basis in this record to conclude that the district court failed to make compelled findings.

Respondents are really challenging the credibility of witnesses, which is properly left to the discretion of the district court. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn.1988). We will not disturb what is the proper exercise of discretion by the district court.

DECISION

Because the county regulated road access from Outlot A to CSAH 19 in a proper exercise of its police power and because Minn.Stat. § 160.18 (2006) is a self-executing statute and does not require adoption of an ordinance to be effective, nor is regulation under section 160.18 an “official control” as defined by Minn.Stat. § 394.22 (2006), the district court erred in concluding that the county lacked the authority to do so outside of Minn.Stat. § 160.18, and we reverse on those issues. But because the matter of compensation to respondents under a takings theory is dependent on a determination of whether the Sherman Oaks Road, or any other access is reasonable, we remand that issue to the district court for factual findings consistent with this opinion.

Reversed and remanded.

      . Although the city approved the proposed building permit "on proposed street off Co. Rd. 19,” the city on its own lacks the authority to regulate access to a county state-aid highway. See Minn.Stat. § 162.02, subd. 1 (2006) (granting counties substantial control over the county state-aid highway system).

      . As the county notes, Minn.Stat. §§ 162.01-.181 and 163.01 — . 17 (2006) provide the authority for the creation of county state-aid highways and county highways. Neither chapters require or mention adoption of an ordinance to regulate these highways.


source: Caselaw Access Project

author: SHUMAKER, Judge.

license: Public Domain

text:
    STATE of Minnesota, petitioner, Appellant, v. Edgar Randolph HUGHES, Jr., Respondent.
    No. A07-37.
    Court of Appeals of Minnesota.
    Dec. 18, 2007.

      Lori Swanson, Attorney General, St. Paul, MN and James C. Baekstrom, Dakota County Attorney, Amy A. Schaffer, Assistant County Attorney, Hastings, MN, for appellant.
    John M. Stuart, State Public Defender, Michael W. Kunkel, Assistant Public Defender, Minneapolis, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; SHUMAKER, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

SHUMAKER, Judge.

The district court granted respondent’s petition for postconviction relief, ruling that, because the amount of restitution he was ordered to pay remained an appeal-able issue at the time Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was decided, he is entitled to the retroactive application of Blakely, even though his conviction had become final and all time for appeal or for a certiorari petition had expired before that decision. Because finality is determined by the date of the entry of the final judgment of conviction, respondent is not entitled to the retroactive application of Blakely, and we reverse.

FACTS

On three occasions in June and July of 2003, respondent Edgar Randolph Hughes, Jr., robbed West St. Paul businesses at gunpoint.

After the state charged him with three counts of aggravated robbery in the first degree, Hughes agreed to a plea bargain by which he would plead guilty to one count; the other two counts would be dismissed; he would pay restitution on all three counts; and he would be sentenced to imprisonment for 240 months under the dangerous-offender statute, MinmStat. § 609.1095, subd. 2 (2002). The prison term was an upward durational departure from the presumptive sentence of 108 months and was based on Hughes’s prior criminal-history score of 21, which included convictions of at least two violent crimes prior to the crime for which he was being sentenced.

In pronouncing the sentence on March 19, 2004, the court indicated, “If there is any restitution, it may be determined by [c]ommunity [corrections.... ” On June 22, 2004, the court ordered Hughes to pay restitution of $634.99.

On June 24, 2004, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Supreme Court applied the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requiring any fact that allows a sentence to be increased beyond the statutory maximum to be decided by a jury. Blakely, 542 U.S. at 301, 124 S.Ct. at 2536. Then the Court defined the “statutory maximum” to be “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant” without any additional findings of fact. Id. at 303, 124 S.Ct. at 2537 (emphasis omitted). Thus, under Blakely, the “statutory maximum” sentence in Minnesota is the presumptive sentence prescribed by the Minnesota Sentencing Guidelines. State v. Shattuck, 704 N.W.2d 131, 141 (Minn.2005).

Hughes filed a petition for postconviction relief on August 11, 2006, contending that he is entitled to the application of the Blakely rule. The state opposed the petition on the ground that Blakely does not apply retroactively to Hughes’s sentence.

Ruling that Hughes still could have directly appealed his sentence as of the date of the Blakely decision, the district court granted the petition. The state brought this appeal.

ISSUE

On March 19, 2004, the district court entered a judgment of criminal conviction and imposed a sentence of imprisonment and restitution, the amount of which was to be determined. The court entered an order determining the amount of restitution on June 22, 2004. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was decided on June 24, 2004. The district court ruled, in response to respondent’s petition for post-conviction relief, that because the restitution issue was appealable as of the date of Blakely, respondent is entitled to the retroactive application of Blakely.

Did the district court err in its ruling?

ANALYSIS

We review decisions of a postcon-viction court for an abuse of discretion. Hale v. State, 566 N.W.2d 923, 926 (Minn.1997). We will sustain the postconviction court’s factual findings if they are supported by sufficient evidence in the record. Cuypers v. State, 711 N.W.2d 100, 103 (Minn.2006). But we review legal issues de novo. Id. “Whether Blakely applies retroactively ... is a purely legal issue which [we] review de novo.” State v. Houston, 702 N.W.2d 268, 270 (Minn.2005). A postconviction court abuses its discretion if it misapplies the law. State v. Babcock, 685 N.W.2d 36, 40 (Minn.App.2004), review denied (Minn. Oct. 19, 2004). There is no dispute that the sentencing court imposed a sentence that exceeded the statutory maximum sentence and that the court did so without submitting any departure fact to a jury. It is precisely this type of judicial sentencing departure that Blakely addresses. But the question is whether Blakely applies retroactively to Hughes’s sentence, as the postconviction court held.

Blakely applies retroactively only to cases pending on direct review at the time the decision was issued, namely, June 24, 2004. State v. Osborne, 715 N.W.2d 436, 441 (Minn.2006). “[A] case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.” O’Meara v. State, 679 N.W.2d 334, 336 (Minn.2004).

The event that triggers the running of the time for appeal or petition for certiora-ri is the entry of a final judgment, which occurs when “there is a judgment of conviction upon the verdict of a jury or the finding of the court, and sentence is imposed or the imposition of sentence is stayed.” Minn. R.Crim. P. 28.02, subd. 2(1). The parties agree that a defendant has 90 days from the entry of final judgment to take a direct appeal. Minn. R.Crim. P. 28.02, subd. 4(3) (regarding procedure for appeals other than sentence appeals); Minn. R.Crim. P. 28.05, subd. 1(1) (regarding appeals from sentences imposed or stayed); Osborne, 715 N.W.2d at 441.

The state argues that final judgment was entered on March 19, 2004, when the court imposed the 240-month prison term and the restitution obligation, even though the amount of restitution had not yet been determined. If the state is correct, the 90-day period for direct appeal or the fifing of a petition for certiorari expired on June 17, 2004, before the release of the Blakely decision. Hughes contends that the judgment was not final until June 22, 2004, the date the restitution amount was ordered, and that the 90-day period runs from that date.

Hughes argues that a criminal sentence is not final until all of its terms are pronounced with specificity, that restitution is itself a criminal sentence, and that the adoption of the state’s position would violate the policy against allowing piecemeal appeals. Furthermore, he argues, he could not have meaningfully appealed his restitution order before he knew what his obligation was.

Neither party has cited any authority that definitively resolves the issue raised in this appeal. The appellant in State v. Losh argued that the finality of a sentence was pivotal to a proper application of the retroactivity rule, but, because of the procedural posture of that case, the supreme court said, “[W]e need not reach the questions of whether ‘finality of the sentence’ (as opposed to ‘finality of the conviction’) is ever the touchstone for determining retroactive effect and whether or not some methods of review of a sentence qualify as ‘direct review.’ ” 721 N.W.2d 886, 894 (Minn.2006)

Hughes is correct that “payment of court-ordered restitution” is part of a criminal “sentence.” Minn.Stat. § 609.10, subd. 1(5) (2004). He is also correct that the adoption of the state’s argument can result in piecemeal appeals. Nevertheless, we reject his assertion that his judgment was not final until the specific amount of restitution was fixed for two interrelated reasons: The overriding principle of finality, which is at the core of retroactivity jurisprudence, coupled with the procedural protection of Minn.Stat. § 611A.045, subd. 3(b) (2004), which allows an offender to challenge a restitution order after the amount is determined, convinces us that Hughes is not entitled to the retroactive application of Blakely.

There is no dispute that, on March 19, 2004, the court entered a final judgment of conviction and sentence of incarceration. The record also shows that the court ordered restitution, to be determined by the community corrections department. Only the specific amount of restitution was left undetermined. Noting the critical importance of finality in criminal justice, the United States Supreme Court explained: “Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect.” Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 1074, 103 L.Ed.2d 334 (1989). Finality of conviction seems to be the touchstone for the application of retroactivity rules, and we so hold. We also note that, in virtually all cases, the judgment of conviction and the sentence are contemporaneous, except for restitution.

Restitution is a sufficiently sui generis issue that it warranted special statutory treatment. “An offender may challenge restitution, but must do so by requesting a hearing within 30 days of receiving written notification of the amount of restitution requested, or within 30 days of sentencing, whichever is later.” Minn.Stat. § 611A.045, subd. 3(b). It is evident that the legislature recognized both that the amount of restitution is not always necessarily known at the time of the entry of a judgment of conviction and the imposition of the rest of the sentence, and that the restitution obligation itself remains inchoate until the specific amount is determined. To guard against the absurd predicament of allowing appeal time to run (from the final judgment of conviction) as to restitution before the amount is known, the legislature provided this special statutory protection.

Thus, we hold that, for purposes of applying retroactivity rules, a criminal case is finally determined when a judgment of conviction has been entered, and that, if restitution is a part of the sentence, the fact that the amount of restitution has not been determined when a judgment of conviction is entered will not prevent that judgment from being deemed final. The district court erred in holding otherwise.

DECISION

For purposes of applying retroactivity rules, a criminal conviction is deemed final when a judgment of conviction is entered even if the precise amount of restitution, which is a part of the sentence, has not been determined as of the date of the entry of that judgment.

Reversed.


author: MARING, Justice.

text:
    2007 ND 197
    STATE of North Dakota, Plaintiff and Appellee, v. Jeffrey SCHMEETS, Defendant and Appellant.
    No. 20060375.
    Supreme Court of North Dakota.
    Dec. 13, 2007.

      Kathleen K. Trosen, State’s Attorney, Fessenden, N.D., for plaintiff and appellee.
    Robert V. Bolinske, Jr., Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Jeffrey Schmeets appeals a district court criminal judgment based on a jury verdict finding him guilty of tampering with a witness. On appeal, he argues there was not sufficient evidence to warrant his conviction. We affirm the district court criminal judgment because the record contains competent evidence which allowed the jury to draw an inference reasonably tending to prove guilt and fairly warranting Schmeets’ conviction.

I

[¶ 2] The undisputed evidence presented at trial revealed that Schmeets’ daughter, who did not live at Schmeets’ home, found items of drug paraphernalia on a prairie trail on his rural property. Schmeets’ daughter brought the items to her mother, who gave them to the Harvey Police Department. Schmeets’ daughter informed law enforcement that she had seen drug-related items in Schmeets’ home.

[¶ 3] A law enforcement officer received the items of drug paraphernalia found by Schmeets’ daughter. The officer obtained a search warrant for Schmeets’ property. The drug paraphernalia and information provided by Schmeets’ daughter served as part of the probable cause in obtaining the search warrant. Officers executed the search warrant and found drug paraphernalia. Schmeets was charged with possession of methamphetamine drug-paraphernalia. The drug charges regarded the items found in Schmeets’ home during the search conducted pursuant to the search warrant. The State’s Attorney decided not to charge Schmeets regarding the items found by his daughter.

[¶ 4] After being charged, Schmeets called and met with his daughter’s boyfriend. He told his daughter’s boyfriend that he wanted the criminal charges dropped. Schmeets asked his daughter’s boyfriend to convince his daughter to change her story regarding her discovery of the drug paraphernalia. Schmeets said he would give his daughter $5,000 to say she found the drug paraphernalia in a ditch.

[¶ 5] Schmeets later waved his daughter into a parking lot outside of the Harvey library. Schmeets sat in his daughter’s car and told her to call the State’s Attorney and tell him that she found the drug paraphernalia in a ditch, not on his property. He also told her to tell the State’s Attorney that she originally said the drug paraphernalia was on Schmeets’ property because she was mad at her father. Schmeets told his daughter that he would have to go to jail if she did not change her story. He gave her the State’s Attorney’s phone number and offered her $5,000 to call ■ the State’s Attorney. Schmeets’ daughter never contacted the State’s Attorney.

[¶ 6] A criminal complaint alleging Schmeets tampered with a witness was filed, and a jury trial was held. The State’s Attorney testified that the information provided by Schmeets’ daughter to the police resulted in a search warrant, the execution of which led to the discovery of the paraphernalia that was the basis of the drug paraphernalia charges against Schmeets. He further testified that he did not intend to call Schmeets’ daughter as a witness to prosecute the drug paraphernalia charges. She was not included on any lists of witnesses filed in that case. The district court dismissed the drug paraphernalia charges against Schmeets because evidence obtained under the search warrant was suppressed.

[¶ 7] In the witness tampering case, Schmeets’ counsel moved for acquittal after the State rested its case and renewed the motion at the close of all evidence. The district court denied the motions. After the jury entered a guilty verdict, a criminal judgment for tampering with a witness was entered against Schmeets. Schmeets appeals, claiming that sufficient evidence was not presented at trial to convict him of tampering with a witness.

II

[¶ 8] When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. State v. Igou, 2005 ND 16, ¶ 5, 691 N.W.2d 213. The defendant bears the burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict. Id. “A conviction rests upon insufficient evidence only when no rational factfinder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor.” Id.

Ill

[¶ 9] Section 12.1-09-01, N.D.C.C., criminalizes tampering with witnesses and informants. It is a class C felony to use “force, threat, deception, or bribery” with “intent to influence another’s testimony in an official proceeding.” N.D.C.C. § 12.1 — 09—01(l)(a). “The gist of the offense is the willfull and corrupt attempt to interfere with and obstruct the administration of justice.” State v. Howe, 247 N.W.2d 647, 653 (N.D.1976).

[¶ 10] In order for a defendant to be convicted of tampering with a witness, the defendant need not have succeeded at his or her attempt to tamper with the witness, the person tampered with need not be subpoenaed as a witness, the defendant need not have absolute knowledge that the person is expected to testify, and an official proceeding need not be pending or about to be instituted. See N.D.C.C. § 12.1-09-01; State v. Howe, 247 N.W.2d at 653.

[¶ 11] An attempt to tamper with a witness need not be successful in order to be punishable under N.D.C.C. § 12.1-09-01. Howe, 247 N.W.2d at 653. The “mere attempt” is punishable because “the damage has been done as soon as the endeavor is made.” Id. As we explained in State v. Howe, private aggression defeats the function of the court when an attempt to tamper with a witness is successful, and, if an attempt is not successful, then “the orderly processes of society have been challenged and an effort made to substitute fear of violence or disgrace for the fairness of due process.” Id.

[¶ 12] Nor does the person tampered with have to be under subpoena as a witness in order for a person to be convicted of tampering with a witness. Id. “All that is necessary is that the person be one who knows or is supposed to know material facts and is expected to testify to them or be called on to testify.” Id. Moreover, “[t]he defendant need not have absolute knowledge that the person is expected to testify; information or a reasonably founded belief will suffice.” Id. The jury determines whether a defendant had information or a reasonably founded belief that the person tampered with was expected to testify. Id. The jury may infer this knowledge or belief from the circumstances of the case. Id.

[¶ 13] Finally, an official proceeding does not have to be pending or about to be instituted in order for a person to be convicted of tampering with a witness or informant. N.D.C.C. § 12.1 — 09—01(3)(c).

IV

[¶ 14] Schmeets argues the evidence presented at trial was insufficient to convict him of tampering with a witness. Schmeets contends that, even if he did do what the trial evidence suggested, his conduct did not meet the requirements to be convicted of tampering with a witness. He also contends that his actions did not rise to the level of culpability required to be convicted of tampering with a witness.

[¶ 15] Schmeets contends he cannot be convicted of tampering with a witness because his daughter, who was not listed as a witness in the drug paraphernalia case, was not a “witness” for purposes of the statute criminalizing tampering with witnesses. He supports this contention with two authorities: Rule 7(g), N.D.R.Crim.P., which provides that a prosecuting attorney is to list the witnesses he plans to call on the indictment or information, and our decision in State v. Manning, 134 N.W.2d 91 (N.D.1965), a case in which we said that the law requires the names of witnesses on whose evidence the information is based be endorsed on the information. See id. at 95. As such, Schmeets asserts any “tampering” with his daughter would not constitute tampering with a witness.

[¶ 16] The State argues that when the evidence is viewed in the light most favorable to the verdict, there is substantial evidence on the charge to support the guilty verdict. The State asserts that Schmeets’ argument that the State should be required to show that a person is listed on an information before there can be a conviction for tampering with a witness is unsupported by the law. The State maintains that Schmeets’ contentions are contrary to this Court’s determination in Howe that the question of whether someone is a “witness” expected to testify or be called on to testify is a fact question for the jury. The State argues that neither statutes nor case law require the prosecution to call a person to testify before that individual is considered a “witness” for purposes of tampering charges.

[¶ 17] The State contends there was substantial evidence to establish that Schmeets attempted to bribe his daughter with the intent to influence her testimony in an official proceeding. Schmeets’ daughter and her former boyfriend testified that Schmeets offered $5,000 to his daughter if she would change her story about where she found drug paraphernalia. A law enforcement agent and the State’s Attorney confirmed that the drug paraphernalia charges were pending at the time Schmeets .asked his daughter to change her story. The State argues that Schmeets’ daughter was a material witness because she was alone when she found the drug paraphernalia and would be expected to be called to testify. The State asserts that Schmeets offered to pay his daughter to change her story only because he had an expectation she would be called to testify in the Sheridan County case.

V

[¶ 18] After reviewing the record to determine if there was competent evidence allowing the jury to draw an inference reasonably tending to prove Schmeets’ guilt and fairly warranting his conviction, we affirm the district court decision. The State correctly asserts that the appeal of a jury verdict on the basis of sufficiency of the evidence is subject only to a limited review by this Court. Schmeets did not meet his burden of showing the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.

[¶ 19] The record reveals that uncontroverted evidence was provided at trial that Schmeets approached both his daughter and her boyfriend in an attempt to bribe her to call the State’s Attorney and change her story regarding where she found the drug paraphernalia her mother gave to the police department. Schmeets argues that his daughter was not a “witness,” but under Howe, the threshold question for determining whether his daughter constitutes a “witness” for purposes of N.D.C.C. § 12.1-09-01 is whether Schmeets had a reasonably founded belief that she would testify. Here Schmeets believed his daughter would give testimony on his behalf. In Howe, we said that the person tampered with need not be under subpoena as a witness in order for someone else to be convicted of tampering with a witness. 247 N.W.2d at 653. Now, we similarly hold that the person tampered with need not be included on a witness list filed in a case in order for an individual to be convicted of tampering with a witness. The jury permissibly inferred from the evidence presented at trial that Schmeets had a reasonably founded belief that his daughter was expected to testify.

VII

[¶ 20] We, therefore, conclude that the evidence presented at trial was sufficient to convict Schmeets of tampering with a witness. We affirm the district court criminal judgment.

[¶ 21] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, DALE V. SANDSTROM, and DANIEL J. CROTHERS, JJ., concur.


author: ZINTER, Justice.

text:
    2007 SD 121
    Ralph William BOYER, Plaintiff and Appellant v. Kathryn DENNIS, Defendant and Appellee.
    No. 24437.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2007.
    Decided Nov. 20, 2007.
    Roland E. Grosshans, Rapid City, for plaintiff and appellant.

      Tina M. Hogue, of Finch, Bettmann, Maks & Hogue, P.C., Rapid City, for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Ralph Boyer appeals the circuit court’s judgment concluding that Boyer’s easement for ingress and egress over Kathryn Dennis’ property was extinguished by nonuse and intent to abandon. We reverse.

[¶ 2.] Boyer and Dennis own adjoining parcels of land. The northern border of Boyer’s property (Lot B) is the southern border of Dennis’ property (Lot L). Boyer purchased Lot B with his wife Angela on May 15, 1982, from Dorothy Storm. Storm acquired the property from her husband Clemens Storm on December 20, 1976. Clemens Storm purchased Lot B from Arthur and Katherine Heligas on March 29,1973.

[¶ 3.J While Arthur and Katherine He-ligas were owners of Lot B, they also were owners of Lot L. During the time they owned both lots, they granted an express easement for ingress and egress over Lot L for the benefit of Lot B. Dennis acquired ownership of Lot L from Arthur Heligas on August 4, 1972. The deed acknowledged the easement. At the time the property was conveyed, a wire fence separated Lots B and L. In 1973, Dennis built her home on Lot L.

[¶ 4.] After Dennis purchased Lot L, Arthur Heligas never utilized the easement for access to Lot B. Instead, Heligas accessed Lot B through two alternative routes: (1) via Canyon Lake Drive, Lilac Lane, and a sixteen foot easement over a lot south of Lot B; or (2) via Lakeview Drive, crossing private property directly south of Lot B (the Alternate Routes).

[¶ 5.] When Clemens Storm purchased Lot B in 1973, Storms sporadically used the easement. The majority of the time they used the Alternate Routes to access Lot B. Dennis had informed Dorothy Storm that Dennis was not in agreement with Storm’s use of the easement for ingress and egress. When Dorothy Storm became title holder of Lot B in 1976, the Storms discontinued all use of the easement.

[¶ 6.] On May 15, 1982, Dorothy Storm sold Lot B to Boyers. Although Boyers purchased the property, Angela’s parents, the Winchesters, occupied the property until the Boyers divorced in 2006. In that same year Ralph Boyer became the sole owner of Lot B, he moved onto the property, and made his first personal attempt to utilize the easement on Lot L for ingress and egress to Lot B. Boyer’s attempt to utilize the easement was the catalyst for the suit, and the Winchester family’s use or nonuse of the easement during their occupancy from 1982 to 2006 was the focus of the trial.

[¶ 7.] The trial court found: (1) that from May 15, 1982 until April 1, 2006, neither Boyer nor the Winchesters used the easement as a means of ingress and egress to Lot B, rather they accessed Lot B via the Alternate Routes; (2) that Winchesters impeded the use of the easement by placing “junk cars” and wood piles at its entry; (3) that Boyer/Winchesters failed to maintain the easement, allowing bushes, shrubs, and lawn to encroach; and (4) that Winchesters had closed and bolted shut the easement’s access gate, essentially destroying the right to use the right-of-way. Although there was evidence of extremely limited vehicle use and some foot and bicycle use during this time, the court concluded that foot and bicycle traffic of a “kid” was not the type of ingress and egress contemplated by the express grant. The court stated, “[t]he fact that some kid walks down the road or rides his bicycle down it, I don’t think that’s the intended use of the easement.” The court also discounted the Winchesters’ vehicular use of the easement, some of which was the result of city construction on the Alternate Routes. The trial court ultimately concluded that Boyer’s easement had been extinguished.

[¶ 8.] Boyer appeals, contesting both the trial court’s findings of fact and conclusion of law. “ ‘We review a trial court’s findings of fact under a clearly erroneous standard.’ Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Graves v. Dennis, 2004 SD 137, ¶ 9, 691 N.W.2d 315, 317 (citation omitted). Conclusions of law are reviewed de novo. Northstream Inv., Inc. v. 1801 Country Store Co., 2007 SD 93, ¶ 8, 739 N.W.2d 44, 47.

[¶ 9.] An easement may be extinguished by “the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.” SDCL 43-13-12. Intent to abandon the easement is also required.

Under this statute, “there must be an affirmative act of abandonment on the part of the owner of the easement to extinguish the easement. Mere nonuse of an easement, created by grant, is insufficient to satisfy this requirement.” Hofmeister v. Sparks, 2003 SD 35, ¶ 13, 660 N.W.2d 637, 641 (citing Clark v. Redlich, 147 Cal.App.2d 500, 305 P.2d 239, 244 (1957)). However, a substituted access may serve as evidence of abandonment, but that by itself is not dispos-itive. Id. Use of a substitute road may be evidence of an abandonment of the old road; however, “[t]he mere use of a new right-of-way will not extinguish the old. There must also be an abandonment by non-use of the old right-of-way.” Id. (quoting Shippy v. Hollopeter, 304 N.W.2d 118, 122 (S.D.1981)). Those claiming abandonment carry the burden of showing by clear and convincing evidence an intent to abandon the easement. Cleveland v. Tinaglia, 1998 SD 91, ¶ 26, 582 N.W.2d 720, 725; see Mueller v. Bohannon, 256 Neb. 286, 589 N.W.2d 852, 859 (1999).

Graves, 2004 SD 137, ¶ 11, 691 N.W.2d at 318. The clear and convincing evidence of intent to abandon was emphasized in Graves:

Failure to take advantage of a servitude benefit, even for a lengthy period, is seldom sufficient to persuade a court that abandonment has occurred. Some additional action on the part of the beneficiary inconsistent with continued existence of the servitude is normally required, although the amount of additional evidence required tends to diminish as the period of nonuse grows longer. In cases where a very long period of time has passed, abandonment may be found even without other evidence of intent.

Id. ¶ 12, 691 N.W.2d at 318 (quoting Restatement (THIRD) OF PROPERTY, § 7.4 cmt. c (2000)). Ultimately, because of the nature of these cases: “A finding of abandonment is usually based on circumstantial evidence rather than on direct expressions of intent....” Id.

[¶ 10.] Boyer argues that the acts of the Winchesters, the tenants in possession, did not reflect an intent to abandon the easement. He specifically contends the trial court erred in finding that the easement had not been used for ingress and egress from 1982 through 2006. With respect to the trial court’s conclusions, he contends that the trial court erred as a matter of law in concluding that the pedestrian, bicycle, and sporadic vehicular use did not constitute ingress and egress sustaining his easement. We agree with Boyer.

[¶ 11.] In reaching its decision, the trial court placed significant weight on the fact that at some points in time Winchesters closed, and at one point even bolted, the access gate to the easement. This conduct, however, did not reflect an intent to abandon. The testimony was undisputed that the gate was shut to stop a neighbor’s (a non-dominant tenant’s) constant vehicular use of the private easement and to keep trespassing children out of Winchesters’ workshop. Rather than reflecting an intent to abandon, these actions reflected an intent to protect Lot B from trespassers and to limit use of the private easement to those individuals who had a right to use it. Moreover, in 1994, the chain on the gate was exchanged for a rope to permit access to the easement by the Winchesters’ children who used it to get back and forth to school and deliver newspapers. This gated use by the possessors of the dominant tenement reflected intent to use the easement for ingress and egress.

[¶ 12.] The trial court also found that foliage had encroached on the easement, and on occasion junk cars and wood piles partially or temporarily blocked its entrance. This encroachment and storage of items that partially or temporarily blocked the easement was not, however, dispositive evidence of abandonment.

It has often been held that an unintentional or a partial blocking is insufficient to disclose abandonment and so long as the purpose of ingress and egress is not substantially interfered with, no rights of the owners are lost.... As a general rule, a mere neglect of the condition of a way is not enough in addition to nonuser to show abandonment.

Harrington v. Kessler, 247 Iowa 1106, 1111, 77 N.W.2d 633, 635 (Iowa 1956) (citations omitted). We conclude that the trial court erred in viewing the encroachment and Winchesters’ conduct of storing these items in front of the easement as demonstrating intent to abandon. All items alleged to have been stored were moveable, they were not stored the entire twenty-four year period, and as we explain below, none of this conduct substantially precluded ingress and egress. Therefore, the encroachment and the storage of these items did not clearly and convincingly evince the intent to permanently abandon the easement.

[¶ 13.] We finally observe that there was uncontested evidence that this easement was used for ingress and egress between 1982 and 2006. The record reflects a number of examples of the tenants’ use of the easement for ingress and egress by foot, bicycle and vehicle. With regard to vehicle use, Jeff Winchester was specifically asked if from 1982 to 1986 he, his father or brothers had used the “easement for ingress and egress to the property.” Although Jeff indicated that the easement had been used for ingress and egress “seldom” or only “[o]nce in awhile,” he testified that they used the easement at times when “moving vehicles out and about.” Jeff also testified that the easement had been used by the entire family when the Alternate Routes were torn up by a utility company in 1988. Additionally, a neighbor testified that in 1986, “the gate was open and cars were going back and forth on the easement.” Finally, the evidence reflected that Boyer’s former father-in-law used the easement for ingress and egress prior to his death in 1997.

[¶ 14.] With respect to other uses, the evidence was uncontested that in 1983, Jeff, who was in ninth grade at the time, used the easement “daily” on his bicycle, to get to and from high school. He also used the easement to deliver papers in 1984. In 1998, Loren Winchester, Jeffs child and tenant of Lot B, used the easement for ingress and egress to catch the Headstart bus. The bus would actually “stop over on the easement” (on the north end of the easement directly in front of Dennis’ house) to pick up Loren. Finally, Loren, along with his parents, used the easement “regularly” to deliver newspapers and occasionally to pick up the family’s mail around 2002 through 2003.

[¶ 15.] These uses to get to and from school and Headstart, to pick up mail, and to deliver newspapers demonstrated use for ingress and egress by the tenants in possession. Furthermore, these uses cannot be discounted merely due to the type of transportation or the age of the tenant. The easement grant did not limit ingress and egress to vehicular traffic for adults. Because vehicular use for adults was not the exclusive use specified by the grant, “bicycles, handcarts, and foot travel must also be given consideration” when evaluating whether the owner intended to abandon the easement. Harrington, 247 Iowa at 1112, 77 N.W.2d at 636.

[¶ 16.] We conclude the trial court erred as a matter of law and fact in finding that the easement had not been used for ingress and egress for twenty to thirty years. Although Boyer’s tenants accessed Lot B via the Alternate Routes most of the time, the trial court erred as a matter of law in failing to give consideration to the uses that did occur. Those uncontested uses did not reflect clear and convincing evidence of nonuse and intent to abandon the easement.

[¶ 17.] Reversed.

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . Although Dennis' property also includes 34 feet of Lot M directly to the west of Lot L, for simplicity we refer to the property in its entirety as Lot L.

      . A visual depiction of the properties and easement follows:

      . Although evidence established that the City of Rapid City had provided a temporary easement over Lots B and L for the entire neighborhood’s use at one time, none of the above listed uses were associated with this temporary easement. The temporary easement was strictly confined to a 30 day period around July of 2004.