Kelley v. Moe

387 N.W.2d 664, 1986 Minn. App. LEXIS 4365
CourtCourt of Appeals of Minnesota
DecidedMay 27, 1986
DocketNo. C8-86-96
StatusPublished
Cited by1 cases

This text of 387 N.W.2d 664 (Kelley v. Moe) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelley v. Moe, 387 N.W.2d 664, 1986 Minn. App. LEXIS 4365 (Mich. Ct. App. 1986).

Opinion

OPINION

LESLIE, Judge.

Phyllis J. Kelley appeals from a judgment determining that a previous judgment vacating a platted road was void ab initio for failure to comply with the mandates of due process. We reverse.

FACTS

On approximately September 26, 1979, a petition was filed with the Pope County District Court requesting a court order vacating a sixty-six foot road that appeared on the plat of the Lake Linka Lots in Pope County. Apparently, the road had been bulldozed and removed twenty-two years earlier. The petition was signed by all but owners of three parcels of land within the plat. The attorney for the petitioners in that proceeding, including appellant, was Robert J. Walter. Pursuant to Minn. Stat. § 505.14 (1984), Walter published and posted notice of the hearing to vacate the road and served the chair of the town board with such notice.

Walter prepared four letters for mailing to the property owners. The first letter, dated June 28, 1979, explained the purpose of the petition and invited each owner to sign the petition, a copy of which was enclosed. Also enclosed was a photocopy of the Lake Linka Lots plat. Walter prepared the letter dated July 27, 1979 to send to those lot owners who failed to return a signed petition. The letter also corrected an error in the previous letter. Walter prepared the next letter, dated September 13, 1979, to send to all property owners in the subdivision, informing them of his intent to proceed despite the fact that five persons who owned three parcels had not signed the petition. One of those persons, Lloyd Erickson, is a respondent here. This letter also invited owners who had signed the petition to withdraw their names if they so desired. Finally, Walter prepared the letter dated September 26, 1979 to inform all of the owners of the date and time of hearing, although omitting the place of hearing.

The hearing was held on November 15, 1979. In a judgment dated December 4, 1979, the trial court vacated the platted road and determined title to the underlying land. The court granted each of the property owners access to their respective lots ' [666]*666across the vacated road. There was no appeal from this judgment.

In 1984, appellant commenced this action to enjoin respondents, current owners of property in Lake Linka Lots, from using the portion of the vacated road assigned to appellant. Respondents denied appellant’s allegations, counterclaimed for money damages, and moved for a judgment setting aside the December 4, 1979 judgment vacating the road. The trial court ordered that all Lake Linka lot owners be given notice of respondents’ motion.

The motion to vacate that judgment was heard on April 30, 1985. The court found that respondent Lloyd Erickson, one of the owners of property adjoining the vacated platted road, had no notice of the proceeding to vacate the road. The court concluded that the notice procedure was therefore insufficient to comply with the mandates of due process, rendering the judgment vacating the platted road void ab initio.

ISSUES

1. What manner of notice of hearing must be made in a proceeding to vacate a platted road pursuant to Minn.Stat. § 505.-14?

2. If mailed notice is adequate, is service of such notice complete upon mailing?

ANALYSIS

1. The proceeding to vacate the platted road was instituted pursuant to Minn.Stat. § 505.14 (1984), which requires the petitioner to give two weeks published and posted notice of the application and personally serve notice of the application upon the chair of the town board. Respondents do not dispute that appellant fulfilled these statutory notice requirements. Nevertheless, the Minnesota Supreme Court has indicated that the provisions for notice in this statute are not sufficient to comply with due process.

In Etzler v. Mondale, 266 Minn. 353, 123 N.W.2d 603 (1963), the applicant had dedicated a portion of a plat to the village of Golden Valley for use as a park. The property was never used as a park, and the village delivered a quitclaim deed to the applicant after passing a resolution that the land was unfit for use as a park. The applicant successfully brought suit under § 505.14 to have the restriction vacated and complete title returned to her. The supreme court found that although the applicant was authorized to proceed under § 505.14, “no effort or attempt was made to accord due process to the purchasers of lots within the platted area.” Id. at 364, 123 N.W.2d at 611. The court continued as follows:

In future proceedings under § 505.14, it should be kept in mind that adequate service must be made upon owners or occupants of land within the platted area, and that service by the publication and posting of notice of the procedure, as provided in § 505.14, will be deemed inadequate.

Id. at 365, 123 N.W.2d at 611. The supreme court, however, did not define “adequate service.”

More recently, in Batinich v. Harvey, 277 N.W.2d 355 (Minn.1979), landowners brought an action under § 505.14 to void a covenant that restricted the use of land to residential purposes. Notice of the proceedings consisted of publication by posting notice. Id. at 357. The supreme court remanded the case for a new trial because “all owners wkhin the plat were not served with notice * * Id. at 359. Although not defining “served with notice,” the supreme court stated that “due process requires notice to all affected parties” and that “notice set out by the statute is not sufficient to comply with due process.” Id. at 358.

In Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956), the United States Supreme Court held that publication alone in a land condemnation case failed to satisfy the requirements of due process. The Court indicated that “[ejven a letter would have apprised [appellant] that his property was about to be taken and that he must appear if he wanted to be heard as to its value.” Id. at 116, 77 [667]*667S.Ct. at 202 (footnote omitted). The Court’s concern was that “[i]n too many instances notice by publication is no notice at all.” Id. at 117, 77 S.Ct. at 203.

Similarly, in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Court held that statutory notice by publication was inadequate with respect to resident beneficiaries on judicial settlement of accounts by the trustee of a common trust fund. The Court reasoned as follows:

Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.

Id. at 318, 70 S.Ct. at 659. The Court noted that “the mails today are recognized as an efficient and inexpensive means of communication.” Id. at 319, 70 S.Ct. at 660.

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Bluebook (online)
387 N.W.2d 664, 1986 Minn. App. LEXIS 4365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelley-v-moe-minnctapp-1986.