This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A16-0486

Loren K. Yarmon, et al.,

Appellants,

vs.

Minnesota Department of Transportation,

Respondent.

Filed October 17, 2016

Affirmed

Kirk, Judge

Benton County District Court

File No. 05-CV-15-120

David M. Jann, Bruce Jones, Michelle E. Weinberg, Faegre Baker Daniels, LLP, 

Minneapolis, Minnesota (for appellants)

Lori Swanson, Attorney General, Stephen D. Melchionne, Assistant Attorney General, St. 

Paul, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Cleary, Chief Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N

KIRK, Judge

In this inverse-condemnation action, appellants challenge the district court’s grant 

of summary judgment to respondent, arguing that the court erred in refusing to compel 

respondent to compensate them for its unconstitutional taking of their right-of-way to a 
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state highway. Because the district court did not err in concluding that a taking had not 

occurred, we affirm. 

FACTS

Appellants Loren K. Yarmon and Jane M. Yarmon are owners and lessors of 

property abutting the right-of-way to U.S. Highway 10. The property, which is located on 

CSAH 21, a frontage road to Highway 10, is improved with a gas station/convenience store 

and two fast-food restaurants. Prior to 2014, the property could be accessed from Highway 

10 by an at-grade signalized intersection located at Highway 10 and County Road 2. The 

distance to the property from the intersection was approximately 600 feet. Northbound 

drivers wishing to access the property would turn east at the intersection onto County Road 

2 and then turn north onto CSAH 21. Southbound drivers would turn east at the intersection 

onto County Road 2, and proceed north onto CSAH 21.

In 2014, respondent Minnesota Department of Transportation (MnDOT) 

reconstructed the intersection at Highway 10 and County Road 2 by installing a gradeseparated interchange along the highway and constructing a highway bridge overpass 

crossing County Road 2. After the construction, the property is accessible by entrance and 

exit ramps in both directions along Highway 10. Northbound drivers on Highway 10 must

travel an additional 2,600 feet along an exit ramp to access the property. Similarly, 

southbound drivers travel an additional 3,600 feet along an exit ramp to reach the property. 

Access to the property from County Road 2 to CSAH 21 remained unchanged by the 

construction. 
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The Yarmons filed a petition for an alternative writ of mandamus seeking to compel 

the state to commence condemnation proceedings, contending that the changes in access 

constituted an unconstitutional taking. In the petition, they argued that, as abutting 

property owners, they had a compensable property right to direct access to the highway, 

they were automatically entitled to compensation under Minn. Stat. § 160.08, subd. 5 

(2014), for loss of existing access rights, and the property no longer had reasonably 

convenient and suitable access to the highway. In response, MnDOT requested that the 

district court dismiss the Yarmons’ petition on its merits and award MnDOT costs and 

disbursements. The parties cross-filed for summary judgment. 

Following a hearing, the district court granted summary judgment to MnDOT and 

denied the Yarmons’ motion. This appeal follows.

D E C I S I O N

Summary judgment is appropriate when the record shows “that there is no genuine 

issue as to any material fact and that either party is entitled to a judgment as a matter of 

law.” Minn. R. Civ. P. 56.03. This court reviews the district court’s grant of summary 

judgment de novo to determine whether there are genuine issues of material fact and 

whether the district court erred in applying the law. Mattson Ridge, LLC v. Clear Rock 

Title, LLP, 824 N.W.2d 622, 627 (Minn. 2012). “We view the evidence in the light most 

favorable to the party against whom summary judgment was granted.” STAR Ctrs., Inc. v. 

Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). Where the material facts 

are undisputed, the district court must decide as a matter of law whether an uncompensated 
4

taking has occurred. Thomsen v. State by Head, 284 Minn. 468, 475, 170 N.W.2d 575,

580-81 (1969). 

I. The Yarmons do not have a property right to direct and immediate access to 

Highway 10. 

A property owner has a compensable property right of access to an abutting public 

road. C and R Stacy, LLC v. Cty. of Chisago, 742 N.W.2d 447, 457 (Minn. App. 2007).

“It is well settled under Minnesota law that property owners have a right of ‘reasonably 

convenient and suitable access’ to a public street or highway which abuts their property.” 

Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn. 1978) (citing Hendrickson v. 

State, 267 Minn. 436, 446, 127 N.W.2d 165, 173 (1964)). “This right is in the nature of a 

property right.” Id. at 605-06. The issue of whether there has been a taking of reasonably 

convenient and suitable access is a mixed question of fact and law. Grossman Investments 

v. State by Humphrey, 571 N.W.2d 47, 50 (Minn. App. 1998), review denied (Minn. Jan. 

28, 1998). Whether reasonably convenient and suitable access remains is “a question of 

fact to be determined in light of the circumstances peculiar to each case.” Johnson, 263

N.W.2d at 607. But whether a change in access constitutes a taking is determined as a 

matter of law. Oliver v. State ex rel. Comm’r of Transp., 760 N.W.2d 912, 916 (Minn. 

App. 2009). 

As abutting property owners, the Yarmons argue that they have a property right to 

direct and immediate access to the highway that is separate and distinct from the right to 

reasonably convenient and suitable access. They rely on Hendrickson and succeeding

cases applying Hendrickson to argue that appellate courts have found a taking when a 
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property owner’s direct and immediate access to the highway becomes indirect due to road 

reconstruction. 267 Minn. at 436, 127 N.W.2d at 165. The district court rejected the 

Yarmons’ claim, concluding that such a right was not recognized under Minnesota law. 

Here, the Yarmons, unlike the property owners in Hendrickson, have never enjoyed 

direct and immediate access to the highway. To the contrary, the property has always been 

located on CSAH 21, a frontage road to Highway 10. Further, Hendrickson clearly holds 

that not every denial of immediate or convenient access will support a claim for damages. 

267 Minn. at 446, 127 N.W.2d at 173. As abutting landowners, the Yarmons can only be 

entitled to damages when a highway modification substantially impairs “reasonably 

convenient and suitable access to the main thoroughfare.” Beer v. Minn. Power & Light 

Co., 400 N.W.2d 732, 734 (Minn. 1987) (citing Hendrickson, 267 Minn. at 446, 127 

N.W.2d at 173). 

Additionally, none of the cases cited by the Yarmons recognize an abutting owner’s 

property right to direct and immediate access to their property that is distinct from the 

reasonable-access test enunciated in Hendrickson. See Courteaus, Inc. v. State, Dep’t of 

Highways, 268 N.W.2d 65, 68 (Minn. 1978) (holding property owners who were not 

abutting owners did not have a right to damages merely because access to a conveniently 

located highway may be denied and cause them to use a more circuitous route); Johnson 

Bros. Grocery v. State, Dep’t of Highways, 304 Minn. 75, 76, 229 N.W.2d 504, 504 (1975) 

(holding rebuilding of highway where abutting property owner originally had direct and 

unlimited access, into a divided four-lane, limited access highway, denied owner 

reasonably convenient and suitable access); Prow’s Motel, Inc. v. State, 294 Minn. 345, 
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200 N.W.2d 910 (1972) (affirming trial court’s ruling that abutting motel owner’s 

northbound access to reconstructed four-lane highway was not reasonably convenient and 

suitable after state closed a crossover leading from Fourth Street to highway). 

II. Reasonably convenient and suitable access remains after construction.

The Yarmons argue that access to their property is neither reasonably convenient 

nor suitable because of: (1) increased distances from the northbound and southbound 

routes; (2) the loss of visibility resulting from the increased grade of the highway; (3) the 

nature of the property as an “impulse-buy” destination; and (4) the loss in the property’s 

fair-market value. We address each claim in turn.

Viewing the evidence in the light most favorable to the Yarmons, the increased 

distances to Highway 10 do not render access to the property unreasonable. “The 

imposition of even substantial inconvenience has not been considered tantamount to a 

denial of reasonable access.” Grossman, 571 N.W.2d at 50; see also Dale Props., LLC v. 

State, 638 N.W.2d 763, 764-65, 767 (Minn. 2002) (holding access to and from the property 

remained reasonable after the closure of a median crossover resulted in additional travel 

times to the property exceeding half a mile and requiring drivers to make a U-turn from 

one direction); Grossman, 571 N.W.2d at 49-51 (holding the elimination of two signalized 

intersections and construction of a diamond interchange and pedestrian bridge did not 

amount to a compensable taking despite complete loss of access in one direction and

increased travel time from seconds to minutes from the other direction). 

The Yarmons argue that the grade elevation obstructs the visibility of the businesses 

from the highway. But appellate courts have “never held that a property owner has a right 
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to be seen from an abutting public street.” Grossman, 571 N.W.2d at 51. The only 

circumstance where the Yarmons could be compensated for loss of visibility is if the 

diminished visibility resulted from at least a partial taking of their property. State by

Humphrey v. Strom, 493 N.W.2d 554, 561 (Minn. 1992). Because no land was taken in

this case, the district court properly concluded that there was no taking caused by an 

elevated-grade change and the associated loss of visibility. 

The Yarmons argue that there is a genuine issue of material fact concerning what is 

reasonable access for their property given that it is populated by “impulse-buy” businesses 

that are highly dependent on drivers understanding that they can get from the highway to 

the property and back in a very short period of time. They argue that Grossman is 

inapposite to the instant case because it involved access to a car dealership, which is less 

likely to involve an “impulse buy.” 

It is true that the question of whether reasonable access exists depends on the unique 

circumstances of the case, including the character of the property involved. Johnson, 263 

N.W.2d at 607. But caselaw does not automatically confer a special status upon property 

owners who bring inverse condemnation claims concerning impulse-buy businesses. A 

court applies Hendrickson’s reasonable-access test irrespective of whether the property is 

populated by an impulse-buy business or a car dealership.

The Yarmons argue that under County of Anoka v. Esmailzadeh, a district court must 

consider the effect of impaired access on an impulse-buy business when determining 

whether a taking has occurred. 498 N.W.2d 58, 59 (Minn. App. 1993), review denied

(Minn. May 28, 1993). In Esmailzadeh, we reversed and remanded to the district court to 
8

focus on whether or not the property owner suffered a loss of reasonable access in light of 

uncontroverted evidence that recreational vehicles, which constituted the bulk of the 

businesses’ patronage, were physically unable to make a U-turn to access the property. Id.

at 61-62. But there is no evidence in this case that patrons are as similarly inconvenienced 

in accessing the property. 

Because the district court properly determined that no taking had occurred, it did 

not need to evaluate the fair market value of the property after highway reconstruction. 

Any loss in the fair market value of the property need only be considered after a finding 

that access to the property is no longer reasonable. See Hendrickson, 267 Minn. at 445-46, 

127 N.W.2d at 172-73 (holding that if the fact-finder determines a substantial impairment 

to a plaintiff’s right to reasonably convenient and suitable access, the plaintiff is entitled to 

damages). 

III. The Yarmons do not have an automatic right to compensation under Minn. 

Stat. § 160.08, subd. 5 (2014).

Minn. Const. art. 1, § 13, provides that “[p]rivate property shall not be taken, 

destroyed or damaged for public use without just compensation therefor, first paid or 

secured.” Likewise, Minn. Stat. § 160.08, subd. 4 (2014), provides that “[p]roperty rights, 

including rights of access, air, view, and light, may be acquired by [state] road authorities 

with respect to both private and public property by purchase, gift, or condemnation.” 

Property owners who believe that the state has effectuated an unconstitutional taking of 

their property may petition the district court for a writ of mandamus to compel the state to 

initiate condemnation proceedings. Dale Props., 638 N.W.2d at 765. 
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Separate and distinct from existing common-law remedies, the Yarmons allege that 

Minn. Stat. § 160.08, subd. 5 (2014), requires MnDOT to compensate them for the 

uncompensated taking of their existing access to the highway. Minn. Stat. § 160.08, subd. 

5, authorizes state road authorities to locate, establish, and construct controlled-access 

highways and eliminate grade intersections of controlled-access highways with other 

existing streets or highways. “In the case of any elimination of existing access, air, view, 

light, or other compensable property rights, the owner shall be compensated for the loss by 

purchase or condemnation.” Id.

The Yarmons contend that the phrase “any elimination of existing access” in the 

triggering clause and the phrase “compensable property rights” should be interpreted to 

mean that the elimination of any existing access is automatically a compensable property 

right. 

Relying on Grossman, the district court concluded that Minn. Stat. § 160.08, subd. 

5, does not automatically create a right to compensation as the property owner must first 

demonstrate loss of reasonably convenient and suitable access to the main thoroughfare in 

at least one direction. 571 N.W.2d at 51. And that did not occur in this case.

We agree. In Grossman, we considered whether the statute automatically triggered 

compensation for the elimination of the existing visibility of a car dealership from the 

highway. 571 N.W.2d at 51. At the outset, we noted that Minn. Stat. § 160.08, subd. 5, 

does not automatically confer a right to compensation, and turned to caselaw to determine 

whether the loss of visibility resulting from construction changes to the highway was a 

compensable property right. Id. The Yarmons are not entitled to compensation under 
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Minn. Stat. § 160.08, subd. 5, unless they can prove compensable damage from the loss of 

reasonably convenient and suitable access to the main thoroughfare in at least one 

direction. Id. at 50 (citing State by Mondale v. Gannons, Inc., 275 Minn. 14, 19, 145 

N.W.2d 321, 326 (1966)). 

Affirmed.