Ware, City of Stewartville officials testify in eminent domain case

January 28, 2019
1 of 2

The city of Stewartville pleaded its case in Olmsted District Court this week to take a 66-by-66-foot plot of land from Daniel Ware.

Ware continued to fight the city’s plans to connect two dead-ends of Fourth Avenue Southeast in Stewartville by building a road across his land. The eminent domain case was heard in Judge Jacob Allen’s courtroom Tuesday and Thursday.

Ware’s property, a long, thin acre extending from Third Avenue Southeast, across Fourth Avenue — creating dead-ends of the road on either side — and back 660 total feet, has been in his family for more than 100 years. He had opposed the city’s plan, refusing a city offer of $10,000 for a small square of land from the middle of his lot where the city would build a road to connect the two sides of Fourth Avenue.

Ware, who testified Thursday, said he’s lived at the property for 83 years. As part of his testimony, his chief concerns were having to cross the street to get from the east side of his property, where his home is located, to the west side where his gardens and shed are located.

“I’ll have to cross an open highway,” Ware said. When Melanie Leth, the attorney for the city of Stewartville, corrected him that Fourth Avenue Southeast was a residential street, not a highway, Ware responded, “It’s an open highway the way they drive.

“I’d have to look every time I go back and forth,” he argued.

Ware’s other contention was that the agreement made between the city and his parents in 1972 that no road be built through the property without their request was still in force.

But that agreement — where the city hooked up the Ware’s home to a new sanitary sewer built at that time in exchange for an easement for a water main under the property along the Fourth Avenue path — mentions only the current owners, Ware’s parents, and does not mention any heirs or successors, said City Administrator Bill Schimmel.

“We have not found any records to show it continued beyond the ownership of his parents,” Schimmel said.

The crux of the city’s case was made on Thursday, when City Engineer Jenna Obernolte made the case for the city’s rationale for the road construction project and the need to connect the two sides of Fourth Avenue.

Obernolte explained how the way the road dead-ends on either side of Ware’s property makes it difficult for snow plows to property maintain the road, how the road is deteriorating and needs to be repaved, and how the 4-inch water main under the road – and under Ware’s property – is insufficient for fire fighting.

The main has also burst in that area several times over the past few years. Each water main break costs the city around $10,000 to repair.

Finally, Obernolte refuted testimony from Tuesday in which Ware’s attorney, Lee Novotny, asked Schimmel to point out several other dead-ends around town. Obernolte said those dead-ends are designed differently than the two on Fourth Avenue. Most are at the edge of the city limits. Others are only one or two lots deep, and were created due to natural features such as a river.

Obernolte said that if the work on Fourth Avenue slated for next summer simply omitted the Ware property and came back to do it at a later day, the cost for that section would increase more than 200 percent, not including the increased cost for inflation.

Longtime Stewartville firefighter and first responder Greg House, who grew up in the neighborhood where Ware lives, added that the dead-ends create problems for emergency vehicles responding to calls on either side of Ware’s property on Fourth Avenue.

One call last summer, he said, led down the wrong dead end and meant arriving at a home three to four minutes later than if the road was connected. Those few minutes can mean the difference between life and death in a medical call, he said.

“I drive those big fire trucks,” House said. “You cannot turn around (at the dead ends). You have to back it up and you need a spotter for that. If there are children out playing, it’s a dangerous situation.”

Judge Allen gave the attorneys until end of day Feb. 8 to submit final arguments. At that point, the case will be taken under consideration.

Obernolte said as long as the case is decided by April, the city can send out for bids on the project depending on the judge’s ruling.

Update hourly