Gardener Josephine Wilmes with newly planted Elderberry bush at the May Street Berry Patch

The Minnesota Free Market Institute is proud to announce that it has filed an amicus brief in the case of the May Street Berry Patch. The case arose when St. Paul city officials would not allow Greg Wilmes to remove a maple tree that was growing on his property alongside a public street. The maple tree shades his lot and inhibits the growth of his garden. Under St. Paul’s city code Mr. Wilmes was required to apply for a permit to remove the tree. The city denied his application, claiming that the tree belonged to the city or to the public. They told him he should instead plant things that can grow in the shade.


The city’s claim of ownership contradicted longstanding state law under which the city only has an easement on land bordering a road while the property owner retains ownership of the land, including trees growing there. The city only has the right to ensure that the owner’s use of the land does not inhibit the flow of traffic. We believe the city acted outside its authority by controlling Mr. Wilmes’ use of his land when that use was unrelated to the city’s legitimate interest in traffic flow.


This case also raises some interesting issues relating to eminent domain, and other issues under more obscure provisions of the Minnesota Constitution. Unfortunately the district court dismissed Mr. Wilmes’ claim without looking at the evidence and without considering all of the legal issues raised. Mr. Wilmes has appealed the decision, and we have filed an amicus brief in support of his property rights. The case is Wilmes v City of St. Paul. We will keep you updated as the case progresses.