County of Otter Tail v. Nelson, 28994.

• Decision Date: 10 November 1932
• Docket Number: No. 28994.,28994.
• Citation: 245 N.W. 427,187 Minn. 277
• Parties: COUNTY OF OTTER TAIL v. NELSON et al.
• Court: Minnesota Supreme Court

245 N.W. 427

187 Minn. 277

COUNTY OF OTTER TAIL v. NELSON et al.

No. 28994.

Supreme Court of Minnesota.

November 10, 1932.

Appeal from District Court, Otter Tail County; D. M. Cameron, Judge.

Condemnation proceeding by the County of Otter Tail against Frank A. Nelson and others. From an order denying an alternative motion for judgment non obstante or new trial, after award of damages by jury, defendant Amos Marckel appeals.

Affirmed.

Owen V. Thompson, of Fergus Falls, and M. J. Daly, Jr., of Perham, for appellant.

John L. Townley, Co. Atty., of Fergus Falls, for respondent.

WILSON, C. J.

The appeal is from an order denying an alternative motion for judgment non obstante or a new trial.

Otter Tail county, under Laws 1929, p. 150, c. 155, Mason, 1931 Supp. § 2560-1, instituted condemnation proceeding to acquire a certain portion of the land owned by appellant. This was involved in an adjustment or general scheme of improvement in state-aid road No. 12, running generally from near Underwood northeasterly for several miles to a point south of Perham.

Appellant attacked the jurisdiction of the court. The matter progressed and commissioners awarded appellant damages at $328. On appeal as to the question of damages the jury awarded him $446.

We are concerned with about 160 acres of appellant's land. It appears in form on a map, Exhibit D, as about a quarter section. His buildings are near the southeast corner. There was an old road entering upon this land from the southwest at a point about 1,000 feet north of the southwest corner and then extending northeasterly about 300 feet; thence in rather a crescent-shape more to the east about 1,600 feet; thence northeasterly again to the easterly line of appellant's land. This road was not straight in any sense; and, in addition to taking the general route indicated, it was a tortuous one with short slight bends and some longer ones. Reference will be made to this highway as the "old road."

In 1911 upon petition the old road was vacated by the county board and a new road (not here important) established along the north line of this land, across the northwest corner thereof, and along the westerly side intersecting there with the old road. See Obert v. Board of County Commissioners, 122 Minn. 20, 141 N. W. 810. The old road in obedience to statute was left open for two years, at the end of which time the new road had not been completed. Appellant claims that he then entered into an agreement with the county board and the town board permitting them to keep the road open for a further period—perhaps until the new road was completed. There the matter rested. From 1913 to 1923 no work of any kind was done on the old road. In 1923 the county board commenced to maintain the road and from then up to the time of the commencement of this proceeding, in April, 1930, the old road was dragged with team and road drag. Respondent denies the claim of appellant that the old road was at any time in use under such agreement as he claims.

State-aid road No. 12 was so designated on May 9, 1922, and was approved by the commissioner of highways on June 29, 1922. As so designated and approved it was a continuous road of several miles including and embracing the route of the old road over and across appellant's land. Thus when it was so designated it had a gap in it over appellant's land, the old road having there been vacated as aforesaid, though it had never been closed to the public. Following said designation of the state-aid road and since 1923, as found by the trial court, this old road has been worked and maintained at public expense with the knowledge and acquiescence of the appellant.

With the foregoing background, the county board on April 1, 1930, by resolution, determined that it was expedient and necessary to construct and improve state-aid road No. 12, in accordance with certain plans prepared therefor, and therein selected and designated the route and course for said state-aid road No. 12 as...