In re Garvey, 26967.

• Decision Date: 21 December 1928
• Docket Number: No. 26967.,26967.
• Citation: 222 N.W. 578,176 Minn. 94
• Parties: In re GARVEY et al.
• Court: Minnesota Supreme Court

176 Minn. 94

222 N.W. 578

In re GARVEY et al.

No. 26967.

Supreme Court of Minnesota.

Dec. 21, 1928.

Certiorari from District Court, Scott County; C. M. Tifft, Judge.

Certiorari to review an order denying the petition of J. P. Garvey and others for the establishment of a judicial road in the counties of Scott and Dakota. Order affirmed.

Syllabus by the Court

In a judicial road proceeding, the court, after hearing, made findings of fact and, as conclusions of law, denied the petition and dismissed the proceeding. To sustain the decision so made, it is not necessary that the evidence be found to be practically conclusive against the propriety of establishing the road.

Such findings of fact have the same force and effect as the findings of fact in an ordinary civil action, and are not to be disturbed by this court if there is evidence reasonably tending to support them.

In a judicial road proceeding, the questions whether a particular proposed road is reasonably necessary for public use and convenience, and whether it is practical, or not practical because of excessive cost and expense, are not purely legislative in character.

Such questions are largely questions of fact and, so far as legislative, are but incidental to the proper judicial determination of the facts in the proceeding.

The court, by making findings of fact thereon, does not assume to exercise legislative discretion or authority. Converse & Converse, of South St. Paul, for petitioners.

Geo. F. Sullivan, of Jordan, H. A. Irwin, of Belle Plaine, Anthony T. Grotte, of Minneapolis, and Alfred Joyce, of South St. Paul, opposed.

OLSEN, C.

Certiorari to review an order of the district court of the Eighth judicial district dismissing on the merits a petition for the establishment of a judicial road.

Under section 2581, G. S. 1923, a petition for the establishment of a judicial road was filed and presented to the court. Commissioners were appointed, who proceeded to lay out the road as prayed for by the petition and to appraise damages. They filed their report describing the road and specifying the damages awarded to the different landowners. The report came on for hearing before the court. Confirmation of the report was opposed by the two counties affected and by a number of the landowners. After hearing had, the court denied the petition and dismissed the proceeding on the merits. The proposed road is 10 miles in length.

The court found, among other facts, that the proposed road crossed a line of railway under such conditions as would necessarily result in a very dangerous crossing; that it crossed a creek, necessitating a bridge to cost approximately $2,500; that to build the road so it would be suitable and serviceable would cost approximately $60,000, exclusive of the cost for right of way and for graveling. The damages for right of way, as shown by the commissioners' report, amounted to $5,400, besides the construction of two cattle passes and a short ditch. The court further found that all owners of land abutting upon the proposed highway, except two, have access to and from their lands over existing highways; that nearly, if not all, farm buildings in the vicinity are built with reference to, and front upon, existing highways, and that the proposed road passes over the back parts of these farms; that the cost and expense of establishing and building the road would be far in excess of any benefit therefrom; that public convenience and necessity are already adequately served, and there is no public demand or necessity for the new road; and that it would be against public interest to establish the road.

1. Relators contend that, in denying the petition, the court assumed to exercise discretion and legislative authority; that it is only where the evidence is practically conclusive against the propriety of establishing the road that the court may conclude that the ‘legislative presumption’ has been overcome, and refuse to lay out the road.

The necessity or propriety of establishing public highways is held to be a legislative question or function and, as such, cannot be delegated to the courts. Brazil v. County of Sibley, 139 Minn. 458, 166 N. W. 1077;Mahoney v. Kelley, 156 Minn. 327, 194 N. W. 775. Section 2581, G. S. 1923, does not delegate purely legislative power to the judiciary. In re Highway in Fillmore and Houston Counties, 158 Minn. 302, 197 N. W. 741.

The Legislature in this state, does not itself law out public highways except to a limited extent in the case of additional trunk highways. The Legislature, in providing for the establishment of public highways, determines that such highways are established for a public purpose and for public use. It determines that highways are necessary for public use and convenience, and provides for the establishment of highways by municipal boards and by the district courts. It does not determine the location of a particular highway, or that a highway at a particular place is necessary for public use or convenience, or that it is practical to there establish it. These are questions of fact which, in the case of judicial roads, are properly left to the court to determine. If, for instance, proceedings were regularly brought, under the law in question, to lay out a new road where roads already established served all necessary purposes or public use and travel, clearly the court could find as a fact that the new road was not necessary, and refuse to establish it. Likewise a road, so expensive to build that it would bankrupt or unduly burden the municipality required to bear the expense, would clearly justify a finding of fact that it was impractical, and justify a refusal to establish it.

That the Legislature may, to a limited extent, delegate to the courts powers that are more or less legislative in character, is recognized in Brazil v. County of Sibley, supra. It is stated that legislative authority cannot be conferred upon the court, except in special instances where the exercise thereof is incidental to the exercise of its jurisdiction in a proceeding properly of judicial cognizance. Condemnation and road proceedings, drainage, and other matters of public improvements or affairs involve more or less the exercise of both legislative and judicial powers. No definite line has been or can be drawn to determine what are legislative and what are judicial functions in such matters. There are in this state several cases indicating that the questions whether a particular public improvement serves a public purpose, and whether...