Kelmar Corp. v. District Court of Fourth Judicial Dist., Hennepin County, 39468

• Decision Date: 14 August 1964
• Docket Number: No. 39468,39468
• Citation: 130 N.W.2d 228,269 Minn. 137
• Court: Minnesota Supreme Court
• Parties: The KELMAR CORPORATION, Relator, v. DISTRICT COURT OF FOURTH JUDICIAL DISTRICT, HENNEPIN COUNTY, and Honorable Luther Sletten, Judge, Respondent.

Page 228

130 N.W.2d 228

269 Minn. 137

The KELMAR CORPORATION, Relator, v. DISTRICT COURT OF FOURTH JUDICIAL DISTRICT, HENNEPIN COUNTY and Honorable Luther Sletten, Judge, Respondent.

No. 39468.

Supreme Court of Minnesota.

Aug. 14, 1964.

Syllabus by the Court

1. In proceedings for taking of property by eminent domain, it is not necessary for the commissioner of highways acting for the state to show an absolute or indispensable necessity for the taking, but only that the proposed taking is reasonably necessary or convenient for the furtherance of a proper purpose.

2. The fact that land acquired in condemnation proceedings instituted by the commissioner of highways may be used by another agency of the state will not defeat lawful acquisition so long as the taking essentially serves a public purpose for highway use.

3. The commissioner of highways was authorized by Minn.St. 161.20, subd. 2, to cooperate with the U.S. Army Corps of Engineers and the Lower Minnesota River Watershed District to take property by condemnation proceedings where such taking served a purpose in the general scheme of navigation and flood control and at the same time served to improve the public highway system.

4. A statement in a pleading will not be considered conclusive as a judicial admission which might eliminate an issue from the case unless it is intentionally made as a waiver of the requirement that the other party submit proof on that point.

5. Issues which have not been litigated or passed upon by the lower court will not be considered on review.

Bundlie, Kelley & Torrison, St. Paul, for relator.

Walter F. Mondale, Atty. Gen., Perry Voldness, Deputy Atty. Gen., William J. Young and Ward Gronfield, Sp. Asst. Attys. Gen., St. Paul, for respondent.

MURPHY, Justice.

This is certiorari upon relation of The Kelmar Corporation to review an order of the district court granting the petition of the State of Minnesota for appointment of commissioners to appraise damages which may be occasioned by the taking of relator's property. It is the contention of relator that (1) the state is without authority in law to condemn the property; and (2) that in the event it is found there is a right of condemnation, there is no need for the appointment of appraisers since the state has conceded by judicial admission that the property has a value of $30,000. Apparently, Kelmar feels that that sum represents the reasonable value of the property.

The dispute grows out of condemnation proceedings instituted by the state pursuant to plans to build a bridge to carry Interstate Trunk Highway No. 494 across the Minnesota River. There is a high bluff on the west bank at which point the bridge is to cross the river. The flow of the river follows a winding course through low boggy land. The U.S. Army Corps of Engineers has been planning to straighten the river in this area. This project was undertaken in cooperation with the Lower Minnesota River Watershed District, a state agency created pursuant to Minn.St. c. 112 and established for the purpose, among other things, of the conservation of natural resources of the state through 'land utilization, flood control and other needs upon sound scientific principles for the protection of the public health and welfare and the provident use of the natural resources,' § 112.34, including the specific utilization of 'diverting or changing water-courses.' § 112.36(6). The original plan of the U.S. Army Corps or Engineers was to construct a new channel on the east side of the river's present course. The Minnesota State Highway Department, however, favored an alternate plan by which the channel will be cut west of the river's present course closer to the high west bank. Bringing the river closer to the bluff which will form the western terminus of the bridge will make it possible to construct a bridge of only 2,800 feet instead of 4,300 feet, resulting in an estimated saving of $1,646,362. This alternate plan, however, would increase the cost to the Federal government an estimated additional $443,000.

The state, upon recommendation of the highway department, entered into a contract with the United States by which it was agreed that the Corps of Engineers would construct the channel in accordance with the state's plan. A copy of this contract is attached to the petition as an exhibit. By the contract the state agreed to reimburse the Federal government for the additional cost in the sum of $443,000 and further agreed to furnish land with an estimated marked value of $50,000 for the construction of the new channel. The result would be a net saving of $1,153,362 to the state. Part of the land required for the new channel, valued at $20,000, is already owned by the state; and the rest, estimated at a value of $30,000, is land which the state now seeks to condemn. ¹ This land is located 2,400 feet south of the proposed bridge. The contract further recites that the Lower Minnesota River Watershed District is the local sponsor of the channel change project and has assumed the obligation of furnishing 'all lands, easements and rights of way necessary for the construction, operation and maintenance of the project.' It goes on to state:

'It is the intention of the State to pay for the total cost of the above described land, including acquisition costs, and to have said land conveyed directly from the owner to the Lower Minnesota River Watershed District for subsequent conveyance by the Watershed District to the Government. The Watershed District is acquiring all of the lands for the Government for the improvement and realignment of the Minnesota River.'

The Kelmar Corporation filed objections to the state's petition on the ground that the purpose of the condemnation 'is not for highway purposes, that the taking is not necessary but is arbitrary and capricious, and is beyond the authority of the Commissioner of Highways to acquire.' Before the trial court The Kelmar Corporation urged in addition that there was no need for the appointment of appraisers for the reason that the contract, which was part of the state's petition, contained a judicial admission as to the value of the property and consequently there was nothing left to litigate on that point. The trial court, after hearing brief testimony from a highway engineer bearing on the description and proposed use of the property in question and after hearing arguments of counsel, made its order denying the objections and granting the petitions for appointment of commissioners to appraise the property.

1. We will consider first the claim of the property owner that there is no highway purpose in the taking and that the highway department's finding of convenience and necessity was arbitrary, unreasonable, and capricious. We must accordingly inquire if the proceedings were vitiated merely because the property to be condemned is not directly used for highway purposes. The property owner relies on State ex rel. Ford Motor Co. v. District Court, 133 Minn. 221, 158 N.W. 240, and State ex rel. Peterson v. District Court, 196 Minn. 44, 264 N.W. 227. In the former case the city of Minneapolis, under the pretense of taking a right-of-way for an alley, sought to exercise its power of eminent domain to acquire a right-of-way for the Great Northern Railway. In the latter, the highway department attempted to use its funds for the construction of roadside camping and recreational facilities. The state relies on the more recent authorities of Housing and Redevelopment Authority of City of St. Paul v. Greenman, 255 Minn. 396, 96 N.W.2d 673, and Asch v. Housing and Redevelopment Authority of City of St. Paul, 256 Minn. 146, 97 N.W.2d 656. In these cases the housing authority condemned slum land, cleared it, and sold it to private parties. It was held that this was part of a unified plan for slum clearance, which is a public purpose.

The property owner argues that the need and convenience actually served is not for the benefit of the highway department but for a 'wholly different agency or sovereign,' and that the economy and convenience resulting to the state from the construction of a shorter bridge does not justify the taking. They argue that the state is exercising its sovereign right of eminent domain 'for the purpose of making money or for the purpose of trading in lands and land values or for the purpose of engaging in the business of a huckster.' If this assertion were true, we could readily agree that the action of the state was arbitrary and capricious and therefore unlawful. We are convinced, however, from an examination of the record and authorities, that the taking of the property in question is for a public purpose. Although the direct physical use of the property in question will not be for highway purposes, its use is nevertheless incidental to and related to that purpose. The acquisition of the property in question will make it possible to relocate the main channel of the river so that a bridge may be constructed which will more conveniently and economically serve as a public facility.

The commissioner of highways is empowered by Minn.St. 161.20 to acquire all lands and properties necessary 'in laying out' and 'constructing * * * the trunk highway system.'...