Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick

Decision Date24 December 1937
Docket NumberNo. 31306.,31306.
Citation201 Minn. 442,277 N.W. 394
CourtMinnesota Supreme Court

Appeal from District Court, Ramsey County; Richard D. O'Brien, Judge.

Condemnation proceedings by the Minneapolis-St. Paul Sanitary District against John F. Fitzpatrick. From an order denying its motion for new trial, the condemnor appeals.

Order reversed.

Oscar Hallam and Bruce J. Broady, both of St. Paul, for appellant.

Doherty, Rumble & Butler and Lewis L. Anderson, all of St. Paul, for respondent.


The Minneapolis-Saint Paul Sanitary District appeals from an order denying its motion for new trial.

The problem of sewage treatment and disposal in the cities of St. Paul and Minneapolis has been a matter of public concern over a period of years. The Legislature, recognizing the necessity of concerted action by the two cities to correct or at least alleviate existing evils caused by lack of suitable and modern facilities to meet such conditions, enacted Laws 1927, c. 181, creating the Metropolitan Drainage Commission. Amongst other things that commission was empowered (section 5 of the act) "to study the subject of sewage disposal and treatment, to make surveys and collect data relating to the methods which might be used in disposing of such sewage or of treating the same so as to protect such water course from pollution, as well as any other water courses or bodies of water lying within the drainage area of which such cities are a part. Said commission shall have power and authority to employ engineers, sanitary experts and such other skilled or technically trained persons as it deems advisable, and shall have power and authority to employ the necessary clerical and office assistants, and to incur such other expenses as may be necessary to carry on its work." Pursuant to the quoted provisions, the commission made exhaustive examinations, investigations, and reports. Many sites in the vicinity of the two cities upon which it was thought practicable to construct a sewage treatment plant were investigated, and detailed studies of the availability and desirability of these sites and the probable relative costs were prepared.

By Laws 1933, c. 341, as amended, 3 Mason Minn.St.1936 Supp. §§ 1607-8 to 1607-30, provision was made for the creation of a corporate body to take in hand the construction and operation of a sewage disposal system and treatment plant for the two cities and some additional contiguous territory. In accordance therewith, petitioner was formed and since has been functioning under and pursuant to the authority so granted. By virtue thereof it was invested with the powers of a municipal corporation, including power, by condemnation or purchase, to acquire necessary right of way for its sewage system and land upon which might be constructed and maintained a suitable and adequate sewage disposal and treatment plant.

Prior to the creation of petitioner, the drainage commission had made extensive research in respect of matters pertaining to its functions. The details of these studies, surveys, and investigations were delivered to petitioner and by it adopted as far as deemed serviceable and advantageous. Based largely upon these, petitioner formulated and put into operation a thorough and comprehensive plan to bring about a solution of the problems for which it was brought into being. In addition to acquiring a right of way for its sanitary sewer, some 9 miles in length, it also proceeded to acquire a site for its sewage disposal plant. A rather extensive area was needed to provide space for tanks, pumping equipment, an administration building, and other structures. A tract of land lying immediately north of the property here involved was purchased but more was needed. Apparently this could not be had by negotiations; hence petitioner proceeded by condemnation pursuant to 2 Mason's Minn.St.1927, c. 41 (§ 6537 et seq.), and thereby sought to acquire all of government lot 2, in section 9, township 28 north, range 22 west, owned by respondent, subject to a certain easement theretofore acquired by St. Paul Bridge & Terminal Railway Company, its easement being for right of way and other railroad purposes over the mentioned tract. The location of that line of railway left to the east thereof some 15 acres and to the west 47.55 acres, the latter area lying between the railway's right of way and the Mississippi river. Commissioners were appointed to appraise the damages for the taking. They duly qualified and proceeded to take testimony bearing upon the only question then remaining, i. e., that of damages to the landowner. While that proceeding was in progress, petitioner, being of the view that it was not then necessary to acquire all of the lot, was permitted to discontinue the proceedings in so far as the 15-acre tract lying to the east of the right of way was concerned. It was permitted to amend its petition so that the only property directly involved in respect of physical taking is that portion of lot 2 which lies to the west of the right of way extending westerly to the river, being the 47.55 acres sought and taken in these proceedings.

The involved property lies about 3 miles below the Robert street bridge, St. Paul, and locally bears the euphonious sobriquet of "Pig's Eye" or "Pig's Eye Island." Perhaps more than one-half of its area lies below the elevation of high-water mark as established by the federally built and maintained Mississippi River Improvement, generally referred to as the "Mississippi Nine-Foot Channel." The Hastings Dam, some 20 miles below St. Paul, was completed at the time the commissioners made their award. It is so constructed as to make the operating level at the highest point 689.1 sea level datum. As far as the record discloses, however, the present plans appear to call for pool level of 687.2 feet sea level datum. That matter, however, is not finally determined but ultimately must be decided by the federal government. At any rate, it is claimed by condemnor that much of the acreage must be raised by filling the lower lying portion to a sufficient height to bring it above the high-water level of the river.

The soil underlying the land sought is largely composed of "hard material" consisting of sand, gravel, and boulders underlain by sandstone. Not all of the land sought is so constituted, but there is no question that for the purposes sought by the condemnor it is the most suitable and economical site heretofore considered.

The land is uneven, and, as we have said, a large portion of it is below high-water levels. Buildings and other structures to be placed upon the property must be protected either by building a dike between the waters of the river in order to avoid high-flood levels or the area must be filled so as to bring it above such levels.

The right of way of the terminal railway was acquired by condemnation proceedings had in 1909. Mr. Fitzpatrick was then the owner of all of government lot 2 and also a large acreage adjacent thereto. In that proceeding there was reserved for his use and that of his successors in title and interest a crossing over the railroad track at a point within 300 feet of the north line of the lot. Access to the river was retained respecting that part of his land lying to the south and southeast of the railroad right of way. Later in 1923, the railway company purchased from him a small strip of land to the east of the right of way, amounting to 62/100 of an acre for which he was paid a consideration of $600. The proof respecting this sale was objected to by petitioner but was received over such objection. That feature will be discussed later in our consideration of that phase of the case.

The commissioners on June 8, 1935, awarded the landowner damages in the amount of $30,718.75. Both parties to the controversy were dissatisfied with the result so reached, and, as a consequence, both appealed to the district court for a jury's determination of the extent of the damages that should be allowed the owner. In his notice of appeal the owner claimed compensation for the land actually taken at "a fair market value of $142,650.00"; and in addition damages to 164 acres of land lying immediately to the west of the land taken in the amount of $30,000, that claim being based upon the alleged ground that he as the owner of this acreage was, by the taking, "deprived of Mississippi River frontage." Petitioner in its notice claimed that the award was "excessive, arbitrary, unreasonable and not warranted in law." The matter came before the court upon these cross-appeals and was tried before a jury, which rendered a verdict in favor of the owner in the amount of $89,241.92, as compensation for the taking of the area of 47.55 acres, and an additional sum of $15,000 for damages resulting to the owner's remaining property, a total of $104,241.92. The only issue in the case is the amount of damages that should be paid the owner.

As the landowner under our practice occupies the position of plaintiff and has the right to open and close (2 Dunnell, Minn. Dig., 2d Ed., § 3111), we shall hereafter refer to him as plaintiff and to petitioner as defendant.

1. The issue presented is not new, nor is there anything strange about it. It has been passed upon and determined in numerous cases. The rules governing the question are so well stated by Mr. Justice Butler in Olson v. United States, 292 U.S. 246, 254, 255, 256, 257, 54 S.Ct. 704, 708, 78 L.Ed. 1236, 1244, 1245, 1246, that we think it is quite appropriate to quote extensively therefrom:

"The judicial ascertainment of the amount that shall be paid to the owner of private property taken for public use through exertion of the sovereign power of eminent domain is always a matter of importance for, as said in Monongahela Nav. Co. v. United States, 148 U.S. 312, 324, 13 S. Ct. 622, 37 L.Ed. 463, 467: `In any society the fullness and...

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