Minnesota Power & Light Co. v. State

• Decision Date: 26 April 1929
• Docket Number: No. 27432.,27432.
• Citation: 177 Minn. 343,225 N.W. 164
• Parties: MINNESOTA POWER & LIGHT CO. v. STATE.
• Court: Minnesota Supreme Court

225 N.W. 164

177 Minn. 343

MINNESOTA POWER & LIGHT CO. v. STATE.

No. 27432.

Supreme Court of Minnesota.

April 26, 1929.

Appeal from District Court, Carlton County; E. J. Kenny, Judge.

Proceedings by the Minnesota Power & Light Company to condemn a perpetual easement over state-owned lands. Judgment for petitioner, and the State appeals. Reversed, with directions.

G. A. Youngquist, Atty. Gen., W. H. Gurnee, of St. Paul, and W. K. Montague, Asst. Atty. Gen., for the State.

Washburn, Bailey & Mitchell, of Duluth, for respondent.

OLSEN, C.

Appeal by the state from a judgment in condemnation proceedings. The respondent Minnesota Power & Light Company seeks to condemn a perpetual easement over state-owned lands in the Jay Cooke State Park for a power line for transmitting electric current. Respondent is a public service corporation owning and operating a water power and plant on the St. Louis river near the village of Thomson and other like plants at places in the northern part of this state. These plants are connected by transmission lines into one system. Power or transmission lines extend from these plants into different municipalities, and electric current is thereby distributed and sold to municipalities and private parties for light and power.

Jay Cooke State Park was established by chapter 374, Laws 1915, whereby the lands to be acquired therefor by the state were to be and were forever dedicated to the public use and to be suitably improved and maintained as a public park. It is further provided by section 6459, G. S. 1923, that state parks shall be preserved and maintained for the free use and enjoyment of the general public. Sections 5615 and 5616 protect game birds and quadrupeds in state parks and prevent hunting therein. Section 6462 makes it a misdemeanor to willfully cut, injure, or destroy live trees, shrubs, evergreens, or ornamental plants therein. The park was duly established and is being maintained as a state park under the laws of the state. The policy of the state, as indicated in these and other laws, is to preserve and maintain state parks intact and free from interference or change, except by such improvement in the way of enhancing their natural attractiveness and usefulness for the public as the state may deem best. The intent seems clear that no other interference with park property was intended, except in case of clear necessity.

The state, appellant here, contends that lands owned by the state and dedicated and used as a state park cannot be taken under the right of eminent domain by a public service corporation; that there is in our laws no express or clearly implied authority for such taking.

It is well settled that property owned by the state cannot be taken under the right of eminent domain, except under authority expressly conferred by the Legislature or clearly implied from statutory provisions. A general power to condemn lands is not sufficient. The decisions are practically unanimous on this proposition and need not be cited. The cases of Matter of Utica, 73 Hun, 256, 26 N. Y. S. 564, and State v. Boone County, 78 Neb 271, 110 N. W. 629, 15 Ann. Cas. 487, may be cited as indicating the historical source of the rule.

In this state, however, the decisions in the two university cases, In re St. Paul & N. P. Ry. Co., 34 Minn. 227, 25 N. W. 345, and University of Minnesota v. St. Paul & N. P. Ry. Co., 36 Minn. 447, 31 N. W. 936, and the case of Independent School District v. State, 124 Minn. 271, 144 N. W. 960, determine that, by the provisions of chapter 53, Laws 1872, as partly carried into the revision of 1905, and found in section 6541, G. S. 1923, there is granted by implication in general terms authority to condemn for public use state-owned lands not already devoted to and actually used by the state for a public or governmental purpose or enterprise. A distinction is made in some cases between lands held by the state in a proprietory capacity, such as school and swamp lands held for sale, and lands held for some specified governmental purpose or trust, whether in use or not. The case of State ex rel. Gotzian v. District Court, 77 Minn. 248, 79 N. W. 971, may be noted. This distinction was disapproved in Independent School District v. State, supra. The use of the land and the purpose for which used have been applied as the test in this state.

When we come to land dedicated by the state, or one of its governmental agencies, for a specific public use and actually in use for the specified purpose, the rule is that general authority to condemn state-owned lands is not sufficient. In such case there must be legislative authority, expressly given or clearly implied, to take lands so dedicated and used. "The presumption is that authorized public uses are not to be interfered with under mere general terms of federal or state legislation." United States v. Certain Land (C. C.) 165 F. 783; McCullough v. Board of Education, 51 Cal. 418; Atlanta v. Central R. & B. Co., 53 Ga. 120; St. Louis, J. & C. R. Co. v. Trustees, 43 Ill. 303; Edwardsville v. Madison County, 251 Ill. 265, 96 N. E. 238, 37 L. R. A. (N. S.) 101; B. & O. & C. R. Co. v. North, 103 Ind. 486, 3 N. E. 144; City of St. Louis v. Moore, 269 Mo. 430, 190 S. W. 867; State v. Montclair R. Co., 35 N. J. Law, 328; In re Rosebank Avenue, 162 App. Div. 332, 147 N. Y. S. 638; In re New York etc., R. Co., 20 Hun, 201; Matter of City of Buffalo, 68 N. Y. 167; State v. Cincinnati, etc., R. Co., 37 Ohio St. 157; Oregon R. R. Co. v. Portland, 9 Or. 231; Appeal of Tyrone Tp. School Dist. (Pa.) 15 A. 667; Winona & St. P. R. Co. v. Watertown, 4 S. D. 323, 56 N. W. 1077; Rockport, etc., R. Co. v. State (Tex. Civ. App.) 135 S. W. 263; State v. Kittitas County, 107 Wash. 326, 181 P. 698; In re Milwaukee S. R. Co., 124 Wis. 490, 102 N. W. 401. This rule is recognized and applied in our decisions hereinbefore cited. In both of the university cases, the fact that the land sought to be taken was not devoted to or in use, and not held for any public purpose, was emphasized. In the second university case, the land was not owned directly by the university or the state. The court said: "If the university had acquired the title, or the property had been authoritatively purchased and held for its use, doubtless these lots would not have been subject to condemnation proceedings. The case of land or lots held for sale under legislative authority presents an entirely different question."

In the Independent School District Case, the court, after pointing out that the land there sought to be condemned was school land held by the state for sale, and that compensation paid in the condemnation proceeding answered all of the purposes of a public sale under the constitutional provision, refers to the second university case and points out that: "The court there differentiated between state lands in actual use and those not in use and subject to sale, holding, as to the latter, that they might be appropriated in condemnation proceedings. We follow and apply that decision."

Other reasons for holding that there is no clearly implied authority for the condemnation of any part of or easement over or in state park lands are readily seen. The express dedication and use of the lands for park purposes only, the careful guarding of such parks from destruction of trees, shrubs, and plants therein, the exclusion of firearms and hunting therefrom, fairly indicate an intention to preserve these parks free from any easements or interference.

The authority of public service corporations to take land or easements therein is found in sections 7433, 7535, G. S. 1923. The first section authorizes condemnation of private property only. The second section is general in terms and does not contain this restriction. Except for the implied authority found in section 6541, as hereinbefore noted, there would be no authority to condemn state-owned lands. But there is no indicated intent in either of these statutes to permit condemnation of lands owned by the state and dedicated and actually used by the state for a designated public purpose. The legislative intent rather appears to the contrary, for it was thought necessary, by chapter 368, Laws 1919, to authorize school districts to construct schoolhouses on state park lands. As to lands already in use for right of way of railroads, it was found necessary to grant special authority for telephone and telegraph companies to run their lines upon such right of way, under the restrictions provided in section 7535.

Where a corporation is authorized in general terms to construct a railway, telephone, telegraph, or power line, extending from one place to another, or generally, and to condemn lands or easements for such purpose, it usually cannot carry out the purposes of its franchise without crossing property already devoted to some public use, such as other railways, highways, and lines. In such cases it is usually held that it has implied power to condemn right of way or easements for crossing such other railways or lines. Providence, etc., R. Co. v. Norwich R. Co., 138 Mass. 277; State v. Montclair R. Co., 35 N. J. Law, 328; Wilson v. East Jersey Water Co., 78 N. J. Eq. 329, 79 A. 440; In re Milwaukee S. R. Co., 124 Wis. 490, 102 N. W. 401; 10 R. C. L. 199. In this state, express authority for railroads to cross other railroads is conferred by section 7524, G. S. 1923. The implication arises only when it appears that the condemner could not reasonably carry on its franchise powers without the appropriation. 20 C. J. 603. There is a distinction between power merely to cross a railway or other line and authority to construct a railway or line longitudinally upon or through property already devoted to a public use. Easthampton v Hampshire County Com'rs, 154 Mass. 424, 28 N. E. 298, 13 L. R. A. 157. A railroad company in this state has no power to appropriate the property of another such company, except for crossing purposes. ...