Petition of Burnquist, 33902.

• Decision Date: 18 May 1945
• Docket Number: No. 33902.,33902.
• Citation: 220 Minn. 48,19 N.W.2d 394
• Parties: Petition of BURNQUIST, Atty. Gen. BURNQUIST, Atty. Gen., v. COOK.
• Court: Minnesota Supreme Court

19 N.W.2d 394

220 Minn. 48

Petition of BURNQUIST, Atty. Gen. BURNQUIST, Atty. Gen., v. COOK.

No. 33902.

Supreme Court of Minnesota.

May 18, 1945.

Appeal from District Court, Ramsey County; John W. Boerner, Judge.

Proceeding in the matter of the petition by J. A. A. Burnquist, Attorney General, for condemnation of certain lands owned by George Fuchs and another in Ramsey County, Minn., for highway purposes. From a judgment that the state acquire for public use all rights of ingress to and egress from trunk highway No. 36 of Emilie Gloe Cook and recover from her the sum of $15.36 costs and disbursements, Emilie Gloe Cook appeals.

Reversed and remanded for a new trial on the issue of damages.

John C. Zehnder and Worth K. Rice, both of St. Paul (John W. McConneloug and O. A. Blanchard, both of St. Paul, of counsel), for appellant.

J. A. A. Burnquist, Atty. Gen., Arthur Christofferson, Deputy Atty. Gen., and Harold S. Bjornstad and Bert McMullen, Sp. Asst. Attys. Gen., for the State.

THOMAS GALLAGHER, Justice.

Proceedings by the state to acquire by condemnation, under Minn.St.1941, § 161.03, Mason St.1927, § 2554, as amended, the easement of ingress to and egress from trunk highway No. 36, relating to a parcel of land belonging to appellant, Emilie Gloe Cook, and adjoining the north side of said highway. The proceedings resulted in a judgment for the state authorizing such condemnation. The question of appellant's damages for such taking was submitted to a jury, which returned a verdict that no damages had been sustained by her.

The judgment from which this appeal is taken decreed that the state acquire for public use all of appellant's right of ingress to and egress from said highway, and recover from her the sum of $15.36 costs and disbursements.

Trunk highway No. 36 runs in an easterly and westerly direction. It is intersected by Victoria street, which runs in a northerly and southerly direction. Appellant's land consists of a five-acre tract at the northwest corner of the intersection of these roadways, about one and one-half miles north of the St. Paul city limits. It extends west along the north side of highway No. 36 a distance of 1,320 feet and abuts on the westerly side of Victoria street a distance of 165 feet north of the intersection. It does not form any part of said highway. To the north and west, appellant's land is bounded by privately owned lands.

On the east portion of this land extending back about 300 feet west of Victoria street, appellant has her home, a garage, and certain installations for a trailer camp, including showers, toilets, laundry, and two wells. There are also fruit trees on this portion of the premises. This portion covers about 1.6 acres, leaving 3.4 acres extending some 900 feet to the west thereof. There is no way to reach this westerly portion except from highway No. 36 or from Victoria street through the part now used by appellant for her home and the trailer camp described. It is undisputed that this portion of the tract is suitable for subdividing, and that if right of access to highway No. 36 is taken as contemplated it will be necessary for appellant, before subdividing, to construct a road from Victoria street on the southerly portion of the entire tract.

Lexington avenue is parallel to Victoria street and one-half mile west thereof. Appellant's land extends west approximately one-half the distance between Victoria street and Lexington avenue. There are no present approaches to highway No. 36 from appellant's land or from the land west of it between Victoria and Lexington, on either side of said highway.

It is the purpose of the state to make highway No. 36 a "free-way" highway and, in this connection, to eliminate all cross-way traffic thereon between intersecting highways. Easements of access to land abutting on the south side thereof were extinguished at the time the highway was established in 1937. The highway was created on an entirely new right of way at that time. Land abutting on the north thereof was not acquired or directly involved in the original proceedings, and in consequence the easements of access which were then created and became appurtenant to such land were not involved or extinguished in the original proceedings. The present action relates not only to appellant's easements of access but to such easements of some 33 additional parcels along the north side of the highway, which upon completion will leave highway No. 36 a "free-way" highway.

Prior to the trial, commissioners appointed by the court awarded appellant $300 damages for the extinguishment of her easement of access to said highway. This award was rejected by her as inadequate, and the appeal to district court in consequence resulted. At the commencement of the district court proceedings, appellant moved to dismiss the same on the ground that the state highway commissioner was not authorized, either by statute or otherwise, to acquire by condemnation the easements of ingress and egress here involved. This motion was denied. As previously indicated, the jury awarded no damages to appellant.

On appeal, appellant contends (1) that the easements of ingress and egress are not subject to condemnation; (2) that the commissioner of highways under the Minnesota Constitution and statutes lacks power to condemn such easements; and (3) that the verdict of no damages is entirely inadequate and contrary to undisputed evidence.

1. This appeal presents questions not previously submitted to this court. The state, interested in building and developing modern highways, with safety a primary consideration in connection therewith, is abreast of other states in the construction of a number of "free-way" highways. Of necessity, such highways must be broad, with divided roadways separating traffic, with underpasses and cloverleaf intersections, and with crossway traffic thereon limited to certain definite points. Of this type of highway in other states, there is the Merritt Parkway in Connecticut, the Pennsylvania Turnpike in Pennsylvania, the Hudson River Parkway in New York, the Davison Avenue Limited and the Willow Run Expressway in Michigan, and the Arroyo Seco Free-Way in California. Trunk highway No. 10 between Anoka and Elk River in this state to some extent is a limited-access highway, abutting owners being permitted access to the same only at clearly defined intervals. Rights to provide separate roadways from subdivisions of such land abutting said highway have been eliminated.

Generally speaking, the power of eminent domain when properly exercised by the state extends to every kind of property within its jurisdiction, including the rights of access to and from a public highway. Minn.St.1941, § 117.02, subd. 2, Mason St.1927, § 6538, defines "taking" as applied to property in the following language: "The word `taking' and all words and phrases of like import include every interference, under the right of eminent domain, with the ownership, possession, enjoyment, or value of private property." (Italics supplied.)

Minn.Const. art. 1, § 13, provides: "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured."

Under these provisions, we have held that an "easement" is "property" and may be taken, within the meaning of the Constitution, and that a "private right of way" is "land" and that its destruction by the state for public purposes is authorized, provided the owner of the dominant estate to which it is attached is compensated therefor. 2 Dunnell, Dig. & Supp. § 3037; Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 39 N.W. 629, 1 L.R.A. 493, 12 Am. St.Rep. 644; United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680; Northern Pac. Ry. Co. v. Pioneer Fuel Co., 148 Minn. 214, 181 N.W. 341; United States v. Wheeler, 8 Cir., 66 F.2d 977; Appeal of Sowers, 175 Minn. 168, 220 N.W. 419.

It has further been held that eminent domain permits not only the taking of easements in land, including the right of access, but that, if properly exercised and upon payment of proper compensation, it permits the complete vacation of roads and streets which in many instances deprive the landowner of his easement of access thereto. See, State, by Peterson, v. Severson, 194 Minn. 644, 261 N.W. 469; Underwood v. Town Board of Empire, 217 Minn. 385, 14 N.W.2d 459.

The authorities outside of Minnesota seem to have reached similar conclusions. In Liddick v. City of Council Bluffs, 232 Iowa 197, 232, 5 N.W.2d 361, 379, which involved the erection of a viaduct on a city street destroying the access of abutting owners thereto, the court stated: "* * * The abutting owner has a proprietary right, or easement, of access in the street along his property, which is subordinate to the right of the state or of a city or town in and to said street, so that the municipality may destroy the right by vacating the street, or it or the state may substantially impair or interfere with that access or right of access by improving the street for the better service or safety of the public, but in either event compensation must be made to the abutting property owner for the injury sustained by him."

See, also, King v. Stark County, 66 N. D. 467, 266 N.W. 654; State ex rel. State Highway Comm. v. Hoffmann, Mo.App., 132 S.W.2d 27; Jones Beach Boulevard Estate v. Moses, 268 N.Y. 362, 197 N.E. 313, 100 A.L.R. 487.

While it is true that the creation of a public highway at the same time subordinates the land on which it is established to the easement of access insofar as abutting landowners are concerned, there is nothing in this fact which prevents the sovereign state from later extinguishing such easements in subsequent condemnation proceedings. As stated in 18 Am.Jur., Eminent Domain, § 88: "It may be stated as a general rule that, except where restricted by statute, a right or interest already owned in property...