Petition of Dreosch

• Decision Date: 23 February 1951
• Docket Number: No. 35204,35204
• Citation: 233 Minn. 274,47 N.W.2d 106
• Parties: Petition of DREOSCH et al. NORTHERN NATURAL GAS CO. v. BLUE EARTH COUNTY.
• Court: Minnesota Supreme Court

Page 106

47 N.W.2d 106

233 Minn. 274

Petition of DREOSCH et al. NORTHERN NATURAL GAS CO. v. BLUE EARTH COUNTY.

No. 35204.

Supreme Court of Minnesota.

Feb. 23, 1951.

Rehearing Denied April 10, 1951.

Wilson, Blethen & Ogle, Mankato, Lawrence I. Shaw, F. Vinson Roach, Omaha, Neb., for appellant.

Carl W. Peterson, County Atty., Smith, McLean & Peterson, Mankato, for respondent.

CHRISTIANSON, Justice.

Appeal from an order of the district court dismissing the appeal to that court by Northern Natural Gas Company from an order of the board of county commissioners approving and confirming the viewers' report awarding no damages to said appellant in connection with the establishment of county ditch No. 78, Blue Earth county.

Appellant is a private corporation, incorporated under the laws of the state of Delaware and authorized to do business in this state by virtue of a Certificate of Authority duly issued by the secretary of state. It owns, operates, and maintains a natural gas pipe-line system through which it transmits its own natural gas purchased or produced at fields in Texas and Kansas to points in several states, including Minnesota. It operates under a certificate of public convenience and necessity issued by the Federal Power Commission. ¹ Almost all of its gas is sold at wholesale to public utility distributing companies for resale. Except for permits obtained in the case of highway and railroad undercrossings, all of appellant's pipe lines are constructed across privately owned property, and in a few instances state-owned property, under authority of private right-of-way easements for natural gas transmission lines, obtained by grant for valuable considerations from the record owners of such property.

County ditch No. 78 was established by order of the county board for Blue Earth county on August 17, 1948. It is anticipated that it will furnish drainage for approximately 10,000 acres of agricultural land. In general, the ditch follows a natural swale through the area to be drained. Since 1939, appellant has maintained a 16-inch, all-steel, welded, high-pressure, natural gas transmission pipe line through the watershed area which county ditch No. 78 is intended to drain. ² This line is the main artery of appellant's system for transporting natural gas through south central Minnesota to Minneapolis and St. Paul, and serves as a source of supply for many communities en route. The proposed ditch will cross appellant's pipe line at three points. At each of these points, the pipe line was laid through privately owned lands by virtue of easements appellant secured from the owners by private grant. At two of the places where the pipe line intersects the proposed county ditch, there was, at the time appellant obtained its easements, a public ditch which had been established and constructed by the county many years prior thereto. At one point it consisted of a 16-inch drain tile, and at the other point there was a three-foot open ditch. At the third intersection, there was a privately owned open ditch and tile drain. Appellant's pipe line in no way interfered with the existing drainage ditch and tile systems at the points of intersection. It was laid three feet below the bottom of the three-foot open ditch and is four and five feet below the ground level at the two other locations.

County ditch No. 78 will be an open ditch considerably deeper than appellant's pipe line at the three points of intersection. It will be an enlargement and deepening of a natural watercourse for surface waters and will replace the existing drainage facilities at these three locations. The construction of the ditch will make it necessary for appellant to alter or reconstruct its pipe line by either raising or lowering the pipe at each of said crossings. This will require a substantial expenditure by appellant.

The viewers' report awarded no damages to appellant. Appellant appealed to the district court from the county board's order approving and confirming the viewers' report. Respondent (the county of Blue Earth) moved to dismiss the appeal upon the ground that it was appellant's uncompensated duty to reconstruct its pipe line to accommodate itself to the ditch. The district court granted respondent's motion. Appellant appeals from the order dismissing its appeal, contending that it is entitled to damages.

It is conceded that construction of the proposed ditch will provide more efficient drainage for the 10,000-acre watershed to be served thereby; that it is the only practical means of draining the area in question; and that it will be a public benefit and utility which will promote the public health and welfare. Appellant concedes that it is subject to the proper exercise of the police power of this state ³; but points out that it is not operating under authority of any special franchise granted by the state or local authorities and that under M.S.A. § 303.09 it has the same rights and privileges in this state as a domestic corporation organized for the same purposes. By virtue of appellant's articles of incorporation and by act of congress, 15 U.S.C.A. § 717f(h), it has the power of eminent domain.

The motion to dismiss the appeal was heard in the district court upon stipulated facts and certain oral testimony offered by respondent. It appears from the trial court's memorandum attached to its order dismissing appellant's appeal that it found that the construction of county ditch No. 78 constituted an enlargement and deepening of a natural watercourse and the present drainage facilities at the three locations in question; that appellant's easements were subject to the natural right of drainage; and that appellant was charged with notice that the natural watercourse and drainage facilities in existence when it obtained its easements and installed its pipe line might be improved and enlarged in the future. It concluded, therefore, that it was appellant's uncompensated duty to reconstruct its pipe line, and accordingly dismissed appellant's appeal.

Appellant contends that the evidence shows only that there was a prairie swale or depression at these locations before the present drainage facilities were installed. The testimony on this point is not too clear. The most that can be claimed from the evidence in this regard is that previously there was a well-defined natural watercourse for the drainage of surface water at these three locations. For purposes of this appeal, we will assume such to have been the fact. Respondent does not claim that there ever was a creek or river bed at the locations in question.

On appeal, appellant contends that it is entitled to damages because respondent in establishing the ditch was exercising its power of eminent domain, and that appellant's property has been taken or damaged for a public use within the provisions of the state and federal constitutions and the drainage laws of this state.

Respondent, on the other hand, contends that the maxim Damnum absque injuria is applicable because the establishment of a drainage system is the exercise of the police power functioning through the power of eminent domain, and that at the time appellant obtained its easements there was a natural right to drain the upper lands across the land covered by its easements, which right was part and parcel of said upper lands and one that appellant's grantors could not and did not convey.

1. In view of this court's decision in In re Town Ditch No. 1, 208 Minn. 566, 295 N.W. 47, there should be no question that respondent in establishing county ditch No. 78 was exercising its delegated power of eminent domain. This court there stated, 208 Minn. 571, 295 N.W. 49:

'* * * That our statutory drainage proceedings invoke the power of eminent domain is plain. That is why the statutes in such mandatory fashion require compensation for all damage done.

'* * * Their damage, if any, will result from the exercise of power of eminent domain. So it is immaterial that, from the standpoint of public health, the police power justifies the drainage. The property is taken or damaged, not by the police power, but by that of eminent domain. Hence, the right to compensation is absolute.' (Italics supplied.)

See, also, Lien v. Board of Co. Com'rs, 80 Minn. 58, 62, 82 N.W. 1094, 1095.

2. M.S.A. § 106.151, L.1947, c. 143, § 15, which was in effect at the time county ditch No. 78 was established, ⁴ provides in part as follows:

'The viewers, with or without the engineer, shall view All lands and Properties benefited or Damaged by the proposed drainage system and shall make their report thereon. (Italics supplied.)

'The viewers shall report all benefits and damages that will result to all railways and other utilities, including lands and property used for railway or other utility purposes.

'* * * to the state of Minnesota and all counties and other municipal corporations resulting from the proposed drainage system. When any public road or street shall be found to be benefited or damaged, the state or the county, or other corporation, which is by law charged with the duty of keeping such road or street in repair, shall be assessed or allowed the amount of benefits or damages accruing to such road or street; except that benefits and damages assessed and allowed for bridges or culverts shall be assessed and allowed to the state, county or other municipal corporation which is by law charged with the duty of constructing and maintaining such bridge or culvert as required by section 106.271.'

Minn.Const. art. 1, § 13, M.S.A., provides: 'Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.' ⁵

Although appellant does not own the fee title to the real estate here involved, it does own an easement in the land in each instance. An easement is Property, and when taken for public use the owner ordinarily is entitled to compensation. Adams v. Chicago B. & N.R....