State by Attorney General v. Wren Inc., 40175

• Decision Date: 04 November 1966
• Docket Number: No. 40175,40175
• Citation: 275 Minn. 259,146 N.W.2d 547
• Parties: STATE of Minnesota by its ATTORNEY GENERAL, Respondent, v. WREN INC., et al., Respondents-below, Imperial Refineries, Parcel 242--B, Appellant.
• Court: Minnesota Supreme Court

Page 547

146 N.W.2d 547

275 Minn. 259

STATE of Minnesota by its ATTORNEY GENERAL, Respondent, v. WREN INC., et al., Respondents-below, Imperial Refineries, Parcel 242--B, Appellant.

No. 40175.

Supreme Court of Minnesota.

Nov. 4, 1966.

Syllabus by the Court

In a state-instituted highway condemnation proceeding, objections by the landowner to the state's right to take must be asserted at the hearing on the petition to condemn. The intermediate order granting the petition thereafter governs the rights acquired by the state, and upon appeal from the commissioners' award based thereon, the only issue is the damages sustained by the taking.

Marshall S. Snyder, Minneapolis, for appellant.

Robert W. Mattson, Atty. Gen., Frederick W. Lambrecht, Asst. Atty. Gen., and Perry Voldness, Deputy Atty. Gen., St. Paul, for respondent.

OPINION

ROGOSHESKE, Justice.

Appeal from a judgment in a state highway condemnation proceeding.

Appellant, Imperial Refineries, is the owner of an unimproved, triangular, 3.20-acre tract of land adjoining Trunk Highway No. 13. The tract has approximately 1,026 feet of frontage upon the highway. On July 9, 1964, the attorney general, upon the request of the commissioner of highways, filed a condemnation petition for the purpose of widening and improving the highway. Included in the petition was the commissioner's determination that it was necessary to acquire an easement over 1.11 acres of appellant's land for the purpose of constructing a frontage road along part of the tract and to acquire the right of access for the remainder of the property adjoining the highway. Appellant answered, alleging that title to the property was registered in its name under a Torrens proceeding in 1949 wherein the state was a defaulting party-defendant and that therefore the state has no 'right by eminent domain or otherwise' to acquire the right of access or any rights in the property.

At a hearing before the district court appellant offered proof of its registered title and objected to the taking. Thereafter, on September 8, 1964, on the basis of a finding that the taking was necessary and authorized by statute, the court granted the petition and appointed commissioners to assess and award damages. The order limited the estate acquired by the state to an easement for highway purposes over the 1.11 acres described in the petition and to the right of access to the highway from all of appellant's tract not acquired in the proceeding.

On December 15, 1964, before the commissioners filed their report, appellant moved the court 'for an order vacating the original order made herein to the extent that' a proposed amended answer might be filed. This motion, which the court granted January 16, 1965, permitted appellant to file, and the state to reply to, an amended answer. The amended answer reasserted the defense of title registration and contained new allegations that, because of the effect of a denial of access upon appellant's proposed use of the land as a retail gasoline station, the taking of access was unnecessary, 'arbitrary, discriminatory and capricious.' Despite this, the order allowing the amended answer to stand did not by its terms vacate the appointment of the commissioners or nullify the order granting the state's petition to acquire the easement and right of access.

On December 16, 1964, the commissioners filed their report, which contained the following with respect to appellant's tract:

'We, the undersigned commissioners, under the authority vested in us under Chapter 117.08, reserve to the owner access to Trunk Highway 13 from the owner's adjoining property * * *. If such right is granted by the state of Minnesota, Department of Highways, the award shall be $13,941.00. If the right specified is withheld or denied by the state of Minnesota and the remaining lands have no direct access to Trunk Highway 13, the award shall be $19,371.00.'

Upon receipt of the notice of the award, appellant notified the state that it accepted the alternative award of $13,941. On January 8, 1965, without having made its election as contemplated by the alternative award, the state appealed to the district court on the ground that the award of $19,371 was excessive and that the commissioners had no authority to make an alternative award. Appellant also appealed, asserting among other grounds that the award of $19,371 was inadequate and that appellant has the right to have the issue of the necessity and propriety of acquiring access determined by a jury.

When the appeals came on to be heard by the district court and a jury, the state moved to annul the award based on appellant's retention of the right of access and to limit proof to that bearing on the damages occasioned by the taking including the right of access, as authorized by the intermediate order granting the petition and appointing commissioners. This motion was granted. Appellant's requests to submit to the jury the issues of whether access should be allowed or denied and the question of whether the taking was arbitrary and capricious were denied. Appellant then indicated its intention to seek review of these rulings by this court. Thereupon the parties entered into a stipulation fixing the damages for the taking of the easement and access at $19,300 unless the rulings of the trial court were reversed upon the owner's contemplated appeal.

Following denial of appellant's subsequent motions for a new trial or vacation of the orders made by the court on the foregoing motions, judgment was entered and this appeal followed.

It is evident from the foregoing that appellant misconceives the proper time to challenge the power to take lands for public use in a condemnation...