State by Lord v. North Star Concrete Co.,Parcel Channel Change N. 26

• Decision Date: 07 June 1963
• Docket Number: No. 38671,38671
• Citation: 265 Minn. 483,122 N.W.2d 118
• Parties: STATE of Minnesota by Miles LORD, its Attorney General, Respondent, v. NORTH STAR CONCRETE COMPANY, PARCEL CHANNEL CHANGE NO. 26, Appellant.
• Court: Minnesota Supreme Court

Page 118

122 N.W.2d 118

265 Minn. 483

STATE of Minnesota by Miles LORD, its Attorney General, Respondent, v. NORTH STAR CONCRETE COMPANY, PARCEL CHANNEL CHANGE NO. 26, Appellant.

No. 38671.

Supreme Court of Minnesota.

June 7, 1963.

Syllabus by the Court

1. Minn.St. 161.20 vests in the commissioner or highways authority to acquire lands for highway purposes by condemnation proceedings and to determine initially therein the extent of the taking, including the interest or estate to be acquired.

2. Since the owner of lands taken for highway purposes is entitled to 'just compensation' under Minn.Const. art. 1, § 13, an initial determination by the commissioner of highways to take less than the fee is not binding on either the owner or the court where evidence supports a finding that, as a result of the taking, the owner is deprived of all practical beneficial use of the lands taken or that the interest acquired as a matter of law amounts to a fee.

3. In a condemnation proceeding instituted to acquire lands for relocating a portion of the channel of a navigable river, such relocation being deemed necessary for the construction of a state highway, the commissioner of highways sought to limit the interest taken to an easement rather than a fee. Held that, with respect to the bed of the river as artificially relocated, § 465.18 vests the title thereto in the state and deprives the owner of all beneficial use, and as a matter of law, results in the taking of the fee, rendering the commissioner's action in limiting the interest taken unreasonable and arbitrary.

Smith, McLean, Peterson & Sullivan, Mankato, for appellant.

Walter F. Mondale, Atty. Gen., R. O. Slen, Deputy Atty. Gen., Joseph Perry, Sp. Asst. Atty. Gen., St. Paul, for respondent.

ROGOSHESKE, Justice.

Appeal from an order denying a new trial in a condemnation proceeding wherein the state seeks to acquire lands for relocating a portion of the channel of a navigable river, such relocation being deemed necessary for the construction of a major trunk highway.

The appellant is the owner of a 23-acre tract of land in Blue Earth County located on the Minnesota River immediately south of North Mankato. The north boundary of the tract is the south shore line of the river. In order to locate Highway No. 256 along the north bank of the river in North Mankato, the commissioner of highways determined to change the channel of the river by moving it southerly upon appellant's lands. For this purpose, the taking of 9.24 acres of its property was deemed necessary. The petition originally alleged that it was necessary to acquire the fee interest in the land but was thereafter amended so as to allege that only an easement over appellant's land was sought. The owner moved to set aside the amended petition, objecting to a taking of less than the fee. After a hearing, its objection was overruled and the change in the petition was allowed to stand. Commissioners appointed by the court awarded the owner $80,000. The state and the owner filed cross-appeals. The jury awarded the owner.$19,000 for the land taken and $2,500 as damages to the 13.76 acres remaining. The owner appeals from a denial of its motion for a new trial.

Prior to trial, the owner, by motion for summary judgment, requested the court to declare that the taking, although designated as an easement, amounted to a taking of the fee interest. This motion was denied. Upon trial, the owner, by cross-examination of the state's witness and otherwise, sought to establish that the nature of the state's taking deprived the owner of all practical, beneficial use of the entire 9.24 acres taken, and therefore amounted to a taking in fee. The state resisted this contention, insisting that only an easement was taken with the owner retaining the fee and 'the right to use said lands for any purpose not inconsistent with the purposes for which the land is acquired.' At the close of the testimony, and pursuant to the state's request, the court indicated that the jury would be instructed in line with the state's contention. However, the charge to the jury, read as a whole, permitted the jury to determine the nature and extent of the state's taking. It allowed the jury to determine from the evidence what, if any, use the owner could make of the 3.24 acres constituting the relocated bank of the channel, and further advised the jury that the owner could continue to use the 6 acres constituting the new bed of the river in the same manner it had used the old bed of the river prior to the taking, namely, by securing permits from the Minnesota Department of Conservation to mine gravel. The effect of this submission amounted to a denial of both the state's and the owner's contentions.

The area taken is difficult to describe. It is irregular in shape and is comprised of the south riverbank, together with adjacent lowland. The owner had used the land in the operation of its gravel-washing plant which was located generally on the westerly part of the 23-acre tract and immediately south of the specific acreage condemned by the state. There were no improvements or installations on the 9.24 acres except a haul road and a dam. Much of the lowland was covered with trees, brush, and ordinary dumpings. The drainage of silt across this land had resulted in large accumulations of material described as overburden. On a part of the land the overburden had been stripped away and the underlying gravel mined. A sump pond or settling pond was located on the part taken, as well as certain weights or anchors to which cables necessary to some part of the plant operation were attached. There was also a reserve pile of gravel, referred to as a surge pile, which stored mined gravel for processing in the plant during spring when mining operations could not be carried on.

The questions raised on appeal are whether, as urged by the owner, Minn.St. 465.18 renders the state's taking a taking in fee as a matter of law; whether the cost of changes in its gravel-washing plant necessitated by the state's taking is admissible on the issue of damages; and whether the expert opinion given by a witness testifying on behalf of the state, as to the value of gravel deposits in the land taken, was based on an improper foundation.

The legislature has vested the commissioner of highways with authority to exercise the sovereign power of the state to acquire lands for state highways and to determine the necessity and to designate the extent of and the interest in the lands to be taken. ¹ The commissioner's determinations with respect to the necessity, as well as the extent of the taking including the interest to be acquired, are subject to a limited review by the courts. As we said in State, by Mondale, v. Ohman, 263 Minn. 115, 119, 116 N.W.2d 101, 104:

'* * * the courts may not interfere * * * if his determinations have a reasonable basis and are not arbitrary, capricious, or discriminatory.'

In answering the first question, we are concerned with the commissioner's power to limit the interest or estate taken under the facts disclosed. Section 161.20, subd. 2, provides that the...