State v. Werder, 31025.
| Decision Date | 04 June 1937 |
| Docket Number | No. 31025.,No. 31026.,31025.,31026. |
| Parties | STATE, by PETERSON, Atty. Gen., v. WERDER et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Redwood County; A. H. Enersen, Judge.
Condemnation proceeding by the State by Harry H. Peterson, Attorney General, against Herman G. Werder and others, wherein Elsie M. Appleton intervened, and Herman G. Werder and others, as taxpayers filed a petition against the Commissioner of Highways, the Attorney General, and Elsie M. Appleton, for an order to show cause why a stipulation for the purchase of property of Elsie M. Appleton and the deed of property by Elsie M. Appleton to the State should not be annulled, and why the Commissioner of Highways and the State Auditor should not be enjoined from paying to Elsie M. Appleton any sum in excess of amount awarded by commissioners. From an adverse judgment in favor of the petitioning taxpayers, the State, by Harry H. Peterson as Attorney General, and Elsie M. Appleton appeal.
Affirmed.
H. H. Peterson, Atty. Gen., Ordner T. Bundlie, Asst. Atty. Gen., John E. Katzmarek, Sp. Asst. Atty. Gen., for appellant Harry H. Peterson, Atty. Gen.
Murphy, Johanson & Winter, of Wheaton, Minn., for appellant Elsie M. Appleton.
Daly & Barnard, of Renville, for respondent King.
Charles Foster, of St. Paul, for respondent Schmahl.
A. C. Dolliff, of Redwood Falls, and A. R. English, of Tracy, for intervening taxpayers-respondents.
This highway condemnation proceeding comes up on appeals by the Attorney General and an interested property owner from a judgment enjoining the expenditure of state money and for some incidental relief.
The case has to do with trunk highway No. 19, formerly constitutional trunk highway No. 14, where it enters the city of Redwood Falls from the west and just after it crosses the Redwood river. The crossing is at the point where the river on its northerly course is dammed to make Lake Redwood. The highway crosses Minnesota street, running north and south, just east of Redwood Lake and the highway bridge over the river. The residence property, at the southwest corner of that intersection, in area 115 by 70 feet, is owned by appellant Elsie Appleton.
The proceeding was commenced to condemn land of other owners. The Appleton lot was not then included, but later Mrs. Appleton intervened, claiming that it would be permanently damaged by the highway, and had her damages fixed by commissioners at $3,000. From that award, the Attorney General appealed.
January 11, 1936, there was filed a stipulation bearing date of October 15, 1935, executed by the Attorney General and the attorney for Mrs. Appleton. It recited the award and went on to state that the whole matter of the appeal and the award was "adjusted, compromised and settled in the sum of $8,000.00," to be paid to the said Elsie Appleton and her attorneys. Mrs. Appleton was bound to convey her property to the state free of incumbrances, but with the right reserved to her to "remove all buildings, structures and appurtenances * * * except foundation from said premises on or before June 1, 1936." Subsequently, on or about January 17, 1936, Herman G. Werder, who had already appeared in the proceeding with A. J. White and S. B. Duea, who had not otherwise appeared therein, filed a petition for an order to show cause against the commissioner of highways, the Attorney General, and Mrs. Appleton, why the stipulation and the deed of the Appleton premises (by that time the property had been conveyed to the state) should not be annulled, and why the commissioner and the state auditor should not be enjoined from paying to Mrs. Appleton "any sum in payment of the damages claimed to have been sustained by her in excess of the amount awarded by such commissioners * * * together with legal interest." An order to show cause was issued accordingly, the moving taxpayers appearing in support of the petition, and the Attorney General in opposition, both for himself and the commissioner of highways. The state auditor and state treasurer also appeared, not as active litigants, but, in substance, asking the decree of the court as to their duty in the premises in respect to the payment of the $8,000 promised Mrs. Appleton, by her stipulation with the Attorney General and Highway Department.
The decision below was for the so-called intervening taxpayers and against the Attorney General and commissioner of highways. The commissioner, auditor, and treasurer were restrained from paying Mrs. Appleton any money whatsoever pursuant to the stipulation or otherwise. The stipulation of settlement was ordered vacated and the Appleton deed annulled. From the resulting judgment, these appeals are taken.
1. The first question is one of procedure. The three taxpayers, upon whose petition the order to show cause issued, are not interveners in the technical sense. They did not apply for leave to intervene under Mason's Minn.St.1927, § 9263, permitting intervention by "any person having such an interest in the matter in litigation between others that he may either gain or lose by the direct legal effect of the judgment therein." Much difficulty might have been avoided if the plainly blazed and long-traveled statutory trail had been followed. But the resulting question raises a difficulty apparent rather than real.
As to the physical subject matter, jurisdiction in rem is not questioned. The court automatically got jurisdiction, regardless of the identity or number of the individuals who appeared personally, for the purpose of orders or judgments binding in personam any or all who did so appear.
There can be no question that the three taxpayers could have sought injunctional relief in an appropriate separate action. This proceeding being in rem, the judgment entered not beyond the power of the court, and the only question being as to those who might ask for it, we perceive no reason why taxpayers should not be permitted to appear, in any proper manner, to invoke judicial action. Generally, "it is not absolutely essential that a person shall be a party to an action in order that he may be allowed to make a motion therein". 19 R.C.L. 673. That rule was applied in Haley v. Eureka County Bank, 21 Nev. 127, 26 P. 64, 12 L.R.A. 815, so as to permit an attorney to move for the dismissal of an action on the ground of collusion, although he did not represent any party to the case.
The Attorney General's denial of jurisdiction cannot be sustained because the court, having jurisdiction of the subject matter in rem, acquired jurisdiction in personam over all the parties as they entered their personal appearances. We do not forget that the Attorney General by a special appearance has preserved his right to question jurisdiction. It was of no avail for reasons already noted. Once a highway condemnation proceeding is started, neither the state nor the commissioner of highways, who institutes the action on behalf of the state through the Attorney General, can claim to be, in personam, beyond the court's reach as to any order or judgment within the ambit of the proceedings. Equally plain it is that any other litigant appearing in personam, as did the state auditor and state treasurer in this case, is before the court in similar fashion. The court has power to make, in personam, as against all parties before it, any order or to enter any judgment which is appropriate to the case and within the field of judicial inquiry thereby presented. In sum, this preliminary question is not one of jurisdiction. Rather and only, it was one of procedure. In consequence, the irregularity, if any, falls far short of presenting any cause for reversal.
2. The center line of the relocated highway was first fixed by formal order of the highway commissioner. Later came another, fixing the width north of the Appleton property at 100 feet, 50 feet on each side of the center line. That line, as fixed by the first order, remains unchanged. It is parallel to, and more than 50 feet north of, the north boundary of the Appleton property, all of which is outside the right of way.
We cannot allow the argument that because, after the orders locating and fixing the width of the highway, the commissioner purchased the Appleton property, it automatically became a part of the right of way. Action by the commissioner of highways in locating a highway and fixing boundaries for the right of way must be taken conformably to the statute (Mason's Minn.St.1927, § 2554(4), by formal written order. In this case, the only orders of the commissioner exclude the Appleton lot from the right of way.
It certainly was not the intention of the statute, and would thwart the expressed will of the lawmakers, to hold, that after a right of way has been designated, and without more, the commissioner may buy as much additional land adjoining the highway as he thinks necessary and thereby make it part of the right of way. To follow such a course, or to allow it to be followed, would by so much transgress the plain mandate of section 2554, subdivision 1 of which limits the acquisition of land to "necessary right of way," and subdivision 4 of which requires designation of "the final and definite location of any trunk highway" by formal, written order. Subdivision 9 of the same section contemplates that all such orders shall become and remain of public record in the office of the commissioner. They are of such importance and dignity that certified copies are made "evidence in any court in this state with the same force and effect as the originals."
It is argued that in locating a new, or widening or relocating an old, right of way, he may first acquire the ground "necessary," and consequently "needed" (Mason's Minn.St.1927, § 2554), by purchase and then make his definitive order.
That course may often be permissible and even wise in the mechanics of administration. But it is difficult to see how it can be known what additional...
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