Thomsen v. State by Head, 41576

• Decision Date: 05 September 1969
• Docket Number: No. 41576,41576
• Citation: 284 Minn. 468,170 N.W.2d 575
• Parties: Fred L. THOMSEN, Respondent, v. STATE of Minnesota, by Douglas M. HEAD, its Attorney General, Appellant.
• Court: Minnesota Supreme Court

Page 575

170 N.W.2d 575

284 Minn. 468

Fred L. THOMSEN, Respondent, v. STATE of Minnesota, by Douglas M. HEAD, its Attorney General, Appellant.

No. 41576.

Supreme Court of Minnesota.

Sept. 5, 1969.

Syllabus by the Court

1. Plaintiff, as a matter of law, failed to establish that he had been deprived of his right of suitable and convenient access to a newly constructed highway, that snow had been plowed from the highway onto his property, or that the lowered grade of the highway had deprived his house of lateral support to such an extent that any property right of his had been taken or damaged within the meaning of Minn.Const. art. 1, § 13.

2. Although an adjoining property owner ordinarily cannot compel the state to condemn his property solely because its value is decreased by the noise and light from traffic on a newly constructed highway, whether the annoyance and hazard caused by the highway, given the highly unusual facts of this case, amount to such an unfair, direct, substantial, and peculiar injury to plaintiff's property that it has been damaged in the constitutional sense is a question of law which should have been determined by the trial court in the first instance.

3. A judgment in a mandamus action brought by an omitted property owner to compel the state to condemn his property involves a final determination upon the issue of whether the property has been taken or damaged in the constitutional sense and, thus, is appealable as a matter of right under Rule 103.03(a), Rules of Civil Appellate Procedure.

Douglas M. Head, Atty. Gen., Donn D. Christensen, Deputy, Atty. Gen., James M. Kelley, Sp. Asst. Atty. Gen., Richard H. Kyle, Sol. Gen., St. Paul, for appellant.

Spellacy, Spellacy & Lano, Grand Rapids, for respondent.

OPINION

PETERSON, Justice.

Appeal from a judgment directing the state to commence condemnation proceedings against plaintiff's land.

In 1954 plaintiff, a Coleraine building contractor, began constructing a home for himself on a triangular lot in the village of Coleraine. This lot was bounded on two sides by opened, usable streets, and the third side abutted on Corey Avenue, a street dedicated in 1906 but never opened. Coleraine had no building code, but plaintiff got permission from the village engineer to construct this house at a site on his lot which was marked out by stakes. Apparently both plaintiff and the engineer failed to anticipate that Corey Avenue would ever be opened as a public street or highway since the house was knowingly built touching or encroaching slightly upon its right-of-way.

In 1958 the state began engineering studies preparatory to construction of a new route for Trunk Highway No. 169 around and through the village of Coleraine. Plaintiff's house and several buildings owned by others were located directly in the path of the originally proposed route. Therefore, the highway centerline was moved to the north and west so that its traveled portion would not cross plaintiff's land. Plaintiff's house would still have been within the normal right-of-way of the highway, however, if the state (in an apparent attempt to avoid physically appropriating any of plaintiff's property and the consequent necessity of condemning it) had not narrowed the right-of-way so that as the highway passed plaintiff's home it was entirely within the right-of-way of Corey Avenue. ¹

When the four-lane trunk highway was completed, the traveled portion passed within 10 feet of the bedroom of plaintiff's home, and the right-of-way was within 5 feet thereof. In addition, the grade of the highway was lowered slightly below the level of plaintiff's property, and a wire fence was erected between the highway and plaintiff's home. Even before construction of the highway, plaintiff, protesting that it would pass too close to his home, asked the highway department to change the route of the highway or otherwise to pay him damages or to purchase his property. The highway was constructed as planned, but the state refused either to condemn plaintiff's property or to pay him damages.

Plaintiff then brought this action, in essence seeking a writ of mandamus compelling the state to institute condemnation proceedings against his property pursuant to Minn.St. c. 117 on the ground that he was damaged by diminution in the postconstruction market value of his property. This diminution, he claimed, was due to (1) loss of his right of access to the highway occasioned by the construction of the wire fence; (2) snow piled on his property as the result of plowing the highway during the winter; (3) loss of lateral support due to the lowered grade of the highway; and (4) the increased volume, speed, and noise of traffic around his house.

The trial court, after hearing, ordered the state to institute condemnation proceedings based upon this finding:

'That by its actions as aforesaid, the State of Minnesota May have caused consequential damages to the Plaintiff-Petitioner's property owner's right which may be peculiar to him and not to the general public.' (Italics supplied.)

The state immediately filed an appeal but then, because of doubt that the judgment was appealable as of right, petitioned for and received permission from this court to appeal under Rule 105, Rules of Civil Appellate Procedure.

1. Minn.Const. art. 1, § 13, as amended in 1896, provides: 'Private property shall not be Taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.' (Italics supplied.) The undisputed evidence amply sustains the trial court's finding that there was no actual physical taking of plaintiff's property. Neither the roadway itself nor the right-of-way actually encroached upon plaintiff's property. However, even though none of plaintiff's property was actually physically appropriated, the state can still be ordered to institute condemnation proceedings if the construction or use of the highway 'damaged' plaintiff's property in the constitutional sense. Hendrickson v. State, 267 Minn. 436, 127 N.W.2d 165; State by Lord v. Casey, 263 Minn. 47, 115 N.W.2d 749; 4 Nichols, Eminent Domain (Rev. 3 ed.) § 14.1(1).

Plaintiff does not contend that there has been any physical damage to his house as the result of the construction or use of the highway. ² He does, however, argue that he is entitled to damages for a taking of his right of access to the new highway, citing Hendrickson v. State, Supra. However, since there never had previously been an opened street or highway along this side of plaintiff's property, the state took no existing access from plaintiff. In addition, although the new highway has not been formally designated as a 'limited access' highway, plaintiff has never requested that the state allow him direct access from his property. Therefore, it is clear that plaintiff has not established that he has been deprived of any right of access for which he should have been compensated. ³

Plaintiff also contends that his property has been damaged because during the winter snow would likely be plowed up onto his property from the highway. Plaintiff's testimony, however, indicates that at the time of the hearing no snow had ever actually been piled on his property due to plowing of the highway, even though a winter had passed since the highway was opened. Plaintiff introduced no evidence on the precise amount, if any, by which any future plowing would reduce the market value of his property. Therefore, any award based on this claim would be purely speculative. Remote, conjectural, or speculative damages are not recoverable in a condemnation action unless the certainty that they will occur is soundly established. State Highway Comm. v. Antonioli, 145 Mont. 411, 401 P.2d 563; 5 Nichols, Eminent Domain (Rev. 3 ed.) § 18.42(1). Plaintiff is not foreclosed from bringing a separate damage action if, in the future, snow should be piled on his property causing direct, substantial, and peculiar injury to it.

In addition, while it is clear that deprivation of lateral support can amount to damage in the constitutional sense, Morgan v. City of Albert Lea, 129 Minn. 59, 151 N.W. 532, there is no evidence, beyond plaintiff's mere contention, that the slight lowering of the grade of the highway below the level of his property deprived his house of lateral support. Not every change in the grade of a highway entitles abutting property owners to compensation. In order to be compensable, the change, unlike the one involved in this case, must be material and must give rise to direct and substantial consequential damages. Board of County Commrs. of Dona Ana County v. Little, 74 N.M. 605, 396 P.2d 591.

2. Finally, plaintiff argues that the value of his property has been decreased by the flow of traffic on the newly constructed highway. It is clear, however, that not every conceivable kind of injury to the value of adjoining property resulting from highway construction is 'damage' in the constitutional sense. Wolfram v. State, 246 Minn. 264, 74 N.W.2d 510; McCarthy v. City of Minneapolis, 203 Minn. 427, 281 N.W. 759. Thus, while a reduction in property values may result from the noise, light, vibration, or fumes produced by the proximity of increased vehicular traffic on a newly constructed highway, such consequential damage is not usually treated as 'damage' in the constitutional sense. State ex rel. State Highway Comm. v. Turk (Mo.) 366 S.W.2d 420; State By and Through Road Commission v. Williams, 22 Utah 2d 331, 452 P.2d 881. See, Wolfram v. State, Supra; McCarthy v. City of Minneapolis, Supra. Noise, light, vibration, and fumes from traffic on modern four-lane highways are 'inconveniences that are reasonably incident to the prosecution of necessary public enterprises,' and as such must be and are borne by the public at large. Stuhl v. Great Northern Ry. Co., 136 Minn. 158, 163, 161 N.W. 501, 503. The cost of compensating all owners of property adjacent or proximate to newly...