Volden v. Selke

• Decision Date: 24 January 1958
• Docket Number: No. 37288,37288
• Citation: 251 Minn. 349,87 N.W.2d 696
• Parties: Ole VOLDEN et al., Appellants, v. George A. SELKE, Commissioner of Department of Conservation of Minnesota, L. P. Zimmerman, Commissioner of Highways of Minnesota, and Duininck Brothers and Gilchrist, Respondents.
• Court: Minnesota Supreme Court

Page 696

87 N.W.2d 696

251 Minn. 349

Ole VOLDEN et al., Appellants, v. George A. SELKE, Commissioner of Department of Conservation of Minnesota, L. P. Zimmerman, Commissioner of Highways of Minnesota, and Duininck Brothers and Gilchrist, Respondents.

No. 37288.

Supreme Court of Minnesota.

Jan. 24, 1958.

Syllabus by the Court.

1. Language in a statute which authorizes the taking of any land needed to carry out certain projects, when taken by itself, is broad enough to cover the acquisition of a fee interest.

2. L.1935, c. 51, which authorizes the State of Minnesota to acquire land to undertake projects related to the conservation and development of the natural resources of the state in order to further work relief and reemployment, must be construed with a view toward achieving the overall purposes of the statute, rather than merely as a work-relief measure.

3. Where the legislature takes private property for public use, it is for the court to determine whether the taking is necessary for the purposes set forth in the authorizing statute.

4. In taking property by condemnation proceedings, the state may acquire whatever interest in the property is reasonably necessary for the proposed project. Held, under the facts of this case, that it was reasonably necessary for the state to acquire a fee interest in the land involved.

Nelson & Oyen, John P. Nelson, Montevideo, for appellants.

Lauerman & Johnson, Olivia, for Duininck Brothers and Gilchrist.

Miles Lord, Atty. Gen., Melvin J. Peterson, Asst. Atty. Gen., for other respondents.

DELL, Chief Justice.

This is an action for a declaratory judgment wherein plaintiffs seek to have themselves declared the owners in fee of certain tracts of land in Chippewa County, Minnesota, subject to an easement for flowage and reservoir purposes. The lower court found for the defendants, and from the order denying plaintiffs' motion for amended findings of fact and conclusions of law or in the alternative for a new trial, this appeal was taken.

The present case arises out of condemnation proceedings commenced in 1935 in Chippewa County to acquire land for water storage and flood-control purposes in the Minnesota River valley and for restoration of Lake Lac qui Parle (hereafter referred to as the Lac qui Parle project). The State of Minnesota, by its attorney general, commenced an action in the district court of said county to acquire the fee title to the necessary property. A part of the land (about 300 acres) was owned by one John O. Volden and subsequently by his estate. Commissioners were appointed pursuant to statute to ascertain the amount of damages which the various landowners would sustain, and they determined that the fee interest in this particular property was worth $7,782.40. An appeal was taken from this award by John O. Volden, and after his death, by the executor of his estate, who was substituted in his place. Upon review, a compromise was reached whereby the award was increased to $13,500 by stipulation in writing, entered into between the state and the executor of the Volden estate and his attorneys. Thereunder the state purported to acquire the fee interest and the right to enter a final certificate as to the property, and the Volden estate was permitted to use the land for farming purposes in 1937 and to have first right to lease the property thereafter for farming purposes not inconsistent with the Lac qui Parle project. The stipulation was confirmed by the court and incorporated into the final certificate which vested fee title to the property in the state. No appeal was taken, at least in so far as the Volden property was concerned. In 1950 the state conveyed all its flowage rights in the land to the United States, but reserved to itself all rights which did not conflict with the easement which the Federal government had received, including the fee. In 1955 the Executive Council of the state authorized defendants Duininck Brothers and Gilchrist to remove gravel from the premises for use on state highways.

Thereafter, plaintiffs, as heirs of John O. Volden, instituted the present action. It is their position, both in the trial court and on appeal, that the state needed only an easement of flowage to accomplish its purpose under the authorizing statute (L.1935, c. 51, M.S.A. § 9.17 note) and that, consequently, the acquisition of any greater interest was invalid. We are thus brought to the single question which this case presents: Was the State of Minnesota authorized to acquire the fee interest in this property under the statute in question?

1. The major provisions of that statute are contained in § 2, which is relevant here. It provides:

'In extending work relief or reemployment for needy, destitute and disabled persons within the State of Minnesota, the (Executive) Council may undertake projects involving flood control, water supply, water diversion, control of erosion, reforestation and afforestation, and recreation and any other project which will aid in the conservation and development of the natural resources of the State and for the promotion and conservation of the health, safety and general welfare of the people of the state.

'The Council is authorized to acquire by gift, purchase, condemnation proceedings under Mason's Minnesota Statutes of 1927, Chapter 41, as amended, or otherwise, any land needed to carry on the work relief and employment herein provided for and, in appropriate cases, to convey land to the United States needed for projects financed in whole or in part by the United States.'

Clearly the language of the statute, taken by itself, is broad enough to empower the state to acquire a fee interest. The word 'land' has been defined to include any interest therein. ¹ Moreover, plaintiffs have conceded all along that, if the fee had been needed, it could have been taken. ² They argue for a restrictive construction of the language whereby the words 'any land' would be modified by the phrase 'needed to carry on the work relief and employment herein provided for * * *.' We cannot accept their contention.

2. L. 1935, c. 51, § 2, must be construed as a whole. The purposes set forth in the first paragraph envision the undertaking of comprehensive programs for the development and conservation of the state's natural resources. Admittedly this was depression legislation designed to put funds into the pockets of the unemployed. But it cannot be said that the sole purpose of these projects was to promote work for work's sake. Rather it was contemplated that the finished products would have a permanent value and would inure to the benefit of the people of this state.

Among the enumerated projects in the first paragraph are flood control, water supply, water diversion, control of erosion, reforestation and afforestation, and recreation. These are followed by a phrase which begins 'and any other project * * *.' The word 'and' is inclusive; its use--rather than the use of another word, such as 'or'--is significant. It looks to the initiation of any one of the enumerated activities or perhaps several or even all of them in a given instance. A close examination of the overall plan for the Lac qui Parle project, as contained in the state's original petition, discloses that the land was to be used to restore 'Lac qui Parle Lake and other lakes and surrounding swamps and marshes' and 'to create and perpetually maintain a reservoir for the storage and adequate supply of water * * * and to perpetually regulate and control floods * * * to build, erect and perpetually maintain dams, dikes, spillways and embankments * * * and other works as shall be necessary to perpetually maintain the waters of the reservoir created thereby at an established elevation not to exceed 945 feet sea level datum * * *.'

Perpetual maintenance of the project by the state strongly supports the inference that more than a work-relief project was contemplated, and the acquisition of a fee interest would be in accord with those plans. Plaintiffs err in attempting to sever the reservoir and water-storage phase of the program from the totality which is involved. ³ But what is more disturbing is their argument that, at the precise time that the state begins to condemn property, it must know exactly what use is to be made of all the land in a given tract; that it can take no greater interest in that land than the exigencies of the moment require; and that, if it acquires any larger interest, then it does so at its peril. Such an interpretation would unduly hamper public agencies. The process of acquiring property by condemnation is time-consuming, and each time a relevant technological improvement were made or more reliable data obtained, the state would be forced to reappraise and readjust its prior plans. We cannot interpret this statute to condone such an arrangement. ⁴

3. We do not mean to imply that this court now abdicates its duty to determine in a particular case whether or not the taking of designated property is necessary for the purposes of the proposed enterprise as set forth in the enabling statute. ⁵ That is a matter of statutory construction. We do say, however, that we will not encroach upon the sphere in which the legislature alone may act, and we repeat now what we said earlier in State, by Peterson, v. Bentley, 216 Minn. 146, 153, 12 N.W.2d 347, 352:

"* * * The legislature can take private property against the will of the owner only for public use and after just compensation to the owner has been paid or secured. Except as restricted and controlled by these two requirements, the power of the legislature to take private property is unlimited and its determination so to do conclusive. Whether the use be public and whether proper compensation has been made are judicial questions, the final determination of which rests with the courts. All other questions involved in the taking of private property are of a legislative nature; and the determination of such...