In re Klossner , 156 Minn. 440 ( 1923 )

Dibell, J.

Certiorari to review the order of the district court in establishing a judicial highway in the counties of Blue Earth and Brown pursuant to Laws 1921, p. 436, c. 323, § 41.

The necessity or propriety of establishing a judicial highway is a legislative question. The most recent case involving the question is In re Judicial Road, 156 Minn. 327, 194 N. W. 775, where the controlling principle is announced and the cases are collated. With the limited scope oí permissible judicial review there is nothing justifying a disturbance of the result reached by the trial court.

The court ordered that each county pay the cost of the construction of the road within its. limits. This is claimed to be error by Blue Earth county, upon the ground that the most expensive portion of the construction is within its limits and that Brown should contribute.

Whether this question is properly raised by the writ issued upon the joint application of the two counties, we do not stop to consider.

Subdivision 5 of section 41 provides that if the court establishes a judicial highway it “shall direct the time and manner of opening the same for public use.” A certified copy of the order is transmitted to the auditor of each county and “upon receipt of such order the county board shall proceed in accordance with its terms to open so much of the road as lies within its county for public use.” We do not find that the statute provides machinery for the construction of a judicial highway as a joint project under the direction of the court, or that it intends that one county shall share the expense of constructing the highway in another. The provision of subdivision 4 that “such damages, when finally determined, and all expenses incurred in the establishment, alteration or vacation, including compensation for right of way, shall be paid by the counties through, into or between which such road passes, each county paying its just proportion, as determined by the court,” refers to the items of damages and expenses incurred in the proceeding in the court resulting in the establishment of the highway. It does not refer to the cost of subsequent construction. By section 1, subdivision 3, the words “county roads,” include “all roads lying within the county, or on the line between counties, established by judicial proceedings.”

There is no error in the order requiring each county to construct the portion of the highway within its limits. The statute puts the burden there.

The effect of the provision of subdivision 5 relative to the opening of the highway was left open in In re Judicial Road, 156 Minn. 331, 191 N. W. 598, and need not be further considered.

Order affirmed.