Burnquist v. Cook , 220 Minn. 48 ( 1945 )

¹ Reported in 19 N.W.2d 394. Proceedings by the state to acquire by condemnation, under Minn. St. 1941, § 161.03 (Mason St. 1927, § 2554, as amended), the easement of ingress to and egress from trunk highway No. 36, relating to a parcel of land belonging to appellant, Emilie Gloe Cook, and adjoining the north side of said highway. The proceedings resulted in a judgment for the state authorizing such condemnation. The question of appellant's damages for such taking was submitted to a jury, which returned a verdict that no damages had been sustained by her.

The judgment from which this appeal is taken decreed that the state acquire for public use all of appellant's right of ingress to and egress from said highway, and recover from her the sum of $15.36 costs and disbursements.

Trunk highway No. 36 runs in an easterly and westerly direction. It is intersected by Victoria street, which runs in a northerly and southerly direction. Appellant's land consists of a five-acre tract at the northwest corner of the intersection of these roadways, about one and one-half miles north of the St. Paul city limits. It extends west along the north side of highway No. 36 a distance of 1,320 feet and abuts on the westerly side of Victoria street a distance of 165 feet north of the intersection. It does not form any part of said highway. To the north and west, appellant's land is bounded by privately owned lands.

On the east portion of this land extending back about 300 feet west of Victoria street, appellant has her home, a garage, and certain installations for a trailer camp, including showers, toilets, laundry, and two wells. There are also fruit trees on this portion of the premises. This portion covers about 1.6 acres, leaving 3.4 acres extending some 900 feet to the west thereof. There is no way to reach this westerly portion except from highway No. 36 or from Victoria street through the part now used by appellant for her home and the trailer camp described. It is undisputed that this portion of the tract is suitable for subdividing, and that if right of access to highway No. 36 is taken as contemplated it will be necessary for appellant, before subdividing, to construct a road from Victoria street on the southerly portion of the entire tract.

Lexington avenue is parallel to Victoria street and one-half mile west thereof. Appellant's land extends west approximately one-half the distance between Victoria street and Lexington avenue. There are no present approaches to highway No. 36 from appellant's land or from the land west of it between Victoria and Lexington, on either side of said highway.

It is the purpose of the state to make highway No. 36 a "free-way" highway and, in this connection, to eliminate all crossway traffic thereon between intersecting highways. Easements of access to land abutting on the south side thereof were extinguished at the time the highway was established in 1937. The highway was created on an entirely new right of way at that time. Land abutting on the north thereof was not acquired or directly involved in the original proceedings, and in consequence the easements of access which were then created and became appurtenant to such land were not involved or extinguished in the original proceedings. The present action relates not only to appellant's easements of access but to such easements of some 33 additional parcels along the north side of the highway, which upon completion will leave highway No. 36 a "free-way" highway.

Prior to the trial, commissioners appointed by the court awarded appellant $300 damages for the extinguishment of her easement of access to said highway. This award was rejected by her as inadequate, and the appeal to district court in consequence resulted. At the commencement of the district court proceedings, appellant moved to dismiss the same on the ground that the state highway commissioner was not authorized, either by statute or otherwise, to acquire by condemnation the easements of ingress and egress here involved. This motion was denied. As previously indicated, the jury awarded no damages to appellant.

On appeal, appellant contends (1) that the easements of ingress and egress are not subject to condemnation; (2) that the commissioner of highways under the Minnesota constitution and statutes lacks power to condemn such easements; and (3) that the verdict of no damages is entirely inadequate and contrary to undisputed evidence.

1. This appeal presents questions not previously submitted to this court. The state, interested in building and developing modern highways, with safety a primary consideration in connection therewith, is abreast of other states in the construction of a number of "free-way" highways. Of necessity, such highways must be broad, with divided roadways separating traffic, with underpasses and cloverleaf intersections, and with crossway traffic thereon limited to certain definite points. Of this type of highway in other states, there is the Merritt Parkway in Connecticut, The Pennsylvania Turnpike in Pennsylvania, the Hudson River Parkway in New York, the Davison Avenue Limited and the Willow Run Expressway in Michigan, and the Arroyo Seco Free-Way in California. Trunk highway No. 10 between Anoka and Elk River in this state to some extent is a limited-access highway, abutting owners being permitted access to the same only at clearly defined intervals. Rights to provide separate roadways from subdivisions of such land abutting said highway have been eliminated.

Generally speaking, the power of eminent domain when properly exercised by the state extends to every kind of property within its jurisdiction, including the rights of access to and from a public highway. Minn. St. 1941, § 117.02, subd. 2 (Mason St. 1927, § 6538), defines "taking" as applied to property in the following language:

"The word 'taking' and all words and phrases of like importinclude every interference, under the right of eminent domain, with the ownership, possession, enjoyment, or value of privateproperty." (Italics supplied.)

Minn. Const. art. 1, § 13, provides:

"Private property shall not be taken, destroyed or damaged for public use without just compensation therefor first paid or secured."

Under these provisions, we have held that an "easement" is property" and may be taken, within the meaning of the constitution, and that a "private right of way" is "land" and that its destruction by the state for public purposes is authorized, provided the owner of the dominant estate to which it is attached is compensated therefor. 2 Dunnell, Dig. Supp. § 3037; Adams v. C. B. N. R. Co. 39 Minn. 286, 39 N.W. 629,1 L.R.A. 493, 12 A.S.R. 644; United States v. Welch,217 U.S. 333, 30 S. Ct. 527, 54 L. ed. 787, 28 L.R.A.(N.S.) 385, 19 Ann. Cas. 680; N. P. Ry. Co. v. Pioneer Fuel Co. 148 Minn. 214,181 N.W. 341; United States v. Wheeler (8 Cir.) 66 F.2d 977; In re Appeal of Sowers, 175 Minn. 168, 220 N.W. 419.

It has further been held that eminent domain permits not only the taking of easements in land, including the right of access, but that, if properly exercised and upon payment of proper compensation, it permits the complete vacation of roads and streets which in many instances deprive the landowner of his easement of access thereto. See, State, by Peterson, v. Severson, 194 Minn. 644, 261 N.W. 469; Underwood v. Town Board of Empire, 217 Minn. 385, 14 N.W.2d 459.

The authorities outside of Minnesota seem to have reached similar conclusions. In Liddick v. City of Council Bluffs,232 Iowa 197, 232, 5 N.W.2d 361, 379, which involved the erection of a viaduct on a city street destroying the access of abutting owners thereto, the court stated:

"* * * The abutting owner has a proprietary right, or easement, of access in the street along his property, which is subordinate to the right of the state or of a city or town in and to said street, so that the municipality may destroy the right by vacating the street, or it or the state may substantially impair or interfere with that access or right of access by improving the street for the better service or safety of the public, but in either event compensation must be made to the abutting property owner for the injury sustained by him."

See, also, King v. Stark County, 66 N.D. 467, 266 N.W. 654; State ex rel. State Highway Comm. v. Hoffmann (Mo.App.)132 S.W.2d 27; Jones Beach Blvd. Estate v. Moses, 268 N.Y. 362,197 N.E. 313, 100 A.L.R. 487.

While it is true that the creation of a public highway at the same time subordinates the land on which it is established to the easement of access insofar as abutting landowners are concerned, there is nothing in this fact which prevents the sovereign state from later extinguishing such easements in subsequent condemnation proceedings. As stated in 18 Am. Jur., Eminent Domain, § 88:

"It may be stated as a general rule that, except where restricted by statute, a right or interest already owned in property may be increased, or a burden in respect thereof maybe relieved, upon good cause shown, by the exercise of eminentdomain; in other words, the mere fact that one already ownssome right or interest in property is not a bar to hisacquisition, by the exercise of eminent domain, of the feetitle to the property, or of some other increased interest therein." New York H. R. Co. v. Kip, 46 N.Y. 546,7 Am. R. 385; Houston North Shore R. Co. v. Tyrrell, 128 Tex. 248,98 S.W.2d 786, 108 A.L.R. 1508. (Italics supplied.)

It is true that devoting a highway to uses destructive of easements to which it is servient, such as access, light, and air, constitutes a taking of property for which compensation must be made. This is expressed in 18 Am. Jur., Eminent Domain, §§ 183 and 185, as follows:

"* * * Clearly, an owner of land abutting on a street cannot constitutionally be deprived of all access to his premises without compensation, either by the vacation of the street or its physical obstruction in front of his premises, or its obstruction at another place so that the portion of the street in front of his premises cannot be reached. Total deprivation of access is equivalent to a taking, especially when the easement of access to the street is recognized by the substantive law of the state."

"Interference with an abutting owner's easement of access by a bridge or other structure in the street or highway is a damage or injury to property for which he may recover compensation, under constitutional provisions that private property shall not be 'taken or damaged,' * * * for public use, without compensation."

It may be noted that the easement of access sought to be extinguished here lies completely within the definitive limits of the right of way now owned by the state. Appellant's and other abutting owners' easements of access are within the highway limitations, and hence these proceedings are to extinguish rights not in lands outside of said highway, but rather within the limits thereof. In this respect the proceedings are distinct from those which seek to create or extinguish easements outside of the highway limitations, such as those involving snow fences, billboards, and the like, and cases which relate to such outside easements, such as Preston v. City of Newton, 213 Mass. 483, 100 N.E. 641, and Doon v. Inhabitants of Natick, 171 Mass. 228, 50 N.E. 616, hence have no application here.

The general rules covering easements of the type here involved, and their extinguishment through condemnation proceedings, are set forth in Restatement, Property, Servitudes, as follows:

"§ 450. An easement is an interest in land in the possession of another which

"(a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists; * * *.

"Comment: a. * * * Its most important characteristic is that its burdens fall upon the possessor of the land with respect to which it constitutes an interest * * *. This characteristic is expressed in the statement that the land in which an easement exists constitutes a servient tenement."

"§ 453. An easement is appurtenant to land when the easement is created to benefit and does benefit the possessor of the land in his use of the land."

"§ 455. The term 'servient tenement' signifies that the possessor of the land to which it is applied is subject to an easement."

"§ 456. The term 'dominant tenement' denotes that the possessor of the land to which it is applied has, as appurtenant thereto, an easement over other land."

"Chapter 41. EXTINGUISHMENT. An easement may terminate either through the operation of the limitations of its creation or by extinguishment. * * *

"An extinguishment of an easement may be complete or partial."

"§ 497. Comment: a. * * * To assume the existence of an easement appurtenant to land there must be presupposed two tracts of land in separate ownerships, a dominant and a servient tenement. If the two tracts come into common ownership they cannot continue to be dominant and servient, and the easement appurtenant ceases to exist * * *."

"§ 507. An easement is extinguished by a taking by eminent domain of the servient tenement, or of an interest therein, to the extent to which the taking permits a use inconsistent with the continuance of the use authorized by the easement.

"Comment: a. Except as its power is qualified by constitutional limitations, the state, as an attribute of its sovereignty has the power to extinguish private property rights. When it extinguishes or authorizes the extinguishment of such rights through the appropriation for a public use of the subject matter * * * the extinguishment occurs through the exercise of a constitutionally limited but not prohibited power, the power of eminent domain. Easements are property rights and when the ownership of them is in private hands they are subject to extinguishment as other property rights are through the exercise of this power.

"b. When the subject matter of private property is so taken, * * * the rights cease to exist. The rights themselves are not appropriated; they are merely extinguished by the exercise of a power paramount to them. * * *

"c. A taking by eminent domain which has the effect of extinguishing an easement must be a taking of the servient tenement or of some interest therein. The taking may involve the extinguishment of all previously existing rights in that tenement or it may involve the extinguishment of only some of them. A fee may be taken or only an easement. * * * If the condemning authority has already acquired, subject to the easement, the servient tenement, the easement may be separately condemned and extinguished. For there to be an extinguishment it is only necessary that the use permitted under the condemnation shall be inconsistent with the continuance of the use authorized by the easement existing prior to the condemnation."

"§ 508. Upon the extinguishment of an easement by eminent domain, the owner of the easement is entitled to compensation measured by the value of the easement."

Under the authorities cited, the conclusion cannot be escaped that an easement of access to a public highway is a property right, to which said highway is servient, and may be extinguished by the state under eminent domain when the taking is for a public use and when proper compensation is paid to the owners thereof. 25 Am. Jur., Highways, 154; Elliott, Roads and Streets (4 ed.) § 882.

Here, the state seeks to extinguish the casements of access of the abutting owners on the northerly side of trunk highway No. 36, with payment of just compensation therefor, under proper statutory procedure established for such purpose, and we hold that under such circumstances, under its power of eminent domain, the state may extinguish such casements.

2. To determine whether the commissioner of highways, in his capacity as such, may acquire or extinguish easements of access such as are here involved, we must look to the constitution and the statutes, as well as to our previous decisions interpreting them. It is not disputed here that the commissioner proceeded in accordance with the statutory provisions relating to the condemnation of property for highway purposes. However, it is contended that, while the commissioner has power to acquirelands for highways, he does not have the power, as a representative of the state, to extinguish, within the limits of such highways so acquired, the casements of access thereto belonging to the owners of the abutting property.

The legislature, by statute, has delegated to the commissioner of highways the power, on behalf of the state, to acquire by purchase, gift, or otherwise, all necessary right ofway for the laying out and construction of the trunk highway system. Its right so to delegate the state's power of eminent domain has been upheld many times by this court. See, Minnesota C. P. Co. v. Koochiching Company, 97 Minn. 429, 107 N.W. 405,5 L.R.A.(N.S.) 638, 7 Ann. Cas. 1182; N. P. Ry. Co. v. City of Duluth, 153 Minn. 122, 189 N.W. 937; N. P. Ry. Co. v. Pioneer Fuel Co. 148 Minn. 214, 181 N.W. 341. The statute specifically delegating such power here is Minn. St. 1941, § 161.03, subd. 1 (Mason St. 1927) § 2554, subd. 1), which provides:

"The commissioner of highways is empowered to carry out the provisions of the Constitution of the State of Minnesota, Article 16, Section 1; and is hereby authorized to acquire by purchase, gift, or condemnation, as provided by statute,all necessary right of way needed in laying out andconstructing the trunk highway system, and to locate, construct, reconstruct, improve, and maintain such trunk highway system, * * * and there is hereby appropriated annually from such fund the entire amount thereof or so much as shall benecessary for the location, construction, reconstruction,improvement, and maintenance of the trunk highway system, including the cost of acquiring title to any needed right of way, * * *." (Italics supplied.)

We have construed this provision in State, by Hilton, v. Voll,155 Minn. 72, 74, 192 N.W. 188, 189, as follows:

"* * * From these various provisions the conclusion is unavoidable that the legislature vested in the commissioner of highways the power and authority to designate the particular land needed for the right of way for a trunk highway. * * * In chapter 323, p. 406, Laws 1921, is also discerned an intention to delegate plenary and final power in the commissioner of highways in all that relates to the location, construction, and maintenance ofthe trunk highway system in order to obtain the best results. To achieve this a uniform and carefully worked out plan both for the route and the construction by one authority is needed."

See, also, Automatic Signal Advertising Co. v. Babcock,166 Minn. 416, 208 N.W. 132; State, by Benson, v. Erickson,185 Minn. 60, 239 N.W. 908; State, by Benson, v. Stanley,188 Minn. 390, 247 N.W. 509. State, by Peterson, v. Werder,200 Minn. 148, 273 N.W. 714; State, by Ervin, v. Appleton,208 Minn. 436, 294 N.W. 418.

Appellant contends that the foregoing statute must be strictly construed and that our previous interpretations of it do not extend to approval of the commissioner's authority to extinguish easements of access within a public highway created in and established by the commissioner under his statutory authority. It is urged that the delegation of power of eminent domain must at all times be strictly construed and that no power not expressly granted can be implied by the court. Cited in support of such rule are the cases of Minnesota C. P. Co. v. Koochiching Company, 97 Minn. 429, 107 N.W. 405,7 Ann. Cas. 1182, 5 L.R.A.(N.S.) 638; M. St. L. R. Co. v. Nicolin,76 Minn. 302, 79 N.W. 304. It is to be noted, however, that these cases involve the delegation of the power of eminent domain to private individuals or corporations. The rule of strict construction may be applicable in such cases. Here, however, the commissioner of highways does not act in the nature of a private individual. He represents the state of Minnesota acting in its sovereign capacity. The state, by order of the highway commissioner, appropriates the designated lands through condemnation proceedings. As required by the statute, the proceedings are brought in the name of the state, and the state in its sovereign capacity obtains title to the property involved in the condemnation proceedings. The statute (Minn. St. 1941, § 117.03 [Mason St. 1927, § 6539]), authorizing such proceedings, provides:

"If such property be required for any authorized purpose of the state, the proceeding shall be taken in the name of thestate by the attorney general upon request of the officer,board, or other body charged by law with the execution of suchpurpose; * * *." (Italics supplied.)

The majority of cases clearly establish that the principle of strict construction has no application insofar as the state or public departments thereof are concerned. As stated in 29 C. J. S., Eminent Domain, § 22:

"* * * but this principle is not applied as strictly to public bodies as it is in construing powers given to private corporations, and the construction should not be so strict as to defeat the evident purpose of the legislation. While the power should not be gathered from doubtful inferences, it neednot be expressly conferred if it appears by clear implication." (Italics supplied.)

In United States v. City of Tiffin (6 Cir.) 190 F. 279, 280, 281, the rule is ably expressed as follows:

"The whole contention * * * is that neither an act of Congress nor an act of the Legislature has expressly authorized the condemnation of this plot of ground * * * the right must appear, to seize this particular property, by express provision directed toward the special property, in some pertinent legislation or be the inevitable implication arising from such special legislation. This rule is established and the numerous authorities which support it are collated in a note on page 614 of 15 Cyc. The attempt to apply the rule, however, in this caseignores the difference in status between the United States inits relation to lands sought to be devoted to public use andthe parties attempting to condemn in the cases giving rise tothe rule.

"The United States has paramount authority in the matter of taking any property within its borders for those public uses which are within the constitutional reservations to the general government. Its rights in this behalf are inherent in its sovereignty, and are prior to constitutions and statutes. The Constitution does not operate to create this right, but only to limit its exercise to certain objects. The several states fortheir own administrative purposes within their own borders holdauthority of the same generally broad and extraconstitutionalnature. The principle of strict construction of either thenature or extent of this right applies to neither sovereigntyfor the reason that such right is a very part of thesovereignty itself, existing from the beginning. This does not mean, however, that no power may intervene to prevent arbitrary action, for such power certainly abides with the courts.

* * * * *

"An examination of the cases which support the rule [of strict construction] * * * shows that in each in which the right to condemn was denied the attempting condemnor was a municipal or a private public service corporation, which was vanquished by the application in this particular sense of the general principle that the legislative grant to it of a right to condemn must be strictly construed. No authority is shown, either in the briefs or in our own researches, in which the rule is applied against the sovereignty which it was established to protect." (Italics supplied.)

See, also, United States v. Certain Lands, etc. (D.C.)48 F. Supp. 306; United States v. Sixty Acres of Land (D.C.)28 F. Supp. 368, 372; C. M. Patten Co. v. United States (9 Cir.)61 F.2d 970, 972, dismissed as moot, 289 U.S. 705,53 S. Ct. 687, 77 L. ed. 1462.

As stated in the Voll case, 155 Minn. 72, 192 N.W. 188, the commissioner of highways determines and designates the lands required for right of way. The word "lands" includes or embraces all easements or rights growing out of the same. See, definition of "land" in 24 Wd. Phr. (Perm. ed.) pp. 142, 143. The highway commissioner is authorized to acquire necessary right of way. The word "necessary" as defined in 28 Wd. Phr. (Perm. ed.) pp. 170 to 173, does not mean an absolute or indispensable necessity when used in relation to eminent domain, but only that the taking involved is reasonably necessary to secure the end in view.

It is to be noted that the legislature not only empowered the commissioner of highways to acquire land necessary for the trunk highway, but also to reconstruct, improve, and maintain the highway system, and that it appropriated the necessary funds therefor. In this respect the Minnesota statute grants much broader powers to the highway commissioner than do the statutes of most states. We have held that the commissioner's obligation to improve and maintain the highways places upon him the responsibility of maintaining and regulating such highways so as to lessen or eliminate traffic hazards. Thus, in Automatic Signal Advertising Co. v. Babcock, 166 Minn. 416,420, 208 N.W. 132, 133, in discussing the powers of the commissioner of highways and his duties with respect thereto, we stated:

"* * * the phrase 'to improve and maintain such trunk highway,' as used in the statute, was meant and intended to give the same officer or tribunal, having charge of the construction and maintenance, the general supervision,upkeep and regulation of the traveled portion of the systemthroughout its entire length. The evident purpose was to establish and maintain, as nearly as practicable, a uniform system so as to better acquaint and familiarize the traveling public with the system and thereby render traffic less hazardous." (Italics supplied.)

See, also, Otten v. Big Lake Ice Co. 198 Minn. 356,270 N.W. 133.

It may be noted here that the Minnesota commissioner of highways has at various times in the past acquired easements in lands even outside the definitive limits of the highway for the purpose of establishing "sight corners." Such easements are designed to prevent the erection of structures at intersections which might obstruct the view of persons using the highway. They often deprive the abutting owners of their easements of access to said highway, but are necessary for the proper and safe maintenance of the highway. There is nothing in § 161.03 (§ 2554) above referred to which expressly authorizes or empowers the commissioner to acquire such easements outside the highway. In one case, however, which involved a "sight corner," this court made reference to the procedure in a manner which clearly indicated its approval thereof. In State, by Peterson, v. Werder, 200 Minn. 148,273 N.W. 714, the law relative to such procedure was discussed at length. Therein the highway commissioner, subsequent to the completion of the highway, entered into an agreement to purchase a strip of land adjacent thereto for the purpose of a "sight corner." The evidence indicated that the sum agreed upon for such purpose may have been more than the value of the property. Proceedings were commenced to enjoin the commissioner from completing the purchase. This court affirmed the lower court's order granting the injunction, not because the corner acquired was outside the highway limitations, but because the commissioner had not instituted proper statutory proceedings for the purpose of acquiring the same. Therein we stated (200 Minn. 154, 273 N.W. 717):

"Here * * * the commissioner has not yet, in the mannerrequired of him by statute for the exercise of his duty in the premises, 'designated' or 'selected' the Appleton lot as a part of the highway or an appurtenance thereto.

* * * * *

"What we have said as to the power of the commissioner (which nothing in this decision should be construed as limiting when exercised within the limits of the grant of it) applies to the suggestion, and it is nothing more, that it was desirable in the interest of the safety of traffic to utilize the northeast corner of the Appleton property as a ``sight corner.'Ordinarily, the acquisition of an easement would answer thatpurpose. But whether the sight corner be acquired through aneasement or the fee, it must be appurtenant to or part of theright of way." (Italics supplied.)

The dissent of former Chief Justice Gallagher in that case went further than the majority opinion in upholding the power of the commissioner to acquire lands and interests therein outside the definitive limits of a highway. In his dissent he stated (200 Minn. 166, 167, 273 N.W. 723):

"That leaves for determination the sole question as to whether without judicial interference the commissioner of highways has the right under existing statutes to acquire by purchase land outside of the right of way as previouslydesignated by him in an order fixing the final and definitelocation of the highway, there being nothing arbitrary,capricious, or fraudulent in his action in procuring additionalproperty either for the purpose of widening a highway or for asight corner. I think he has, and I cannot read into the statute the construction given it by the majority opinion. * * * If the construction given in the majority opinion werestrictly adhered to the commissioner of highways would have nopower to acquire property outside of the original road limitseither for the purpose of widening a trunk highway or for thepurpose of acquiring sight corners after it was once designatedby final order. * * * I cannot see how the action of the commissioner can be interfered with by the court." (Italics supplied.)

In the instant case, the objective of the highway commissioner is more limited than in the Werder case. Here, he proceeds under constitutional and statutory authority in compliance with the regulations established by the legislature. Here, he does not seek to go outside the definitive limits of the established highway, but rather to extinguish easements servient thereto and within the same. Here, his actions are directly within his grant of power to maintain the highways safely and to regulate the same in the light of traffic hazards. Here, he does not exercise his power in an arbitrary or capricious manner, but according to statutory methods of procedure, and it would appear that he has acted within the expressed and implied authority granted to him by the legislature. 161.03 [§ 2554].)

Courts have often applied the doctrine of liberal construction to achieve and attain the general objectives of the statutory grants of power involved. Thus, in In re Widening of Fulton Street (City of Grand Rapids v. Barth) 248 Mich. 13, 17, 226. N.W. 690, 691, 64 A.L.R. 1507, the court held that under a grant of power to take land for "street purposes," land might be taken adjacent thereto for parking purposes, holding the "taking of the land for highways is not limited to that necessary for actual travel." In City of Tulsa v. Williams,100 Okla. 116, 227 P. 876, the court held that the grant of power to acquire land for reservoir purposes included the right to acquire adjacent land for the control of flowage. In Independent School Dist. v. Hewitt, 105 Iowa 663, 75 N.W. 497, the court held that a grant of power to acquire land for schoolhouse purposes was broad enough to include adjacent land to be used for playgrounds, etc. In Rindge Co. v. County of Los Angeles, 262 U.S. 700, 43 S. Ct. 689, 67 L. ed. 1186, the court held that a grant of power to acquire lands for certain purposes authorized the acquisition of lands not needed for present purposes but which might ultimately be required. See, also, State ex rel. School Dist. v. Superior Ct. 69 Wash. 189,124 P. 484; Rand v. Mississippi State Highway Comm. 191 Miss. 230,199 So. 374; State ex rel. Olcott v. Hawk, 105 Or. 319,208 P. 709, 209 P. 607; Dohany v. Rogers, 281 U.S. 362,50 S. Ct. 299, 74 L. ed. 904, 68 A.L.R. 434.

Several states, through their highway commissioners, have completed "free-way" highways wherein easements of access have been extinguished under delegations of power more limited in many respects than the Minnesota statutory grant of power. In some of such states, special laws subsequently were enacted authorizing extinguishments of easements, but in most of them the highways were completed and access extinguished under general statutory grants of power prior to the enactment of such special legislation.

In Connecticut, the Merritt Parkway was created by special laws enacted in 1931, 1933, and 1935. The first bill, No. 314, enacted in 1931, directed the Connecticut highway commissioner to lay out a highway beginning and ending at certain points. Act No. 408, enacted in 1931, created the Merritt Highway Commission. Act No. 379, enacted in 1933, authorized and directed the highway commissioner to lay out the trunk-line highway by using existing highways or by acquiring by purchase or condemnation new rights of way. Section 537c, enacted in 1935, authorized the commissioner to complete the construction of the Merritt Parkway as a through-road for noncommercial vehicles and provided a bond issue for the financing thereof. None of said acts specifically empowered the commissioner to extinguish easements of access. Actual construction of the highway commenced in 1934 and was completed in 1940. Easements of access were taken under the general statutory grant of power covered by Connecticut General Statutes, § 1528, long prior to the enactment of the special legislation (G. S. 1939 Supp. Title XI, c. 80, pt. II, §§ 427e, 428e), which authorized the highway commissioner to acquire easements of access and which became effective in 1939.

In Stock v. Cox, 125 Conn. 405, 6 A.2d 346, the court recognized the highway commissioner's power to extinguish easements of access under the general statutory grant of power (§ 1528) which authorized the commissioner to "take any land he may find necessary for the layout, alteration, extension, widening, change of grade or improvement of any trunk line highway." The court likewise held that the designation of the Merritt Highway as a "parkway" did not differentiate it from other highways and the laws applicable thereto. The court stated (125 Conn. 411, 6 A. [2d] 350):

"* * * defendant claims that this is a trunk line highway, and that therefore § 1528 under which he proceeded, and the statutes supplementary thereto, are applicable and expressly authorize and provide for the appropriation which was made. * * *

* * * * *

"* * * Under the statutes the highway commissioner then had undoubted authority to take the land necessary for the construction of the Merritt Highway as a trunk line highway, proceeding under § 1528. Was he stripped of the power to take the plaintiff's land for this highway by the passage of § 537c in 1935?

* * * * *

"* * * That this statute uses the word 'parkway' as descriptive is evidence by its provision for the construction of 'said road as a parkway.' * * *

"* * * there is no inherent repugnancy in meaning between the terms ``parkway' and ``trunk line highway.' A parkway is ``a broad thoroughfare beautified with trees and turf.' * * * Use of the word ``parkway' instead of 'highway' had no such significance as the plaintiff claims. * * *

"* * * ``There is no repugnancy between the statutes; and we think there is no repeal by implication. * * *' This conclusion, which in effect is equivalent to ruling that § 1528 provided for the taking here, is determinative of the principal claims of the plaintiff, including one that this taking violated his constitutional rights.

* * * * *

"* * * the condemnation will prevent his [plaintiff's] right of access to an existing public highway. This destruction of the plaintiff's right of access to his south tract constitutes a taking of it in the constitutional sense. 18 Am. Jur. 789, § 158; United States v. Welch, 217 U.S. 333, 338,30 Sup. Ct. 527 [54 L. ed. 787, 28 L.R.A.(N.S.) 385, 19 Ann. Cas. 680]; 15 L.R.A.(N.S.) 51, note; 18 Am. Jur. 814, § 183, and 756, § 132. * * * It constitutes * * * a confiscation of the plaintiff's remaining land, for the direct taking of which the commissionerhas assessed no damages." (Italics supplied.)

In Michigan, Davison Avenue Limited and the Willow Run Expressway systems are limited-access highways. They were constructed under the general condemnation act of Michigan available to state agencies and public corporations. (Act 149 of the P. A. of 1911, as amended, Compiled Laws, 1929, § 3763.) This is a general condemnation statute, with no provisions therein relating to the extinguishment of abutters' easements of access. Both the Willow Run Expressway and the Davison highway were completed prior to the enactment of the Michigan limited-access-highway statute (No. 205, P. A. 1941), which became effective January 10, 1942 (Cumulative Supp. c. 68, § 9.1094[1][4]). Goodfellow Tire Co. v. Commr. of Parks, etc., 163 Mich. 249, 128 N.W. 410,30 L.R.A.(N.S.) 1074, relates to an attempt to extinguish easements of access belonging to property owners abutting a highway without payment of compensation therefor.

In Pennsylvania, under special legislation, there was constructed by private interests the Pennsylvania Turnpike. Its construction, maintenance, and operation were to be paid for through the payment of tolls by the users thereof. This is a limited-access highway and will ultimately belong to the state of Pennsylvania when the cost of construction and maintenance have been repaid to the private owners constructing it. Presumably, it will then continue to be a "free-way," to which the right of access has been eliminated insofar as abutting owners are concerned, notwithstanding the fact that it was constructed under special legislation which made no reference whatsoever to the acquisition of easements of access. Nor does the fact that the road is privately constructed or designated as a "turnpike" or "toll" road differentiate it from any other highway. Turnpike toll roads, equally with free roads, are for the public use. Backus v. Lebanon, 11 N.H. 19, 24, 35 Am. D. 466, 469; Petition of Mt. Washington Road Co. 35 N.H. 134.

"A road constructed and supported by a turnpike corporation differs in no essential characteristic from a common highway, * * *. Their origin and objects are identical. * * * Both are called into existence, and supported, to subserve, in exactly the same way, the public necessities and convenience, and both alike are intended to endure * * * so long as that convenience requires or that necessity exists. State v. Maine,27 Conn. 641, 646, 71 Am. D. 89, 92.

"A road or canal constructed by the public or by a corporation is a public highway, for the public benefit, if the public has a right of passage upon it by paying a reasonable, stipulated, * * * toll. Bonaparte v. Camden A. R. Co. Baldw. 205, Fed. Cas. No. 1,617." 22 L.R.A.(N.S.) 101, 102.

While the special law, 36 Purdon's Pa. St. Ann. (Perm. ed.) § 652a, contains no specific authorization to extinguish easements of access, it permits the highway commissioner to acquire easements and other interests in land (as does the Minnesota general statutory grant of power) for the construction and operation of the turnpike. Further, it may be stated that the Pennsylvania court, in Breinig v. Allegheny County, 332 Pa. 474, 2 A.2d 842, recognized the right of the state to acquire easements of access under general legislative authority similar to Minnesota's. Therein the Pennsylvania court stated (332 Pa. 480, 2 A. [2d] 847):

"Where land is taken or purchased for highways, the abutting owner retains, * * * the right of access, * * *. This right cannot be taken from him unless compensation is made thereforunder the law. It is a property right, protected by theConstitution." (Italics supplied.)

The court there denied the right of a municipality acting under its police power, rather than under a delegation of power of eminent domain, to shut off an abutting owner's access to a highway without payment of compensation therefor. In denying such right, the court stated (332 Pa. 481, 484, 2 A. [2d] 847,849):

"* * * these propositions are clear: * * * a municipality cannot, without condemnation, completely shut off an abutting owner's access to his land, * * *.

* * * * *

"* * * the action * * * was unreasonable and oppressive. The circumstances did not require an absolute prohibition of driveways * * *." (Italics supplied.)

In California, while special legislation covered construction of the Arroyo Seco Free-Way, prior thereto the California court had recognized the right of the state in proper condemnation proceedings to extinguish easements of access to a public highway. In People v. Reed, 139 Cal. App. 258, 263, 33 P.2d 879, 881, the California court stated:

"* * * The lands so owned by the defendant, but over which the right of way would not run, were not damaged, as we understand the findings, if the new highway did not operate to preclude ingress and egress. The right of ingress to and egress from such land was a property right. * * * Such right could betaken but only in the same manner as the land itself could betaken, that is, in the manner provided in title VII, Part III(sec. 1237), of the Code of Civil Procedure." (Italics supplied.)

See, also, People v. Ricciardi, 23 Cal. 2d 390,144 P.2d 799.

While it is true that a number of states have passed acts for the public control of highway access, it may be noted that in many of such states the highway commissioner did not possess the broad statutory power granted the highway commissioner under the Minnesota act, not only to acquire the necessary land for highways, but also to operate and maintain the same after their construction, and, if necessary, to reconstruct the same. While special legislation may be helpful, certainly it is not vital or essential to the objective sought here, nor should the fact that some other states have enacted special legislation be urged as authority for holding that special laws are advisable here before the highway commissioner can extinguish easements of access or create limited-access highways under the broad language of the Minnesota statute. The authorities are almost countless which hold that easements of access must not be taken unless compensation is paid and which by implication indicate that such easements may be taken when the owners are compensated therefor. A few authorities have been cited where this right has been properly denied where the state has acted under its police power and attempted to do so without payment of compensation. Not a single authority has been cited which denies the state or its departments, under the power of eminent domain, the right to extinguish such easements upon payment of just compensation. 18 Am. Jur., Eminent Domain, § 183, note 14, § 185, note 3; Annotation, 45 A.L.R. 537; D. M. Osborne Co. v. Missouri P. Ry. Co. 147 U.S. 248, 13 S. Ct. 299, 37 L. ed. 155, 156.

The bulletin "Public Control of Highway Access and Roadside Development," issued in 1943 by the Public Roads Administration, Federal Works Agency, while taking the position that specific statutory sanction for taking easements of access might be desirable, states:

"The courts have recognized that abutting property owners have certain rights in existing streets and highways, the deprivation of which even for public use must be compensated for under the 'just compensation' clauses of our Federal and State Constitutions. These rights include the right of access, * * *.

"It is well established in common law of this country that right of access cannot be denied or restricted nor an owner deprived of such right except by due process of law and upon the payment of compensation, and then only for a public purpose. * * *

* * * * *

"The concept of limited-access highways to facilitate the efficient movement of through traffic is of such recent vintage that the judiciary has not had the opportunity to endorse or reject it. Perhaps a crystallization of public opinion will influence the courts to take a liberal view of the matter.

* * * * *

"To the legislatures and the courts and to the public generally it may well be argued, * * * that with respect to through-traffic facilities abutting owners should have no more right of access to highway right-of-way than to railroad right-of-way. Since the public safety, welfare, and convenience are served in both instances, the right of access should be denied in each case."

The same authority indicates that the states of Tennessee, North Carolina, Mississippi, and Alabama are constructing or have constructed "free-way" highways under general legislative grants of authority without specific legislation. It is also understood that Arizona, New Mexico, Oklahoma, and Utah are now actively designing limited-access facilities for postwar construction. None of such states have special legislation covering access acquisition. See, Public Roads Administration, Federal Works Agency, Records.

Under the authorities above referred to and in the light of the language of § 161.03 (§ 2554), it would seem clear that the commissioner of highways here, under the power delegated to him therein, may extinguish within the highway already created the easements of access thereto and to which said highway is now servient, provided proper payment of compensation is made to the owners of such easements.

3. While the authorities referred to establish the commissioner's right to acquire the right of access here involved, none of them indicate that such right may be acquired without just and fair compensation to the party deprived thereof. Instances may arise where the acquisition of such a right might completely eliminate the value of the dominant estate. In such a case, the state would be obligated to pay the full value of the land. In the instant case, however, it is not disputed that the landowner still has access to Victoria street, and, via Victoria street, to highway No. 36. This, however, does not offer a satisfactory solution for access to the rear of the land, which, as heretofore indicated, is valuable for subdividing. Appellant's witnesses without exception indicated a substantial loss in value to the premises for this purpose. The witnesses for respondent, on the other hand, testified that the taking of the ingress and egress here involved did not in any respect lessen the value of the premises. Each of said witnesses, however, on cross-examination admitted that if the right of ingress and egress were taken, the rear 900 feet of the premises would be of little value for subdividing unless access thereto were possible, and that if right of access to highway No. 36 were taken it would be necessary to construct a road over the southerly portion of the premises from Victoria street to reach the west 900 feet thereof. They gave varying estimates of the cost of such a road, ranging from $300 to $1,200.

The jury returned a verdict awarding no damages whatsoever to appellant. It would seem clear from a reference to the foregoing testimony that such a verdict is contrary to the undisputed evidence, and, in consequence, we feel that a new trial must be ordered because of the failure of the jury properly to compensate appellant for the deprivation of her right of access to highway No. 36. Minn. Const. art. 1, § 13, prohibits taking, destroying, or damaging of property without compensation. Where the taking of the right of access incidental to property lessens the value thereof for the purpose for which it is best suited, it can scarcely be disputed that the owner of said property has suffered damages. Under such circumstances, we must hold that the evidence does not sustain the verdict here and that the case must be remanded for a new trial on the issue of damages.

Reversed.