State Ex Rel. Petterson v. Werder

¹ Reported in 273 N.W. 714. 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," to be paid to the said Elsie Appleton and her attorney. Mrs. Appleton was bound to convey her property to the state free of encumbrances 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 2 Mason 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. p. 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, 1 Mason 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 § 2554, subd. 1 of which limits the acquisition of land to "necessary right of way," and subd. 4 of which requires designation of "the final and definite location of any trunk highway" by formal, written order. Subd. 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" (1 Mason 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 land is necessary and needed until tentatively, at least, its amount and boundaries are determined. In some cases the commissioner may be able to save the state money by buying all, instead of condemning a portion, of a tract. In such a case the incidental result that the state may be left with a fragment not included in the highway should ordinarily be immaterial and indeed may reflect credit on the commissioner. But the statute still demands that such determination be made, finally and definitely, by formal order. Section 2554, subd. 4(a). If acquisition precedes order, the latter must at least be made before a court can decide what is within and what is without the right of way. Judicial decision cannot be based on the mere testimonial prediction of some representative of the commissioner. In this case his decision, or order, excludes the Appleton lot from the highway.

If a proposed acquisition of right of way is to be by condemnation, there is obvious necessity for the definitive order of location in advance of the proceeding. If the additional land is to be acquired by purchase and there is no limit whatever upon the power to purchase without the definitive order of location, there is no limit in fact to the commissioner's power to acquire, for, in that case, he could buy a large property and later include and use only an insignificant part of it in the right of way. Nothing of that kind was intended by the statute.

All that is said in State, by Hilton, v. Voll, 155 Minn. 72,73, 192 N.W. 188, 189, when properly applied to its subject matter, confirms rather than impairs our present conclusion. That was a condemnation proceeding wherein it was claimed by the owners that some of the lands which had been formerly "designated" by the commissioner "were not required and the taking thereof would not serve a public use." We held that the designation by the commissioner was final. Here there has been no such designation, only an attempted purchase. It was there held [155 Minn. 74] that "the legislature intended to give him [the commissioner] the same authority to designate the land to be taken under the right of eminent domain as to purchase or accept by gift lands for right of way." Again [155 Minn. 75], "we think the action of the commissioner of highways in selecting land for the right of way for a trunk highway is of the same finality as that of the voters of a school district selecting a school site." That was because he was "the agency" established by the legislature to select the particular property needed for this public use. Finally, this significant language was used [155 Minn. 76]: "The taking by the commissioner of a right of way under said c. 323 is specifically prescribed and very simple, it is by making an order covering the land selected for the trunk highway involved."

Here we repeat, at the risk of being tiresome, that the commissioner has not yet, in the manner required 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. Notwithstanding that, we are asked, in order to reverse the judgment, to make such designation or selection for him. That surely would be unwarranted intrusion upon the legislative and executive domain of the commissioner, and, by so much, "judicial usurpation."

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 that purpose. But whether the sight corner be acquired through an easement or the fee, it must be appurtenant to or part of the right of way. Hence, again under the statute, the possessor of the power, the commissioner, must exercise it in the manner indicated by statute, that is, by definitive formal order which must "designate" the limits of the highway.

In the testimony there is suggestion that the Appleton property was needed for drainage purposes. We find no evidence that any drain had ever been surveyed, or otherwise laid out, as an appurtenance of the highway, across the lot or any part of it. (See § 2600.) Here again there is absence of effective, definitive action by the highway commissioner of the kind demanded by statute. The matter of drainage may be litigated upon the trial of the appeal, if there ever is a trial, from the award of damages to Mrs. Appleton. So far no reason appears why her home as it stands cannot be well protected from highway flowage without any drain upon or over any part of the property. Not for us is the issue as to how much or what portion of the property is necessary to be taken or subjected to an easement for drainage purposes. Decision of that question is for the commissioner himself.

There is testimony suggesting an additional reason for taking over the Appleton lot. It was thus stated by Mr. S. Rex Green, engineer and purchasing agent of lands for the highway department:

"This happens to be a project on which there is being expended money for artistic development, and the federal government has required the state to spend not less than one per cent of the funds given it by the government to pay for houses and property for that purpose, and it is necessary to buy sufficient right of way so that artistic development may actually be completed."

As to all that, it is again enough that we cannot base decision upon the mere testimony of a subordinate of the highway commissioner. The highway "purposes" for which he may acquire lands by condemnation or purchase are enumerated by statute. Thereby he is required to take definitive action, at least as to locating the highway and fixing its boundaries, by formal written order. There is no such order which authorizes or justifies, or attempts to authorize or justify, the acquisition by condemnation or purchase for any purpose of the Appleton property. Also, what "the federal government has required" cannot alter the state law which controls. Anyway, we have nothing but the quoted item of testimony to show what that supposed requirement is.

Trunk highways are not, cannot be, established or their boundaries fixed, neither can they be judicially confirmed, on the mere testimony of anyone. All that must be done, under plain law, by the formal order of the commissioner. There is no such order, we repeat, including the Appleton property or any part of it.

The argument has indicated, without presenting for decision, another question. On behalf of the highway commissioner it has been suggested that he may acquire, within what limits has not been stated, additional ground, as in this case, for purposes of "beautification." It must be remembered that as matter of constitutional law, under the so-called Babcock amendment, Minn. Const. art. 16, § 1, the system to be established thereunder was to consist of highways and nothing else. Art. 16, § 2, is at some pains to say that the trunk highway fund thereby contemplated shall be devoted solely to the highway purposes specified in § 1. Those objectives did not include any system of parks or beautification, independently of a highway, in either an urban or rural community.

To illustrate, under modern conditions of traffic, there could be, we assume, no reasonable argument that it is not a legitimate highway purpose so to widen a right of way at a scenic or other proper point as to enable tourists to pause and park their cars thereon in positions of safety. On the other hand, there would be serious question, not merely of statutory, but also of constitutional, law if independently of a way of travel there was an attempt to spend from the highway fund for purposes of local "artistic development" such as the establishment and maintenance of a mere park. That issue, not now considered or decided, so looms close in the background of this case that it would seem to us a breach of public duty were we, by silence, to simulate indifference to, or ignorance of, either its near presence or its importance.

No one denies that the legislature may vest in, and has granted to, the commissioner of highways a vast power. When he acts within the limits and in the manner prescribed by law, no court may properly interfere. But not to be forgotten is the inescapable fact that art. 16 of the state constitution is a part of the law circumscribing both his powers and the execution thereof. Were we to hold that, out of the constitutional highway fund, wholly exacted from motorists, the commissioner may purchase land, anywhere and to any extent, for some purpose which officially and formally he does not disclose, and which is not otherwise shown to be for any highway use, we would be opening wide a conduit for an unconstitutional diversion of public monies constitutionally dedicated to a special purpose. The point has been argued at the bar and much considered. But there has been presented no reason or authority with persuasiveness adequate to justify our embarkation on a course so fraught with danger to constitutional limitations.

Judgment affirmed.