233 Minn. 274 | Minn. | 1951
Appeal from an order of the district court dismissing the appeal to that court by Northern Natural Gas Company from an order of the board of county commissioners approving and confirming the viewers’ report awarding no damages to said appellant in connection with the establishment of county ditch No. 78, Blue Earth county.
Appellant is a private corporation, incorporated under the laws of the state of Delaware and authorized to do business in this state by virtue of a certificate of authority duly issued by the secretary of state. It owns, operates, and maintains a natural gas pipe-line system through which it transmits its own natural gas purchased or produced at fields in Texas and Kansas to points in several states, including Minnesota. It operates under a certificate of public convenience and necessity issued by the Federal Power Commission.
County ditch No. 78 was established by order of the county board for Blue Earth county on August 17, 1918. It is antici
County ditch No. 78 will be an open ditch considerably deeper than appellant’s pipe line at the three points of intersection. It will be an enlargement and deepening of a natural watercourse for surface waters and will replace the existing drainage facilities at these three locations. The construction of the ditch will make it necessary for appellant to alter or reconstruct its pipe line by either raising or lowering the pipe at each of said crossings. This will require a substantial expenditure by appellant.
It is conceded that construction of the proposed ditch will provide more efficient drainage for the 10,000-acre watershed to be served thereby; that it is the only practical means of draining the area in question; and that it will be a public benefit and utility which will promote the public health and welfare. Appellant concedes that it is subject to the proper exercise of the police power of this state
The motion to dismiss the appeal was heard in the district court upon stipulated facts and certain oral testimony offered by respondent. It appears from the trial court’s memorandum attached to its order dismissing appellant’s appeal that it found that the construction of county ditch No. 78 constituted an enlargement and deepening of a natural watercourse and the present drainage facilities at the three locations in question; that appellant’s easements were subject to the natural right of drainage; and that appellant was charged with notice that the natural watercourse and drainage facilities in existence when it obtained its easements and installed its pipe line might be improved and enlarged in the future. It concluded, therefore, that it was ap-
Appellant contends that the evidence shows only that there was a prairie swale or depression at these locations before the present drainage facilities were installed. .The testimony on this point is not too clear. The most that can be claimed from the evidence in this regard is that previously there was a well-defined natural watercourse for the drainage of surface water at these three locations. For purposes of this appeal, we will assume such to have been the fact. Respondent does not claim that there ever was a creek or river bed at the locations in question.
On appeal, appellant contends that it is entitled to damages because respondent in establishing the ditch was exercising its power of eminent domain, and that appellant’s property has been taken or damaged for a public use within the provisions of the state and federal constitutions and the drainage laws of this state.
Respondent, on the other hand, contends that the maxim damnum absque injuria is applicable because the establishment of a drainage system is the exercise of the police power functioning through the power of eminent domain, and that at the time appellant obtained its easements there was a natural right to drain the upper lands across the land covered by its easements, which right was part and parcel of said upper lands and one that appellant’s grantors could not and did not convey.
In view of this court’s decision in In re Town Ditch No. 1, 208 Minn. 566, 295 N. W. 47, there should be no question that respondent in establishing county ditch No. 78 was exercising its delegated power of eminent domain. This court there stated (208 Minn. 571, 295 N. W. 49):
“* * * our statutory drainage proceedings invoke the power of eminent domain is plain. That is why the statutes in*279 such mandatory fashion require compensation for all damage done.
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“* -* * Their damage, if any, will result from the exercise of power of eminent domain. So it is immaterial that, from the standpoint of public health, the police power justifies the drainage. The property is taken or damaged, not hy the police power, hut hy that of eminent domaJvn. Hence the right to compensation is absolute.” (Italics supplied.)
See, also, Lien v. Bd. of Co. Commrs. 80 Minn. 58, 62, 82 N. W. 1094, 1095.
M. S. A. 106.151 (L. 1947, c. 143, § 15), which was in effect at the time county ditch No. 78 was established,
“The viewers, with or without the engineer, shall view all lands and properties benefited or damaged hy the proposed drainage system and shall make their report thereon. [Italics supplied.]
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“The viewers shall report all benefits and damages that will result to all railways and other utilities, including lands and property used for railway or other utility purposes.
“* * * to the state of Minnesota and all counties and other municipal corporations resulting from the proposed drainage system. When any public road or street shall be found to be benefited or damaged, the state or the county, or other corporation, which is by law charged with the duty of keeping such road or street in repair, shall be assessed or allowed the amount of benefits or damages accruing to such road or street; except that benefits and damages assessed and allowed for bridges or culverts*280 shall be assessed and allowed to the state, county or other municipal corporation which is by law charged with the duty of constructing and maintaining such bridge or culvert as required by section 106.271.”
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.”6
Although appellant does not own the fee title to the real estate here involved, it does own an easement in the land in each instance. An easement is property, and when taken for public use the owner ordinarily is entitled to compensation. Adams v. C. B. & N. R. Co. 39 Minn. 286, 290, 39 N. W. 629, 631, 1 L. R. A. 493; In re Appeal of Sowers, 175 Minn. 168, 170, 220 N. W. 419, 420; Burnquist v. Cook, 220 Minn. 48, 19 N. W. (2d) 394; United States v. Welch, 217 U. S. 333, 339, 30 S. Ct. 527, 54 L. ed. 787, 789; Panhandle Eastern Pipe Line Co. v. State Highway Comm. 294 U. S. 613, 618, 55 S. Ct. 563, 565, 79 L. ed. 1090, 1095.
Section 117.02, subd. 2, defines “taking” as applied to property within the meaning of the general eminent domain statutes of this state as follows:
“The word ‘taking’ and all words and phrases of like import include every interference, under the right of eminent domain, with the ownership, possession, enjoyment, or value of private property.”
Subd. 3 thereof defines the word “owner” as “all persons interested in such property as proprietors, tenants, encumbrancers, or
“Under the modern construction of the term, a ‘taking’ of property for which compensation must be paid does not require an actual physical taking, but may consist of an interference with the rights of ownership, use, and enjoyment of property.” 29 O. J. S., Eminent Domain, § 110.
See, also, 18 Am. Jur., Eminent Domain, §§ 156, 157.
Thus, in the early case of Adams v. C. B. & N. R. Co. supra, this court recognized that the “taking” contemplated by our constitution is not confined to the act of physically depriving an owner of possession of his property. That case involved the construction of a railroad along a public street on the side opposite plaintiff’s lot. In addition to his ownership of the fee to the middle of the street, plaintiff owned an easement in the portion of the street where the railroad was to be built. It was there conceded that the railroad company would not actually succeed to plaintiff’s easement in the sense of physically taking possession of it. However, in holding that plaintiff could recover damages, this court stated (39 Minn. 290, 39 N. W. 631) :
“* * * But it may destroy or materially impair it by rendering it impossible for the owner of it to enjoy it to the full extent that he is entitled to. Such destruction or impairment is within the meaning of the word ‘taken,’ as used in the constitution, as fully as is the depriving the owner of the possession and use of his corporeal property.”
Not only the taking but the damaging of private property must be compensated under Minn. Const, art. 1, § 13. In re Application of Hull, etc., 163 Minn. 439, 204 N. W. 534, 205 N. W. 613,
In Panhandle Eastern Pipe Line Co. v. State Highway Comm. supra, the United States Supreme Court stated (294 U. S. 618, 55 S. Ct. 565, 79 L. ed. 1095):
“* * * * private right of way is an easement and is land. United States v. Welch, 217 U. S. 333, 339, 30 S. Ct. 527, 54 L. ed. 787, 789. No compensation was provided for; none was intended to be made. Ordinarily, at least, such taking is inhibited by the 14th Amendment. Chicago, B. & Q. Ry. Co. v. Chicago, 166 U. S. 226, 241, 17 S. Ct. 581, 586, 41 L. ed. 979, 986; Chicago, B. & Q. Ry. v. Drainage Comm’rs, 200 U. S. 561, 593, 26 S. Ct. 341, 350, 50 L. ed. 596, 609; McCoy v. Union Elevated R. Co., 247 U. S. 354, 363, 38 S. Ct. 504, 507, 62 L. ed. 1156, 1165; Chicago, B. & Q. Ry. Co. v. Public Utilities Comm’n, 69 Colo. 275, 279; 193 Pac. 726, 728. See Lewis, Eminent Domain, (3d ed.) § 223.
“A claim that action is being taken under the police power of the State cannot justify disregard of constitutional inhibitions. Schlesinger v. Wisconsin, 270 U. S. 230, 240, 46 S. Ct. 260, 261, 70 L. ed. 557, 564; Georgia Power Co. v. Decatur, 281 U. S. 505, 508, 50 S. Ct. 369, 370, 74 L. ed. 999, 1003; Southern Ry. Co. v.*283 Virginia, supra, p. 196 [290 U. S. 190, 54 S. Ct. 148, 150, 78 L. ed. 260, 265].” (Italics supplied.)
Clearly, here there has been a taking or damaging of appellant’s private property for a public use within the terms of our drainage laws, as well as the provisions of the state and federal constitutions. Therefore, the only question that remains for consideration is whether appellant was entitled to be awarded damages for the cost of reconstructing its pipe line to accommodate the new drainage ditch.
Respondent contends that the doctrine of damnum absque injuria (damage without legal injury) is applicable here, and that it is the uncompensated duty of appellant to reconstruct its pipe line at said crossings so as not to interfere with the construction of county ditch No. 78 and with the flow of surface waters therein.
In support of its contention respondent cites the following cases: C. M. & St. P. Ry. Co. v. City of Minneapolis, 115 Minn. 460, 133 N. W. 169, 51 L. R. A. (N. S.) 236; C. M. & St. P. Ry. Co. v. Sprague, 140 Minn. 1, 167 N. W. 124; Twin City Separator Co. v. C. M. & St. P. Ry. Co. 118 Minn. 491, 137 N. W. 193; Bybee v. City of Minneapolis, 208 Minn. 55, 292 N. W. 617; C. B. & Q. Ry. Co. v. People ex rel. Drainage Commrs. 200 U. S. 561, 26 S. Ct. 341, 50 L. ed. 596; New Orleans Gas Light Co. v. Drainage Comm. 197 U. S. 453, 25 S. Ct. 471, 49 L. ed. 831; C. B. & Q. R. Co. v. Board of Supervisors (8 Cir.) 182 F. 291, 31 L. R. A. (N. S.) 1117.
Because here the damage to appellant’s property “results from an exercise of the power of eminent domain, and in consequence the statute [M. S. A. 106.151] to say nothing of the constitution, requires compensation” (In re Town Ditch No. 1, 208 Minn. 573, 295 N. W. 50), the order of the trial court must be reversed.
Beversed.
Natural Gas Act, June 21, 1938, 52 Stat. 821, c. 556, 15 USCA, § 717, et seq.
Pursuant to a certificate of public convenience and necessity issued by the Federal Power Commission to appellant under the provisions of the grandfather clause of the Natural Gas Act, 15 USCA, § 717f(c).
State v. Creamery Package Mfg. Co. 110 Minn. 415, 126 N. W. 126, 623.
The prior statute, § 106.17, subd. 2, provided:
“The viewers shall report * * * the damages awarded to each municipal or other corporation, and to each person, or association of persons, telephone or telegraph line or other personal property, and from the necessary construction and maintenance of any bridges, culverts, or other works rendered necessary by the establishment of such drainage improvement, * *
U. S. Const. Amend. V, provides:
“No person shall * * * be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”
Amend. XIV provides in part:
“* * * nor shall any state deprive any person of life, liberty, or propf erty without due process of law, nor deny to any person within its juris-dition the equal protection of the laws.”
The syllabus to the court’s opinion in In re Application of Hull, etc., supra,, defines the meaning of the word “damaged” as used in Minn. Const, art. 1, § 13, as follows:
“The word ‘damaged,’ used in section 13, art. 1, of the state Constitution, * * * refers to damage which could have been recovered at common law had the acts which caused the damage been done without constitutional or statutory authority. Under the Constitution and statute, to entitle a landowner to damages, he must show that he has suffered an injury different in kind from that suffered by the general public.” See, also, Stuhl v. G. N. Ry. Co. 136 Minn. 158, 161 N. W. 501, L. R. A. 1917D, 317; McCarthy v. City of Minneapolis, 203 Minn. 427, 281 N. W. 759.
New Orleans Gas Light Co. v. Drainage Comm. supra, held that it was the uncompensated duty of a gas company to move its lines where they had been laid in a city street pursuant to a franchise from the city. The other cases respondent relies upon all held that it was the uncompensated duty of a railroad company to build bridges or otherwise accommodate its tracks to either highways, rivers, or drainage ditches.
These and similar cases involved primarily constitutional as distinguished from statutory considerations where it was held that the damage resulted from the exercise of the police power and that the principle of damnum absque injuria applied. They are based upon one of two grounds: (1) That
Neither of these grounds is present in the instant case. See, Panhandle Eastern Pipe Line Co. v. State Highway Comm. 294 U. S. 613, 55 S. Ct. 563, 79 L. ed. 1090, rehearing denied, 295 U. S. 768, 55 S. Ct. 652, 79 L. ed. 1709 (reversing State Highway Comm. v. Panhandle Eastern Pipe Line Co. 139 Kan. 185, 29 P. [2d] 1104, rehearing denied, 139 Kan. 849, 33 P. [2d] 151) and Cities Service Gas Co. v. Riverside Drainage Dist. 137 Kan. 410, 20 P. (2d) 520, in both of which cases it was held that gas pipe-line companies were entitled to recover damages for the reasonable cost of relocating their pipe lines under circumstances similar to those presented here independent of statute and that to deny the pipe-line company damages therefor would be unconstitutional. Cf. Commonwealth v. Means & Russell Iron Co. 299 Ky. 465, 185 S. W. (2d) 960.
As pointed out in In re Town Ditch No. 1, 208 Minn. 566, 568, 295 N. W. 47, 48, the right of natural drainage and flowage of surface waters considered by this court in Sheehan v. Flynn, 59 Minn. 436, 61 N. W. 462, 26 L. R. A. 632, relates exclusively to private rights and activities and is not applicable to public drainage proceedings which are for the public benefit. For recent application of the rule of the Sheehan case, see Duenow v. Lindeman, 223 Minn. 505, 27 N. W. (2d) 421, and Enderson v. Kelehan, 226 Minn. 163, 32 N. W. (2d) 286.
Nichols v. City of Duluth, 40 Minn. 389, 42 N. W. 84, 12 A. S. R. 743; McCullough v. St. P. M. & M. Ry. Co. 52 Minn. 12, 53 N. W. 802; Morgan v. City of Albert Lea, 129 Minn. 59, 151 N. W. 532; 18 Am. Jur., Eminent Domain, § 159; 20 C. J., Eminent Domain, § 151; 29 C. J. S., Eminent Domain, § 121.