261 N.W. 874 | Minn. | 1935
Lead Opinion
"Parcel 47. An easement for the inundation of the following described tract or parcel of land, and the deposit thereon of silt, driftwood and debris, in times of freshets or floods, to-wit: [Here follows description of intervener's property].
"Names of persons interested in said Parcel 47 and nature of interest:
NAME NATURE OF INTEREST.
H.L. Kopp (a single man), Sole owner.
The Merchants Bank of Winona, Mortgagee.
"And it is further ordered that the title of said proceeding is hereby amended by adding the name of H.L. Kopp as a party respondent."
Commissioners were appointed, and they promptly qualified. They made and filed their report January 8, 1934, and awarded intervener $2,750 as damages. The state perfected an appeal from that award, and the matter came on for trial before the court and a jury on January 29, 1934. The state again renewed its objections and moved that the proceedings be dismissed, setting forth as grounds therefor that the court was without jurisdiction to include intervener's property; that the proceedings in condemnation had been legally closed and adjudicated upon the filing of the final certificate hereinbefore referred to; that the proceedings sought by intervener amounted to collateral attack upon a final judgment. The objections of the state were overruled, and the cause proceeded to trial, resulting in a verdict in intervener's behalf in the amount of $3,000. In submitting the case to the jury the court said, and this is the theory upon which recovery is based:
"The highway itself is not upon the respondent's land, but the maintenance of the highway interferes with the use of the land by reason of the fact that a bridge, which is a part of the highway, has been constructed and is being maintained in such a manner that it occasionally obstructs the flow of a watercourse across said land by becoming clogged with driftwood and debris, and thus *82 causing the creek to overflow its banks and inundate or flood the land.
"The state, in this proceeding, has acquired the right to obstruct the water course and flood the land in this manner. Such a right is called an easement. The Court, in preliminary proceedings, has defined the easement to be acquired in the following terms: An easement for the inundation of the land, and the deposit thereon of silt, driftwood, and debris in times of freshets or floods.
"The question for you to determine is what effect, in dollars and cents, has this easement upon the market value of the land? * * *
"The respondent, in this proceeding, is not seeking to recover damages for the loss of his crops. It is not a question of what the water has done in the past. The question, stated in practical terms, is how has the situation, created by the construction and, maintenance of this highway bridge, affected the market value of the land."
Later the state moved for judgment notwithstanding the verdict and, if that were denied, for new trial, setting forth various grounds upon which the blended motion was based. That motion was denied in its entirety. Upon intervener's application, the court made an order on April 4, 1934, directing that the clerk in entering judgment upon the verdict include interest upon the amount of the award from November 27, 1928, that being the date of the taking by the state of its easement for inundation upon intervener's land, the court assuming that there was in fact a taking thereof by the state. On May 31, 1934, judgment was entered for intervener and against the state in the amount of the verdict, $3,000, interest $992, and costs $45.15, in all $4,037.15. Appeal from that judgment brings the cause here for review.
Many assignments of error are involved and argued in briefs of counsel. In the view we take of this case it is necessary to consider only the following: (1) Did the court have jurisdiction, in view of the facts hereinbefore stated, to permit intervener to come into the case, i. e., to intervene? (2) If the court was authorized so to do, does the evidence warrant the conclusion that there was *83 a taking of the property of intervener, or was the state's act a mere trespass?
1. The right to intervene is covered by 2 Mason Minn. St. 1927, § 9263. It will be observed that one seeking to intervene must have "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 * * * in the pending action"; he must make a showing by complaint "before the trial begins, alleging the facts which show such interest, and demanding appropriate relief against either or both of the parties." 3 Dunnell, Minn. Dig. (2 ed.) § 4897a, defines intervention as "an act by which one voluntarily becomes a party to an actionpending between others." (See Faricy v. St. Paul I. S. Society,
That intervener knew of the condemnation proceedings during the pendency thereof is not disputed. In his affidavit in support of his motion to intervene he stated that he knew of these shortly *84
after the same were begun. He observed the grading of the highway and the building of the bridge, but claims he did not know "that its design was such as to obstruct the waters of said ditch and creek until August 16, 1932, when my land was flooded due to that obstruction." He had his chance to have his day in court but did not seize the opportunity. Condemnation proceedings being in rem, lack of notice, in the personal sense, is immaterial. The case relied upon, State, by Benson, v. Stanley,
"In constructing the highway and as part of the engineering plan, the commissioner diverted waters from their natural courses and watersheds and cast them upon this 40 to its damage. The use will be permanent. The defendant's claim is that he should have compensation for the damages done to this 40, and, since he cannot sue the state, that the 40 should be brought into the condemnation proceeding for the assessment of damages by the commissioners. That the 40 was taken or used andis damaged is not in question on this motion." (Italics ours.)
We cannot inflate that rule so as to permit an intervention after the proceeding has come to an end. Nothing remains in which to intervene. If we were to sustain the result below it would practically mean that our highway condemnation cases are subject to reopening at any time. Only the doctrine of laches could apply. There is no statute of limitations covering the matter, and we lack the power to make one. As to "time to intervene," see 20 R.C.L. p. 688, § 27.
2. Further discussion is perhaps unnecessary in view of what has been said. But it may not be amiss to suggest that the two acts of trespass, and we think that is the most that can be said of the state's acts, cannot be made the means of or basis for saddling *85 the state with an easement for all time to come against its wishes and contrary to its purposes or requirements. That intervener is virtually a plaintiff in a negligence action clearly appears. In the statement of facts in his brief he has this to say:
"The nub of the case is that the dump which carries the State's highway was thrown across a waterway and constitutes a dam except as it is relieved by a bridge; this bridge is constructed like boxes with the ends out, laid side by side, so that in times of high water when a clear opening is needed most, the vertical partitions, which form the sides of the sluiceway boxes, halt and collect debris in the stream and plug shut so that the bridge and dump make a complete dam which floods and ruins Kopp's market garden, situate a short distance above the bridge, and result in practical confiscation."
Between the location of the bridge complained of here and intervener's land is another bridge different in construction and as to which no complaint is made. The most that can be said against the state's bridge is that it is a negligent piece of construction; that by reason of "vertical partitions" which "halt and collect debris in the stream" the bridge is converted into "a complete dam which floods and ruins" intervener's market garden during seasons of high water. Obviously the matter is not beyond remedy. The state should not be compelled to buy what is neither needed nor wanted. In the aggregate of all such easements the cost may be many times the expense of remedying the defect. Under these circumstances, the rule stated in Jungblum v. M. N. U. S.W. R. Co.
"The plaintiff's land was and is flooded by the negligent construction of the defendant's roadbed across a natural channel for surface water, without a culvert therein to let such water pass off in its accustomed course. Held, that the injury is not permanent in its nature, and the measure of damages is the diminution in the rental value of this land by reason of the injury, computed to the commencement of the action." *86
And further (
"It is true, as suggested by the trial court in justification of the instructions and here urged by counsel for the plaintiff, that the plaintiff, by his complaint, recognizes the right of the defendant to continue to flood his land, and alleges that it will always continue to be injured by such flooding, and seeks to recover his entire damages for all time in this one action. It is also true that the defendant has neither alleged nor proved any intention of constructing a culvert in the embankment. But calling the injury permanent does not make it so. The facts of this case must determine the character of the injury and the measure of damages, not names or claims. The facts as established by the evidence and verdict, under the instructions of the court, are that the defendant might have constructed a culvert in its roadbed, and thereby have carried off the surface water through its natural channel, without injury to any landowner, but that it negligently constructed its roadbed without any culvert, and thereby unnecessarily and unreasonably flooded the plaintiff's land, and that, if a culvert was now put in, the water would not flow upon the plaintiff's land."
Judgment reversed.
Dissenting Opinion
I cannot accede to the majority view. Kopp's property has been taken by the state, and he has received no compensation therefor. He has lost two years' crops, and the market value of his land has been materially decreased. The majority opinion summarily denies Kopp any compensation for this taking and, by relegating him to the legislature, in effect denies him any relief. Sending Kopp to the legislature is a sterile, fruitless procedure. In view of this fact and in view of the fact that Kopp will get no relief unless we give it to him, I believe we should not adhere to technicalities. We should hold that Kopp's time to intervene has not lapsed. The majority opinion overlooks substantial justice and adheres to technical nicety. I believe that the certificate here filed pursuant to 2 Mason Minn. St. 1927, § 6557-1, did not end the proceeding so as to prevent Kopp from intervening at this time. The proceeding is *87 entirely statutory, and I believe we should interpret it liberally so as to accomplish substantial justice.
In my opinion the court correctly held that the state acquired an easement to flood Kopp's land. Art.
"The showing at the present time is that the state planned and constructed a trunk highway west from Waseca 15 miles and included in the condemnation proceeding lands which it thought necessary, and is making use of defendant's 40, for which it made no compensation. It was proper to include this 40 and to award damages. The state invoked the jurisdiction of the district court to acquire the right of way for the general road project. If the condemnor had been a railroad or a municipality the defendant would *88 have had a remedy by suit for damages or by injunction. Here he has no remedy by suit for damages. Whether he might have enjoined the use of this 40 by a proceeding against the highway commissioner we do not consider. Since the state has chosen to invoke the jurisdiction of the court in the establishment of a comprehensive trunk highway and has chosen to use and damage the defendant's 40 without condemning it, we hold that the landowner may intervene by motion in the condemnation proceeding and that the court may say to the state that it must bring the land of the defendant, concededly taken and damaged, into the proceeding for the assessment of compensation. And this seems almost a necessary result of the constitutional provisions mentioned. The state cannot, with decent regard for the due process of law provision, and the provision giving everybody a remedy for wrong done his property, and the special provision against the taking of property for public use without compensation, leave out property which it uses or damages in a public project and prevent the owner from having compensation, all because it cannot be sued. If in going west from Waseca the state had left a mile gap in the highway uncondemned but used and then resisted the powers of the court to decree compensation to its owner, its position would be more startling but little different."
The lower court, having decided in the case at bar that the state had acquired an easement on Kopp's property, left the question to the jury as to whether or not Kopp was entitled to compensation therefor; that is, he let the jury determine how much of the damage to Kopp's property was caused by the state's actions in building the bridge and whether the land was of any value before the flooding. This was proper. The court instructed the jury that the state had acquired an easement to flood Kopp's land and that they, the jury, were to determine the difference between the market value of the land before and after the acquisition of the easement and were to award compensation to Kopp for that share of the decrease in market value caused by the building and maintenance of the bridge and the consequent flooding, but not for any decrease in market value due to any other causes such as a faulty ditch, poor *89 dikes, etc. By finding for Kopp the jury impliedly found all the controverted issues in his favor. The instruction was fair. Under it the jury could have found that the market value of Kopp's land was not decreased if, for instance, they had believed the land to be of no value before flooding, or if they had believed that the flooding did not harm the particular use to which this was put. Also, the jury could have found that the maintenance of this bridge was not the cause of this flooding but that the same was caused by other agencies. In other words, the jury could find that the easement acquired by the state was to be used little or none at all and therefore that the market value was not decreased. This would in effect have been a finding that agencies other than the state caused the damage. The evidence was for the most part conflicting. There was, however, ample evidence to sustain the finding that the land was valuable before it was flooded; that the flooding was not an act of God but was caused by usual rains; that the county ditch was not the cause of the flooding but that the same was adequately and properly constructed and properly maintained.
In my mind there can be little question but that the court had the right to define the easement here in view of the Stanley case,
The jury is to determine the amount of compensation to which an owner is entitled, if any, because of the state's acquisition of an easement. This will be determined by taking the difference between the market value of the property before and after the acquisition of the easement by the state. The procedure here outlined *90 must of necessity prevail if justice is to be done. In the usual case the state will not include such property in its condemnation proceeding. Relegating the owner to the legislature means nothing. So the court should allow such intervention in condemnation proceedings and, of necessity, must determine the extent of the easement. The state is an unwilling party and cannot be expected to define the easement as it does in the usual case. Further, the intervener is a poor judge thereof. So the court must define the easement.
In my belief it was not error to let Kopp intervene even though the final decree in the condemnation proceeding had been rendered some two years previously. Herein lies the only distinction between this case and the Stanley case,