206 N.W. 447 | Minn. | 1925
The proceeding was begun by the petition of 24 freeholders, for the establishment of the road from the west to the east boundary line of Itasca county, pursuant to section 2582, G. S. 1923. An old road crossed the county from east to west, but was not well located, and the purpose of the proceeding was to straighten it. A portion of the new road was constructed, but not that portion which would have crossed relator's land, the old road being kept open and in use. When the order establishing the new road was made, the relator was awarded $1,500 as damages.
No appeal was taken from the order establishing the road or from the award of damages.
The learned trial judge made a clear and comprehensive statement of his reasons for sustaining the demurrer, citing the pertinent authorities. After referring to the allegations of the answer that the county does not intend to build the road over relator's land and is willing to abandon and has abandoned its original purpose in that regard, he said that the statutes contain no provision for the discontinuance of a proceeding to acquire land for the construction of a public highway; that, after the expiration of the time to appeal, the award of damages has the same force and effect as a judgment; that the right of the county to appropriate the land then becomes fixed, and that the landowner's right to the compensation awarded becomes a vested right.
We think this is a correct interpretation of the statute, notwithstanding the persuasive argument to the contrary advanced by appellants' counsel. The gist of the argument is that the relator's right to receive payment of the damages awarded could not come into existence until her land was actually taken; that, if she may compel payment now and the road is never opened for travel, she *305 will have her land as well as the money, and that such a result would be unjust to the county and its taxpayers.
The ultimate question to be determined may be thus stated: When must payment be made of the damages awarded to a landowner upon the establishment of a county road? Appellants answer: When the land is actually taken. Relator answers: When the road is established.
The statute provides that the damages must be assessed and awarded before the road is opened and worked, G. S. 1923, § 2582, but this does not answer the question as to the time of payment. Under section 13, article 1, of the state Constitution, private property may not be taken for public use without just compensation first paid or secured. When property is taken by the state, the constitutional requirement is satisfied if the amount to be paid is made a charge upon the public treasury of the state or of a municipal subdivision thereof. State v. Messenger,
Attention is called to G. S. 1923, § 2588, which requires a town, before opening a town road, to issue a town order and deposit it with the clerk to cover the damages awarded to a landowner. It is argued that this evinces an intention on the part of the legislature to withhold payment of the damages awarded to a landowner until possession of the land is to be taken, and that the same rule should be applied whether the road is established by the county board or the town board. We cannot adopt this argument. For some reason the legislature has put county roads in one class and town roads in another and has prescribed different methods of procedure *306 for their establishment. In construing the provisions applicable to one class, those applicable to the other may be considered, but are not determinative. The provisions of section 2582 differ from those found in section 2588 in so many respects that each section must be construed separately.
Particular attention is called to subdivision 5 of section 2588, which is to this effect: Although an appeal may be taken from an order awarding damages, a county road may be opened during the pendency of the appeal. It is argued that, since the payment of damages is not a condition precedent to the exercise of the right to open the road, the right to receive payment is conditional and may not be enforced until the public authorities proceed to open the road for travel.
The statutory provision above mentioned casts little light on the question to be answered. When an appeal is taken, the damages cannot be paid until they have been ascertained, that is, not until after the appeal has been disposed of. If the appeal stayed the opening of the road, the delay might inconvenience the public, and this is a good reason for permitting the county authorities to open it before the damages are finally determined. The ultimate payment of compensation to the landowner is secured because the county treasury is charged with the payment thereof. For these reasons, we think there is little force to the argument that, if there be no appeal, a landowner cannot compel payment of the award before a physical taking of his land.
It is contended that the proceeding to appropriate the land has been abandoned and that, therefore, relator's right to demand payment of the award has been extinguished. The contention cannot be sustained. It may be that the county board has a right to drop proceedings before the making of the order establishing the road, but, however that may be, when once the order is made, it is too late to do so. See State v. Anding,
In a proceeding initiated by a railroad company to acquire a right of way over private property, it was held that the filing of the *307
award of the commissioners is to be deemed a constructive entry and taking and that the rights of the parties are to be determined as of that time. Warren v. First Div. St. P. Pac. R. Co.
In every form of procedure for appropriating land for the public use, there must be a point where the right of the condemner to abandon the proceeding is lost and the right of the landowner to compensation becomes vested. As a general rule the condemner cannot deprive the landowner of a vested right to compensation by abandoning the proceeding. The theory upon which his rule is based is that, upon final termination of the proceeding, the right of the condemner to take and hold the land and the right of the landowner to the money are correlative and coincident and vest simultaneously in the respective parties. Witt v. St. P. N. P. R. Co.
Of course the rule is different where the statute authorizes an abandonment of the proceeding, Rowe v. City of Minneapolis,
There is an intimation in City of Duluth v. Lindberg,
Order affirmed.
Mr. Justice Stone took no part.