*1
223;
Minn.
260 N. W.
City
Eveleth,
v.
ex rel. Bozicevich
Minn.
Mr. Loring, Justice this case. or decision no consideration part BY HARRY H. ATTORNEY STATE, PETERSON, GENERAL, BENTLEY AND
JOHN W. OTHERS. BIG COMPANY, MINNESOTA MUTUAL LIFE INSURANCE MEDBERY, STONE CANNING WENDELL COMPANY, OTHERS, AND INTERVENERS. BURNQUIST EX A. A. COURT
STATE REL. J. v. DISTRICT OF BIG STONE COUNTY AND OTHERS.1 33,446, 33,523. 33,499, 33,522,
Nos.
December 1943. (2d) 1Reported in 12 N. W. *3 Attorney General, Deputy A. A. Chester Burnquist, Wilson,
J. Attorney General, and 8am W. Attor- Campbell, Special Assistánt ney General, for the State.
Carl J. Eastvold, Victor E. E. V. E. Anderson, Cliff, Kraus, C. and George T. Havel, respondents.
Henry M. Gallagher, Chibe Justice. 1935,
In June state, by its attorney general, pro- initiated ceedings Big in the district court of county Stone condemna- tion certain that county lands to be taken in con- proposed nection with the construction of a work as project relief known A. “F. Big Project.” Stone-Whetstone were 1— instituted pursuant to Mason St. c. and amended, as L. 1935, c. 51, under the and authority direction of the state execu- tive council. An order granting the state’s and appoint- ing appraisers to ascertain and report the amount of damages filed the several owners reason September 1935. Work on the fall project was commenced in of 1935 completed in spring of completion, but certificate thereof, with approval required has not been filed Minn. as St. 117.20(4), (Mason St. 6557-1 All lands [d]). § condemned the state are located at the end southerly Big Stone Lake. The lake extends about 25 miles to the north and west so lands taken and forms the border between Minnesota South place. Dakota at that
The controversies here involved have to do with tracts of land included in the original petition. of these One tracts consists of 1,251 acres located at the head and northerly Big end of Stone Lake and is jointly by owned the Minnesota Mutual'Life Insurance Com- pany Medbery It is Brothers. referred to the briefs will hereinafter be referred Medbery land. About one-half of *4 this is tract located Minnesota and one-half in South Dakota. The other tract by consists of 335 acres and owned Big Canning Stone It Company. is located about two south miles county, end of the lake Stone southerly Big and the the outlet this state. served Medbery
In the owners of the lands on January 1938, by they sought which to attorney general petition a intervention proceedings. bring their Minnesota land into the condemnation and main- in the construction They alleged petition their waters from and of the diversion of project tenance because and the Big Stone Lake the Whetstone River into the reservoir flooded and lake their lands were impounding of such waters to destroyed their to such an extent as constitute crops hearing on the By parties of such lands. stipulation was which petition indefinitely stipulation, was continued. The brought might the matter be by court, provided approved days’ by written either hearing upon on for “at time notice hearing August It on party.” brought by petitioners on for they at which time amended their to include damages years for the 1937 to inclusive. the court appeared specially
At and moved hearing this state motion was “over- petitioners. This deny to to peti- granting on an order was filed ruled,” October proceedings their lands into application bring tioners’ to thereto. damages appraisers report ascertain appointing was denied this order motion the state to vacate subsequent A the damages commissioners found 1942. The on October appealed to be and the $22,240, Minnesota lands petitioners’ also county. Big Stone award to the district court from the order October 33499) from the (Case No. this court appealed from the order petitioners’ lands into the bringing order. refusing of October 30 vacate order of again the state moved that-the January 23, 1943, On granted permission and that 1942, be vacated October trial motions were denied which ansiver, file proposed from the order appealed that, having the state ground court on the jurisdic- without the court was vacate, motion to it sought this *5 from the motion. The in Case No. appeal tion entertain 33523is denying motion. the order August 17, 1942, Medbery
On the owners of the served on lands attorney general petition to bring their South land Dakota into proceedings. This petition was noticed for hearing on August heard at 29,1942, which time appeared the state specially objected to the jurisdiction of the court. The objection was and on October overruled, an order filed granting petition and appointing appraisers to ascertain and assess A damages. motion by the state to vacate denied this order was on October
A writ of prohibition issued out of this court on peti- the state’s tion on November 1942, restraining further in the proceedings district court until the further order of this court. This No. case, 33466, is here on the petition, writ, return thereto.
A petition in intervention Big Canning Company Stone bring its land into the proceedings attorney on Avasserved general and noticed for hearing on ap- October 1942. The state peared specially and objected jurisdiction to the the court. the petition upon also demurred to grounds: jurisdiction “1. That the court has not of the State person Minnesota; “2. jurisdiction That court has subject not matter in the action of said in respect petition intervention; in “3. That the facts stated in said intervention do constitute cause action.” ques-
The court overruled the demurrer, a certificate that the presented “important tions Avere and doubtful.” This appeal (Case No. is from that order. 33522) hearing consolidated for in this court.
The four cases were by the various questions presented appeals The determinative court have entertain the re- are: Did the district and, so, petitions if did the intervention; spective petitions into ordering warranted the court facts which therein, the lands described to the end that such lands might be damages condemned and awarded to the owners thereof. These questions No. clearly appear 33499, involving Medbery Case land, Minnesota be discussed connection with will the appeal in that case. there said apply What will to the other appeals points The other raised Cases Nos. applicable. insofar separately. will be treated 33522, and 33523 No. Case *6 to authority hear and determine cause.” “Jurisdiction is upon depends 2 & cited. Dunnell, Dig. Supp. 2345, cases § controversy matter in and declare of the court to hear the the 313, 116 Minn. 133 ex rel. Kinsella v. Eberhart, the law. State rel. 1913B, 785; L.R.A. Ann. State ex 857, (N.S.) 788, N. W. 39 Cas. jurisdiction 262 278, Decker v. 195 Minn. N. W. 684. Montague, wholly depends proceedings of in condemnation a court tribunal pre it has after decided authorizing it; only upon the statute exercise- in the court questions may its favor liminary jurisdictional Minn. 245 277, 187 County, Nelson, Tail v. jurisdiction. of Otter Ohio Muskingum C. Dist. 53 D. Harter Bank v. W. 427;W. Geo. N. Y. 179 N. Comesky Village Suffern, v. of (2d) 996; 4 N. E. 325, App. 1193, 232. Domain, p. Eminent 320; S., 72 N. E. 29 C. J. § at proceedings jurisdiction in condemnation once the However, State, proceedings. termination of the is retained until a taches, it by 509; State, 247 N. W. Minn. v. 188 Benson, Stanley, of St. City 714; N. W. Minn. 273 Werder, v. 200 Peterson, Mo. 41 S. W. Weber, Louis v. required Minn. St. been filed as having final certificate
No had 6557-1 court [d]), St. the (Mason 117.20(4), 1941, § in when the condemnation jurisdiction certificate been still has. Had a presented, intervention a different situation petition, of the prior presentation filed Minn. Hall, by Youngquist, State, would have existed. N. W. 874. contention of the of It is the the exercise domain of right of eminent the affirmative determination what necessary any given purpose legislative lands are is purely designated by legislature to be exercised agency judicial except free from where it there interference, appears been a abuse of an element not taking, has clear discretion . argument instant proceedings involved There is no rule it is within the discretion to determine legislative what be taken for use. Nor effort made public shall here to circumvent that rule. The court is not to decide attempting land, may or the extent which it propriety need here, be taken. has when, appears legislature lawfully But authority to an delegated agency what lands are determine when that given project, taken for a has exercised agency the authority delegated in so such a manner as to result ac tual taking of private property, the court having subject matter and the parties may properly just determine the compensation be paid In therefor. differentiating between the respective provinces legislature and of the courts exercise power eminent domain, this court in State ex rel. Reed, Smith v. Van 125 Minn. 194, 196, 145 N. W. said: “* * * The legislature can take private property against the will *7 of the owner only public just use and after compensation to the owner has paid been or secured. Except as restricted and con- by trolled these two requirements, power of legislature private take is property unlimited and its determination so to do conclusive. Whether use be and public whether proper compen- sation made judicial* has been are questions, the final determination of which courts. other questions rests All involved in the property are of private legislative a nature; and the de- questions by termination such the legislature, by or an agency by acting authority established under the of the legislature, is by final be reviewed and cannot the courts.” forth by The same in State, Benson, rule is set v. Stanley, 188 Minn. 154 247 N. v. 509, supra,; State, Hilton, W. Minn.
390, by Voll, 72, 155 192 N. W. ex rel. v. Board 87 188; State Utick of Co. Commrs. L. 325, Minn. 92 N. 60 R. 161. 216,W. A. of land which
Flooding results serious to its interruption necessary use is “taking” Pumpelly common a of the property. U. Bay Green Co. 13 S. 20 There (Wall.) 181, v. L. ed. 557. 166, the court said:
“* * * actually where real estate by superinduced is invaded of water, earth, sand, having additions or other material, structure on im- placed it, effectually destroy artificial so as to pair its it is a usefulness, taking, meaning within the of the Con- stitution.”
That case cited and this court v. Mis was followed in Weaver Co. N. 534, & Rum River Boom 28 Minn. 11 W. sissippi compelling The court in the case is not the-condemnation present Const, Minn. which merely 1, 13, art. property. enforcing It is or dam- taken, destroyed shall not be provides: “Private first just paid without public use, compensation therefor aged the state’s of eminent provision or secured.” This limits government limited U. just as that of federal S. domain rel. v. Minn. 194, ex Smith Van 125 Reed, Amend. V. State Const. 967, supra,. N. W. 145 v. Supreme Court, Lynah, United States
The United States
L.
turning
S. Ct.
47
ed.
held that the
U.
23
S.
an
into
irreclaimable
valueless
plantation
rice
valuable
necessary
improvement
navigation
result
an
under-
bog,
is a
government,
“taking”
land,
United States
by the
taken
of the Fifth Amendment. Flooding of
meaning
land
within
Pitts,
in Finnell v.
Ala.
“taking”
“The 1927, Chap- Minnesota Statutes of tion under Mason’s ter amended, otherwise, any carry land needed to on work relief and employment herein for provided and, appropriate cases, convey land to the United- projects States needed for or in financed whole part by the United States.” In instituting and conducting the proceedings, attorney gen- eral complied strictly with applicable of Minn. provisions St. c. (Mason St. 1927, 41). c. III Paragraph of the petition states the purposes which the lands were to be taken as re- quired by Id. (§ 6541). 117.05 It reads: purposes
“That the for which said lands are to be acquired tois create and perpetually maintain a reservoir or reservoirs for the stor- adequate and the age supply of water in Big Stone Lake and to perpetually regulate and control floods all of which will aid in the conservation and development of the natural resources of the State and and promotion conservation of the public health, safety, general people welfare of the State of Minnesota, and to end, the purposes stated, build, erect and perpet- ually maintain dams, dikes, spillways, and embankments, in, along and across the Minnesota River and Valley as shown on map plat attached hereto marked A’ ‘Exhibit part made hereof other together dams, with such dikes, spillways, embankments necessary and all other works to perpetually maintain the *9 at an established thereby created elevation in the reservoir water level by 968 feet sea datum to exceed as shown and indicated not contours and the elevations on said plat A’ ‘Exhibit which eleva- tion has been established as more forth.” particularly hereinafter set from apparent
It is the allegations of which petition, the verified and from undenied, stand the findings the court based thereon that the completed project conformed with the authorized one L. 1985, 51, c. contemplated see original We proceedings. no merit in the state’s contention that power of the executive council so limited as to preclude it from the lands taking necessary to permit construction project contemplated n = by this act.
Nor do we find merit the contention the state that power “whatever the executive council had was terminated before petitions heard intervention were or orders made thereon.” When lands petitioners’ ample were taken in 1937 there were funds them for their defense compensate damage. However, it is no from longer that there are no funds available the appropriation made for the original project. provision Under constitutional destroyed shall not be “private property taken, damaged' without public use, just compensation for therefor first paid “security” if the secured,” the is sufficient amount when determined upon public either of the or of charge treasury, is made a thereof. State ex rel. McFarland v. Erskine, some subdivision 447; Minn. 206 N. Johnson v. Town of Clontarf, W. N. 27 Minn. 521; Messenger, 119, Minn. 108 W. State 6 N. W. up If the state were to set as a lack of permitted defense entirely it would be able to avoid the con appropriated, funds In upon power stitutional limitation set eminent domain. from it could instance, having private individuals, each taken lands had provided on the funds compensate ground refuse to were insufficient. It is to be noted also provided or that the funds conservation is c. the commissioner of § 2 he Big project, Stone Lake complete authorized § therefor. The acquire necessary additional lands empowered liability avoid already taken, state cannot lands on ground that the funds provided project are exhausted or that there no funds, are available and we have no assume that legislature ignore will- the constitutional mandate of art. 1, § prohibiting private property just without compensa- tion therefor. See Commercial Station Post Office v. United States (8 48 F. Cir.) (2d) 183.
Jurisdiction next appearing, concerns whether or not on the record presented here the trial court properly allowed petitioners intervene.
Minn. (Mason St. 544.13 St. 1927, 9263), provides: § “Any person having such an interest in the matter in litigation between others that he may gain either or lose by the legal direct *10 judgment effect of the therein may complaint serve a in pending the action, any at time before the trial begins, alleging the facts which interest, show such and demanding appropriate relief against either or both of parties.” the original is true that the controversy between the and the state
owners of the land condemned involved the amount of compensa-
tion
individually
due them
for
taking.
the
But the clause “that he
may either
gain
by
lose
the direct legal effect of the judgment
therein” has been construed to mean that the person gains or loses
by becoming
party
a
to the action, not that
there is a gain or loss
himto
if he does not become a party.
v.
Faricy
St. Paul Inv. &
110 Minn.
Society,
311,
Even if
had not
petitioners
shown themselves entitled to come
within
of
provisions
the
the intervention statute,
the court in the
exercise of its
power
permit
inherent
could
them to come into the
v.
proceedings.
Moravitz,
Veranth
in as a proceedings, the justice. of tration in condemna- question of intervention controlling case on State, Benson, Stanley, in v. by this state is proceedings
tion a That involved situation supra. 247 N. W. case Minn. right way of had condemnation for the state instituted where water in the of construction was highway, process a trunk been included the condemna- land which had not onto diverted land, owner of petition, although or described tion reason his Keeley, was a to party Matthew Keeley other dis- property. petitioned affected ownership include omitted 40-acre and the was tract, court to trict own granted. strength the court motion and on Later, Benson, 185 Minn. 239 N. W. va- Erickson, State, An taken the order. was was appeal court, cated this where it had Keeley forty that to have the included right held decision of condemnation, and the the district court over- bearing his Mr. upon intervene, ruled. As Justice Dibell, (188 for this said 247 N. speaking court, Minn. W. : 510) “* * * Since state has chosen invoke the in the establishment of a trunk comprehensive the court highway without, damage and has chosen use defendant’s 40 con- we hold the landowner demning it, may intervene motion proceeding may say the condemnation the court it must bring defendant, the land taken concededly into damaged, proceeding the assessment of compensa- *11 necessary And this tion. seems almost a result of the constitutional mentioned. provisions cannot, regard The state with decent for the of law the process provision, provision giving everybody due remedy wrong special provision his and the property, done public compensation, the against property use without public project leave out which it in a damages uses prevent all having compensation, the owner from because it cannot be sued.” that the decision case Stanley concedes is out
The state it contends the law should attempts be and harmony with what appeals case from the here under that consideration. distinguish there is no substantial distinction cases, except As we view highway proceeding present involved a and the Stanley case drainage projects. However, the general involve statutes appeals 1941, Minn. St. c. 117 condemnation, (Mason St. relative to in the procedure Stanley case, and it is the 41), were the basis c. L. authorized c. the in- specifically procedure in each “taking” instance, There was a and the ap- stant cases. are the same. plicable principles Lynah, 188 U. 445, 470,
The result in United States v. S. 23 S. Ct. same 539, supra, is the as that in the 349, 357, Stanley ed. seek case. In the petitioners and as that which instant case Lynah holding with reference title to the land case, said: court government, passed “* * * course, Of it results from this that proceeding must regarded an actual appropriation land, the' including when possession, possession fee; the amount title, awarded as compensation paid fee, whatever rights may attach thereto —in this case those at which least belong riparian government to a to the proprietor pass and it becomes — henceforth the full owner.” arisen
When there has
an apparent conflict between the rules that
not
may
an individual
sue the state without
its permission, and
may
take or damage property without making
just compensation therefor, other courts have arrived at the same
conclusion as that reached in the Stanley case. The
court
Riggs
v. State Road Commr. 120 W.
Va.
It is
means
legal
other than
private property
to take
state
The cases cited
nonsuability.
a
of
plea
itself
defend
then
inter-
Stanley case,
permits
which
than the
further
even
go
above
damaged
they
in that
permit
proceeding,
in a pending
vention
of
mandamus.
proceedings
the institution
compel
landowner
by laches be
are barred
respondents
contends
The
commencement
elapsed
have
since
years
seven
more than
cause
years
than four
since
and more
the condemnation
in a gen
“Laches
in intervention.
first
serving
action or' otherwise
an
bringing
negligence
such
sense is
eral
obtaining equitable
him from
will
preclude
as
asserting one’s
The status the same as years ago. changed position was seven has so relying respondents on the nonaction inequitable make it grant the court relief sought. court here cannot say, facts, under the district court abused its discretion in hold- *13 ing delay necessary the reasonable allowing' the respondents years seven after to intervene the condemnation were instituted. appealed
The orders from in No. Case 33499 are affirmed.
Case No. 33523 stated, As heretofore appealed to this (Case court No. from 33499) the order of October 1942, enlarging pro ceedings by bringing Medbery in the Minnesota lands, and from order of October 30, refusing to vacate that order. This appeal taken was November 1942. On January 23, 1943, the state moved to the court vacate its previous orders and for per an order serve mitting to and file a proposed answer, copy of which was attached to the papers. motion The motion was supported by the attorney general affidavits of an for engineer depart ment of Medberys conservation. The appeared specially and ob jected to the of the court to entertain the motion, reason, among others, that case had been to appealed this trial court opinion court. The was of that and denied state’s motion. In this the correct. court was * * * appeal
“After an is the lower perfected court, cannot any make order render properly decision affecting the order appealed from, amend judgment except the same to the end it may correctly express original that intention of the court.” & Dunnell, Dig. v. Supp. 288; Grocery Bock Sauk Center Co. N. 257, L.R.A.(N.S.) 1054, 100 Minn. W. 10 Ann. 71, 110 802; Cas. 557; 75 Minn. N. Floberg Joslin, v. 77 W. United States Inv. N. 84 Minn. W. 87 A. Corp. Ulrickson, S. R. 326. that court appears appeal perfected It to be conceded this motion for to answer was made. before the leave from in Case No. appealed 33523 is affirmed without The order apply permission the state to to serve and file prejudice after the case is remanded to the court below. answer proposed
Case No. 33522 from an order appeal overruling This is a demurrer Stone It Big Canning Company. intervention petition jurisdictional questions raises the same raised Case No. Medbery lands, Minnesota and what been involving has said here. applicable that case is also raises the demurrer intervention to whether states a cause of action. petitioner in substance that alleges the owner of certain de containing about 335 acres; scribed said lands are lands two miles south of the of Big Lake; located about shores Stone complained to the acts the Whetstone River prior emptied into River at a point the Minnesota several miles south of petitioner’s it emptied large volumes of farm; water into the Minnesota damage petitioner’s River but caused little land because of cer tain dikes and embankments constructed by petitioner along *14 of Whetstone River. banks the alleges
It also the institution the of the condemnation involved; here that proceedings connection therewith certain dams, dikes, and reservoirs were constructed at lake; the that the changed channel of the Whetstone River was and the waters of the lake, river diverted into the causing levels thereof to be raised; dams along that other dikes and were constructed the Minnesota of petitioner’s lands; River the south that such construction, and petitioner’s caused the waters to flood thereof, lands, rendering all of for any one-third it unfit approximately purpose and causing balance of said great damage lands, amounting to the taking thereof. alleges that
Finally, petition were instituted land under acquiring power for the of eminent purpose might create and perpetually so that the state domain maintain of waters and for flood control storage for the and to a reservoir aid the conservation and development the natural resources of the state and in the promotion conservation of public health; that the condemnation proceedings are has pending; petitioner not been made a party thereto; the state has not com- it for pensated said lands. Petitioner prayed damages leave to intervene so that its might be ascertained and paid. in intervention states a cause of and the action, demurrer thereto properly overruled. from in appealed
The order Case No. 33522 is affirmed. No.
Case regardless The state contends that of the Med berys to have their Minnesota land brought into the condemnation without proceedings the court is bring the South Dakota land. As heretofore stated, legislature, order to pro other needy vide work and relief the state’s citizens, enacted statutory 51. To purpose, c. effectuate the it created its own agency acquire by gift, purchase, condemnation needed lands for the construction and maintenance of the im designated provement and appropriated $5,000,000 with which to accomplish that purpose.
In virtue of the authority of act, the agency proceeded acquisition of the needed land. In so doing, appropriated these interveners and subjected the same to identical uses and purposes as all other property acquired in'its suit to condemn. The taking, is, the appropriation, is not dis- puted. The property appropriated so has become, through ap- propriation subsequent use, an integral part the project.
Under the constitutional prohibition against taking property compensation without paid first or secured, necessarily there was imposed duty the immediate pay for it. With the acquisition, whether means of condemnation or purchase, duty to com- *15 pensate at once arose; regard no distinction can be drawn between property Minnesota and an adjoining part same farm unit located in the neighboring state of South Dakota. acquisition agency prop- for the of act provides
Since here intended and purpose the identical in South Dakota erty condemnation, may by gift, purchase, acquisition such right per- of is a compensation follow that logically to seems into may come landowner and that he to the belonging one sonal relief acquiring for the of the same purpose of this state courts this side taking afforded for the of on property as is for the as to The mere fact that condemnation boundary line. of our could as vest in the courts not, such, property Dakota South is question The problem confronting not the us. is jurisdiction they are nonresi- owners are without redress because whether the land taken is outside the state Minnesota. and because dents a under valid contract and purchased had been property If the its there can be little doubt enforcement, arisen as to had dispute jurisdiction to hear and determine could exercise our courts is 8780) & : “It (5 Dunnell, Dig. Supp. We have held facts. § gives but the contract contract, itself, the breach true, This specific performance.” being to an action obviously, jurisdiction parties our courts would have then, here. Such subject and of matter are considered in rem. A “in personam specific performance to be rather than incidentally.” and “irnrem particulars” personal only its essential Id. Dig. c. is authorized to agency acquire property
Under upon Dakota the same basis as here. South Does the state or fear that its agency rights likely just are less to receive treat- of this state than in South ment the courts Dakota? Surely, justly object on state cannot here that ground. suing the state without its permission does not land in petitioners’ in connection South Dakota. The arise acquires title land outside its territorial limits in pro- capacity; this it cannot claim prietary sovereign from immunity Georgia City suit. State v. of Chatta- power 44 Ct. 68 L. nooga, 472, 480, 481, 796; Dodge 264 U. S. S. ed.
165 F. 160; Burbank v. (5 Cir.) Fay, 65 N. Briggs 57;Y. J.,C. 277; 29 C. J. Eminent States, p. 166, S., Domain, p. 877, § § to required seems us that state should be to pay for land taken public purposes, it has of regardless whether it lies within Minu. or without territorial if effect limits, its is to be given to Const, art. and to 1, 13, U. S. Const. Amend. XIV, § the applicable of which part reads:
“* * *
shall
Ho state
make or enforce any law which shall
abridge the
of
privileges,
immunities
citizens of the United
States;
any
nor shall
state deprive
person
life,
of
liberty,
process
law;
without due
nor
property,
deny
of
any person
within
equal protection
its
of the laws.”
Q.
Supreme
The United
Court,
States
C. B. &
Co.
R.
v. City of
Chicago,
166 U. S.
17 S.
Ct.
41 L.
ed.
984, in
discussing
due process, said:
*
*
applied
Due
law
process
judicial
as
proceedings
“*
instituted for
private property
for public
means,
use
such
therefore,
process
recognizes
of the owner to be
if
compensated
his
be wrested from him and transferred
The
public.
to the
mere form of the proceeding
against
instituted
if he
owner,
even
be
to defend,
admitted
cannot convert
due
process
process
law,
used into
if the necessary result be to
deprive him
his property
compensation.”
without
1 Dunnell,
Dig.
Ry.N.
Co. v.
1637;
City
G.
of Minneapolis,
If this were proceeding condemn the Dakota land South owners, entirely an protest over different situation would presented. Here, however, project be for which the land was completed. taken has been The owners were not made parties to compensated have not proceedings been for the taking. They court, come submit themselves to jurisdiction, into and ask they parties, they compensated be made the end the state and federal constitutional taking. provisions Unless ignored, they permitted hereinbefore to are to be should be referred petition, to entertain the having jurisdiction court The to intervene. remedy. a proper prohibition No. 33446. in Case discharged
Writ (dissenting). Justice Magnet, No. 33446
Case The condemna- in the state of Dakota. involved South The land lies Minnesota. pending Big county, are Stone tion Minne- attempting compel land are the state owners of this *17 by having proceed- it included in the Minnesota sota to condemn lands their South Dakota asking damages and are to ings Big in appointed commissioners or to be appointed be assessed county county. from residents of that Stone Minnesota on courts in objecting ground The state is that the condemn outside the state. jurisdiction no to lands have may acquire domain, of its of eminent a state By power virtue The own boundaries owned another state. lands within its sovereign in a power cannot such situation claim state owner in most proprietor The state as a mere is immunity from suit. proprietors. like other This is not such to be treated respects sovereign power involves the exercise of the here case. territorial lying a state over lands outside its domain of eminent In power. it has no such extraterritorial opinion, my limits. In 645, 19, it is stated: Domain, p. Eminent Jur., Am. § possesses sovereign jurisdiction each state its own “Within * * * sovereignty, of rights Like other domain. of eminent power can of the state. No state limited to the is power in state, situated another taking property or authorize take from the territory in its free property all the holds state and each compelled state and cannot be to sur- of another domain eminent any way.” in to another state property render states: (8 ed.) p. 248, Lim. Const. Cooley, legislative authority every “The State spend must its force ** the territorial limits of within the State 1 Lewis, In Eminent Domain (3 ed.) p. 701, 385, it stated: § “It is a general rule that statutes have no extra-territorial effect. It follows that one State cannot authorize the condemnation of State; another property also, that it cannot authorize works * * *” which will produce damages actionable another state, (2 In Eminent Domain Nichols, ed.) p. 92, 28, we find the comment:
“There is one limitation upon power of eminent domain which express depends upon no provision. constitutional The powers of sovereign state, however vast in their character and searching extent, their are inherently subjects limited jurisdic- within the state, any tion attempt governmental exercise powers necessarily another state is void. A state therefore cannot take or authorize the property rights in property situated state, and, another conversely, each state all holds the property within its free from limits the eminent domain other state and cannot compelled to surrender such another in any way. state
“No openly case a state attempting condemn land within the will against another of the latter has arisen or is likely arise, courts though the have had to statutes, construe authoriz- *18 in general ing terms condemnation of interstate bridges, as no to take that giving power part bridge lying beyond the boundary of the in which state the statute was enacted.”
In Grover I. & L. Co. Ditch, v. Lovella R. & I. 21Co. Wyo. 204, 131 P. R. 247, 43, 1916C, 1275, A. Ann. 1915D, Cas. the court held that where under the eminent domain state power property rights cannot take or authorize the prop- said, from erty state, quoting situated another McCarter v. Eq. J. 65 County 695, 717, Hudson Water Co. 70 N. A. 14 (N.S.) 754, 774, L.R.A. 118 A. R. 10 Ann. Cas. 116, 125, S. “one expropriate public purposes state cannot for its property 168 In W. P. Co. Holyoke state.” of another territory
within makes this state the court 570, 575, Co. 52 Conn. River Connecticut ment: * *
“* right by virtue question whether, The has arisen use, subject public one state can domain, take, of eminent naturally and the decisions have been state, against land in another a power.” such Hagan, Court of Pollard v. States, the United Supreme 11 L. ed. on this 212, 230, 565, passed
3 U. S. (How.) stated:
“* * * and the domain over the shores This of eminent belongs for ali navigable waters, municipal purposes, soils under jurisdic- within their territorial exclusively the states respective power have the constitutional they, they only, tions, exercise it.” Fed. (1 Cir.) 76, & M. Ames, United States v. Woodb. also
See City Flint 7 F. Twin (8 Cir.) 435; Walker v. 14,441; No. Cas. 750; E. E. Elec. Co. 163 S. C. S. Power Co. v. Savannah F. Co. Gay Bridge (D. C.) v. Louisa & Fort County Court Supp. Mass. 52 Am. E. City Worcester,
In Mannville Co. v. course, “Of the laws of Ehode court comments: 261, 262, the land to a servitude.” subject Massachusetts Island cannot can its sov- holding that a state extend authorities I find no case limits. If this were a territorial beyond its own ereignty land in the state of South to condemn attempted where un- this court would objected, owner property Dakota and could not be extended sovereignty hold that doubtedly state’s follow that the state cannot It should boundary. beyond its which it does not sovereignty power to exercise compelled consent owners in this case true that It is possess. are Minnesota, fact, the state of of the power exercise to the authorization nor consent, their it. Neither compel attempting sovereignty can extend state, of this legislature *19 nothing There is lands in South Dakota. of Minnesota over state have Dakota to state of South showing consent the record sovereignty invaded. only residents state, In this condemnation the court may appointed in which county the land is situated Min- for a authority I damages. to fix see no as commissioners county to appraise Minnesota of a nesota court residents appoint Dakota. damages to land in the state South lying I cited, the authorities For and on the reasons above set forth respectfully dissent.
Upon Application argument. for Re filed: January 3, following opinion On Per Curiam. on the follow- rehearing
The has moved these cases so should be original opinion our questions: (1) Whether ing litigation involved in this as to determine that the lands clarified pro- been taken the state in these condemnation actually have “to an- (2) given whether state is to be ceedings ; ac- entitled in all of the above petitions intervention swer taking may be question of the actual only tions” so that not litigate may taking shown, that the state litigated also, but if the taken. property for the so question petitioners’ damages there adequate proof determined upon below has court taken was and that so property been an actual has is the value e., i. what Only question remains, one public use. heard That should be taken? of each so parcel opinion, original court. Our the usual and determined will stand. mentioned, the modification
Petition denied. took injuries, accidental
Mr. absent because Loring, Justice these cases. decision of in the consideration or part no part below, no took of counsel having been Peterson, Mr. Justice cases. or decision of these in the consideration