State Ex Rel. County of Ramsey v. Babcock

Olsen, J. Ramsey county, the relator herein, appeals from an order overruling a demurrer to respondents’ answer, the court having certified that the question involved is important and doubtful. The action is by mandamus to compel the commissioner of highways to certify the amount which Ramsey county is entitled to be reimbursed for the construction of what has since been designated as trunk highways 62 and 63, including the cost of right of way therefor, and to have the commissioner, state auditor, state treasurer, and secretary of state issue and sell bonds sufficient to pay the amount so certified. The respondents concede that Ramsey county is entitled to be reimbursed for the cost of construction of these highways, but deny that the county is entitled to be reimbursed for the cost of acquiring the right of way for the roads. Highway No. 62 for a part of the way is a new road and does not follow the route of any then existing highway; and in acquiring right of way for this new road Ramsey county expended some $43,757.39, which is the item here in dispute. Highway No. 62 was established and constructed by Ramsey county in 1926 and 1927. It is a paved road. Before locating and constructing the road the county officials consulted with the state highway commissioner, and the route for the road was agreed upon. The work was done according to the plans and specifications of the state highway department, and the commissioner agreed that when *134 the road so constructed should be completed he would designate same as trunk highway No. 62. After its completion he did so dfesignate it. Art. 16 of the state constitution, establishing the trunk highway system, was adopted November 2, 1920. Section 1 provides for the establishment of some 70 trunk highways, designated by number, and fixes the points of commencement and termination of each and the general route or direction. It leaves the definite route of the highways to be later fixed by such board or officer as may be appointed by law. It provides that these highways shall be “located, constructed, reconstructed, improved and forever maintained * * * by the state of Minnesota.” Section 2 of art. 16 provides for reimbursements as follows: “The trunk highway fund shall be used solely for the purposes specified in section 1 of this article, and when duly authorized by legislative enactment to reimburse any county for the money expended by it subsequent to February 1st, 1919, in permanently improving any road hereinbefore specifically described, in accordance with plans and specifications therefor approved by the commissioner of highways.” It is of some importance to compare the language used in § 1, as to the purposes for which the trunk highway funds may be used, and the purpose for which reimbursements may be made under § 2. Under § 1 there are five specified purposes for which trunk highway funds may be used, namely, for locating, constructing, reconstructing, improving, and maintaining trunk highways. The word “improved” in the connection in which it is used in § 1, coming after the words “located, constructed, reconstructed,” quite clearly has reference to a betterment of an established highway. It would be a violent construction to hold that the word “improved” there used meant to acquire the right of way for the highway. Coming then to § 2, it is significant that reimbursement to counties can be made only for money expended in permanently improving any road. The word “permanently” was evidently used to prevent reimbursement for ordinary repairs, which are not permanent im *135 provements. The provisions of § 2 are clearly intended as a limitation upon the right of counties to receive reimbursement. The right is limited strictly to reimbursements for permanently improving roads. We construe the words “improving any road” to mean the same as the word “improved” in the first section, that is, a betterment of an existing highway, and not to include expenditures-made for the purpose of acquiring right of way for the road. The words “improve” and “improvement” are frequently used in connection with land. They are used as denoting some betterment, such as by cultivation, clearing, drainage, irrigation, erecting buildings, or otherwise enhancing the value or usefulness of the land. As far as we know, it has never been claimed that the purchasing of the title to the land or the acquiring of an easement or other right therein is an improvement of the land. The word “improve” has several meanings: To make better; to increase the value or good qualities of; to ameliorate by care or cultivation are some of the common definitions. But in every instance, before you can improve a thing or subject, there must be in existence a thing or subject to improve. There was no road in existence before the right of way was acquired, and the purchase of the right of way was the purchase of the title to or easement in the land to be thereafter improved by the construction of the road. The word “improve” is a common word in everyday use. Its meaning is well understood. As commonly used, the word means to make better or to enhance the quality or value of some existing thing or subject. In speaking of improving a highway, we have reference to bettering a highway already in existence. The acquiring of the right of way for a road is obtaining title to or an ease^ ment in the land on which the highway is to be built, and is not an improvement of the road. We have also the construction placed upon the reimbursement provisions of the constitution and the statutes by the attorney general in 1921, less than a year after the constitutional amendment was adopted, and followed by the highway department in making-reimbursements ever since, to the effect that reimbursements to *136 counties for permanently improving- roads do not include reimbursement for money expended in acquiring- right of way for new roads. There is force in the argument that, as the commissioner of highways was consulted and the road Avas constructed in accordance Avith plans approved by the highway department and on a route which the commissioner approved and which he agreed thereafter to designate and take over as a trunk highway, the state in equity should reimburse the county for all its expenditures. But the constitutional provision for reimbursement is so limited that reimbursement for cost of right of way cannot be made out of the trunk highAvay fund. Whether the state could reimburse the county for cost of right of Avay out of other road funds is not before us. It is suggested that the record does not show at Avhat time the road Avas designated and taken over by the commissioner of highAvays as a trunk higlrway. The record does not expressly sIioav, but the fact that Ramsey county acquired the right of way and built the road avc think sufficiently shows that it was built as a county road and not designated and taken over by the state as a trunk highway until after it Avas completed. Ramsey county Avould have had no occasion or right to construct a highway already taken over by the state. We do not find it necessary to consider the several reimbursement acts passed by the legislature. Such acts Avere passed in 1923, 1925, 1927, 1929, and 1931. These acts are no broader on this point than the constitutional provision, and of course could not provide for reimbursement of the counties out of the trunk highway fund to any greater extent than that provided in the constitution. Order affirmed. Hilton, J. took no part.