State, by Youngquist v. Hall

Julius J. Olson, Justice. On August 22, 1928, the state by its attorney general filed a petition in the district court of Winona county for condemnation of certain lands for right of way of state highway No. 3 in that county. As a part of the highway construction a concrete bridge was built across an old county ditch some 1,275 feet downstream from the land owned by one H. L. Kopp (who ivill hereafter be referred to as intervener). The bridge was completed on November 12, 1928. The highway condemnation proceedings were duly closed on August 25, 1931, at which time the final certificate provided by 2 Mason Minn. St. 1927, § 6557-1 (d), was made and filed. On September 9, 1933, intervener caused a notice of motion to issue, supported by affidavits, wherein he sought to intervene in the condemnation proceedings and to have his land included therein, it being his claim “that the establishment of said highway has resulted in the taking of a large portion of said real estate and serious damage to the remainder thereof; that confiscation will result unless redress can be obtained” ; that intervener has no adequate remedy other than by inclusion of his real estate in the proceedings, to the end that damages to his land might be assessed; “that no part of said real estate has yet been included in said proceedings and no notice in said proceeding was served upon” him. Upon the hearing of the order to show cause the state appeared specially and objected to the jurisdiction of the court, claiming that the condemnation proceedings having been concluded more than two years prior to the time of inter-vener’s application the matter was closed and that the court had no jurisdiction to include his property. The court overruled the objections and granted intervener’s motion on November 1, 1933. *81 In that order the court defined the easement of the state in this form: “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 inter-vener $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 inter-vener’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 inter-vener 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 tlie state’s act a mere trespass ? 1. Thé 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 action pending between others(See Faricy v. St. Paul I. & S. Society, 110 Minn. 311, 125 N. W. 676.) So the question at once arises whether the facts in the instant case permit the view that there was an action pending at the time inter-vener sought and obtained below the right of intervention. The condemnation proceedings in the instant case were taken pursuant to the provisions of 2 Mason Minn. St. 1927, § 6557-1, and subsequent sections. Subdivision (d) provides that G-. S. 1923, § 6545, “shall be dispensed with,” likewise “the final decree provided for in § 6553, provided the attorney for the petitioner make a certificate describing the land taken and the purpose or purposes for which taken, and reciting the fact of payment of all awards or judgments in relation thereto, which certificate upon approval thereof by the court shall establish the rights of the petitioner in the lands taken and shall be filed with the clerk and a certified copy thereof filed for record with the register of deeds. Such record shall be notice to all parties of the title of the state or of its agency or political subdivision to the lands therein described.” Obviously, the statute has finality for its object and purpose. That was the purpose of §■ 6553. Dispensing with the final decree therein mentioned does not change the statutory purpose and effect of the final certificate which is intended to and does take its place. 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, 1982, 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, 188 Minn. 390, 247 N. W. 509, 510, does not aid him. There the owner was a party to the proceeding. The 10-acre tract was a part of his land. In the proceedings certain parcels belonging to him were included, but the particular 10 as to which damages were sought by the owner was omitted. This court by reason of this situation permitted intervention. The court said (188 Minn. 392) : “In constructing the highway and as part of the engineering plan, the commissioner diverted waters from their natural courses and Avatersheds and cast them upon this 10 “to its damage. The use will be permanent. The defendant’s claim is that he should have compensation for the damages done to this 10, and, since he cannot sue the state, that the 10 should be brought into the condemnation proceeding for the assessment of damages by the commissioners. That the J/.0 toas taken or used and is 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 Avere to sustain the result beloAv it Avould 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 Ave lack the poAver 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 Avhat has been said. But it may not be amiss to suggest that the two acts of trespass, and Ave 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. 70 Minn. 153, 72 N. W. 971 (third syllabus paragraph) seems appropriate : “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 (70 Minn. 159) : “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.