Burnquist v. Cook , 220 Minn. 48 ( 1945 )

1. I dissent upon the sole ground that the commissioner of highways is not authorized by law to acquire by condemnation an abutting owner's right of access to an established highway. If the commissioner had such power, I should concur in the views of the majority upon the ground that there has been a serious and flagrant miscarriage of justice here.

2. The commissioner of highways exercises delegated power. State, by Hilton, v. Voll, 155 Minn. 72, 192 N.W. 188. His powers are measured by the statute which confers them. By Minn. Const. art. 16, the power to locate, construct, reconstruct, improve, and maintain trunk highways is vested in the "State of Minnesota," not in the commissioner of highways. The power of eminent domain is an inherent attribute of the sovereignty of the state. This power lies dormant until called into exercise by legislative action. The power of eminent domain can be exercised only as authorized by the legislature. Minnesota C. P. Co. v. Fall Lake Boom Co. 127 Minn. 23, 148 N.W. 561; State ex rel. Simpson v. Rapp, 39 Minn. 65, 38 N.W. 926. So it is with respect to the state's powers concerning trunk highways. Neither the executive department nor any officer thereof can exercise the power of eminent domain nor any power concerning trunk highways except by legislative authorization, and then only in strict accordance with the terms of the statute by which the power is conferred. State ex rel. State Highway Comm. v. Gordon, 327 Mo. 160,36 S.W.2d 105; State ex rel. Gebelin v. Dept. of Highways, 200 La. 409,8 So. 2d 71. As said of the power of the executive department of the federal government in United States v. 458.95 Acres of Land (D.C.) 22 F. Supp. 1017, 1019:

"* * * The power of eminent domain is a sovereign power. It does not follow because the United States may exercise it that an executive officer may do so."

3. At the outset we are confronted with the proposition that there is no statute which in express terms delegates to the commissioner of highways the power here asserted. In order to spell out the alleged power, the majority resorts to argument and inference. The long argument in the majority opinion in support of inferences as to the existence of the power of the commissioner is strong evidence of the fact that it is nonexistent. "When the right to exercise the power can only be made out by argument and inference, it does not exist." 1 Lewis, Eminent Domain (3 ed.) § 371, note 25.

4. The power asserted here by the commissioner is claimed under the provisions of Minn. St. 1941, § 161.03, subd. 1 (Mason St. 1927, § 2554, subd. 1)² authorizing him to acquire bycondemnation as provided by statute all necessary right of way. The statute provides what the commissioner may do by delegating to him power to acquire right of way and how he shall do it by delegating to him the power to make the acquisition by condemnation as provided by statute. The question then is: Does a grant in such terms include the power here asserted?

The authority of the commissioner is couched in terms previously judicially defined, which not only do not include the power of taking an abutting owner's right of access, but which plainly exclude it. That being true, the language of the statute amounts to a legislative declaration that the commissioner should not have such power.

In ascertaining the meaning of the language of a statute, resort should be had to statutory rules of construction in aid of the process. Among these are the following: (1) Words and phrases should be construed according to their common and approved usage, § 645.08(1), (Mason St. 1944 Supp. § 10933-9[1]); (2) in ascertaining the meaning of words and phrases, the court should consider the former law, if any, including other laws upon the same or similar subjects, the contemporaneous legislative history, and legislative interpretations of the statute, § 645.16 (5, 7, 8), (Mason St. 1944 Supp. § 10933-17[5,7,8]); and (3) when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject intends the same meaning to be placed upon such language, § 645.17(4), (Mason St. 1944 Supp. § 10933-18[4]).

In determining the common and approved usage of the words and phrases in question, we should consider their meaning in connection with the subject matter of roads and highways. "There is no rational way of determining the meaning of words and phrases except by inquiring in what sense they are usually employed in the connection in which they are found." 6 Dunnell, Dig. § 8968, citing Morin v. Martz, 13 Minn. 180(191); Brisbin v. Cleary, 26 Minn. 107, 1 N.W. 825. The phrase right of way in connection with the subject matter of roads and highways means a strip of ground of a specified width upon which a highway or a roadbed is constructed. N.W. Tel. Exch. Co. v. City of Minneapolis, 81 Minn. 140, 154, 86 N.W. 69, 71,53 L.R.A. 175; New Mexico v. United States Trust Co. 172 U.S. 171,19 S. Ct. 128, 43 L. ed. 407. As said in Town of Randall v. Rovelstad, 105 Wis. 410, 428,81 N.W. 819, 825:

"* * * A highway, in its ordinary conception, is a strip of land bounded by approximately parallel boundaries for the purpose of direct travel. It does not include the idea of bays or excrescences on either side of it, not within the direct course of travel, and not adapted thereto, * * *."

The rule is well settled that power to acquire right of way does not include that of acquiring easements and other interests outside the limits of the way. Preston v. City of Newton, 213 Mass. 483, 100 N.E. 641; Doon v. Inhabitants of Natick, 171 Mass. 228, 50 N.E. 616; 1 Nichols, Eminent Domain (2 ed.) § 62; Abbot, "Ways and Waters in Massachusetts," 28 Harv. L.Rev. 478, at pp. 479 and 494. The power to acquire an easement outside the right of way as incident to that of acquiring a right of way was denied in the Preston case, where the court said, quoting from the decision in Doon v. Inhabitants of Natick (213 Mass. 486, 100 N.E. 642):

"* * * 'The statutes which authorize the laying out of highways and town ways do not recognize the necessity or desirability of taking different kinds of easements for the construction of ordinary ways, but they provide for the location of ways over lands of private owners. A location under these statutes subjects the land to an easement for any kind of use which may be reasonably necessary for the construction and maintenance of the way. The easement created by such a location is the only easement which county commissioners, road commissioners, or other tribunals laying out highways and town ways under general statutes, can create. They may take land fora way. They cannot take land for any purpose less than for away, whatever may be the particular kind of use to which theyintend to put it.' " (Italics supplied.)

It may be that the legislature meant by "a court of last resort" this court and not the court of last resort of another state; but, that aside, the opinion of the Massachusetts court and the authorities plainly show what is meant by power to acquire a right of way.

When considered in the light of former law upon the subject of highways, other laws upon the same subject matter, and the legislative interpretation of this particular statute, it plainly appears that the phrase right of way as used in the statute means a mere strip of land of specified width; that any land or interest therein lying outside the limits of a right of way as thus defined — outside the limits of the strip of land so to speak — is not and could not be part of the right of way itself; and that express and specific statutory authorization is necessary to confer the power to acquire easements and other interests in land outside the right of way as thus defined.

The statutory provisions in question plainly show that they adopted the view of the prior law concerning the nature of a right of way for a highway. The section (§ 161.03, subd. 1 [§ 2554, subd. 1]) defining the powers and duties of the commissioner of highways is part of L. 1921, c. 323, which is commonly known as the "General Highway Act" and is so labeled in Mason St. 1927, c. 13. The 1921 statute covers the entire subject of trunk highways and county and town roads. The same language is used therein interchangeably as applicable to the kinds of roads mentioned. It treats a road right of way as comprising a mere strip of land of specified width extending between certain termini. In the case of county and town roads, it provides that such roads other than cartways shall be at least four rods wide (§ 3). Thus, under the 1921 as under the prior law, a road right of way was treated as a strip of land of specified width. Under the prior law, the proceedings were to acquire a right of way of the kind mentioned for a road. Martinson v. Town of Eagle Creek, 129 Minn. 392, 152 N.W. 761; N.W. Tel. Exch. Co. v. City of Minneapolis, 81 Minn. 140,83 N.W. 527, 86 N.W. 69, 53 L.R.A. 175; State ex rel. Simpson v. Rapp, 39 Minn. 65, 38 N.W. 926. In § 3, the land occupied by a road is referred to as a right of way. Provision is there made for the acquisition of "additional right of way" when necessary for purposes of construction or maintenance. This is the first statutory provision of any kind in this state authorizing the acquisition for road purposes of land lying outside the limits of a road. It is obvious that the statute means that the right of way of a road is the strip of land of specified width used for road purposes and that additional right of way is land lying outside the limits of the right of way as thus defined.

This conception of right of way was carried forward into L. 1923, c. 439, § 1, where a further grant of power was made to county and town boards to acquire additional right of way when necessary for "safety of public travel." It will be noticed that up to this time no grant of power was made to acquire any easement outside of a road right of way for highway purposes. The distinction between a right of way and an easement in lands adjoining it is, as Mr. Justice Hoar pointed out in Simonds v. Walker, 100 Mass. 112, that a right of way brings the entire strip of land under the jurisdiction of the highway authorities for highway purposes and uses, and a mere easement of land outside the limits of the highway does not.

The first authorization of any kind in this state for the acquisition for highway purposes of an easement in lands adjoining a highway is found in L. 1927, c. 227, § 1, where town and county boards are authorized to acquire "easements for the erection of snow fences." In 1929, the power to acquire such easements was conferred upon the commissioner of highways, and it was made mandatory upon him and county and town officials when establishing highways to include "the power [an easement] to erect and maintain temporary snow fences as required upon lands adjoining the highway part of which lands have been taken for road purposes." L. 1929, c. 396, § 1. Of course, there was no necessity for granting to the commissioner of highways the power to acquire right of way for purposes of construction and maintenance and for safety of public travel, because the power to acquire right of way of unrestricted width enabled him to make allowance for such factors. But that was not true of easements lying outside the limits of the right of way. Because the power to acquire right of way did not include that of acquiring easements lying outside the limits thereof, express and specific authorization was necessary to confer such power, and this was done by the cited provision of the 1929 law. Hence, the conclusion is inescapable that the commissioner of highways, the same as county and town officials, has no power to acquire easements in land adjoining a highway right of way except as expressly and specifically authorized by statute.

In short, it conclusively appears that the legislature used the term right of way in the statute as not including easements and interests lying outside the limits thereof; that the power granted in the first instance was to acquire right of way only; and that this power was changed in only one respect, viz., to acquire easements for snow fences. That is the only easement outside the limits of a right of way the commissioner may acquire by condemnation. Thus, the legislature has placed its own interpretation on the language in question to the effect that a grant of power to acquire right of way by condemnation does not authorize the acquisition of easements outside the right of way.

Further confirmation of the fact that the rule is that the power to acquire right of way for roads and streets does not include the power of acquiring easements and property outside their limits is found in the universal practice of providing by charter provision or statute that cities should have the power to obtain such easements. Such provision is commonly made with respect to easements for the purposes of slopes and fills in connection with the improvement of streets and highways. See, Nichols v. City of St. Paul, 44 Minn. 494, 47 N.W. 168.

The case of State, by Peterson, v. Werder, 200 Minn. 148,154, 273 N.W. 714, 717, does not hold that the commissioner of highways has the power to acquire easements in abutting property for "sight corners." No such question was involved in that case. There, the commissioner was seeking to acquireby purchase the fee of abutting property. There was no attempt to acquire merely an easement. The question whether an easement could be acquired by condemnation or otherwise was not raised, litigated, or decided. The real point decided was that no acquisition of land for highway purposes could be made unless the commissioner by prior definitive order required by § 161.03, subd. 4 (§ 2554, subd. 4), included in the highway established the land to be acquired. What was said in addition is dicta. It must be confessed that in any view the Werder case is an unsatisfactory one. In many respects it defies analysis. Mr. Chief Justice Gallagher in his dissenting opinion explored and exposed with devastating effect the decision's errors and fallacies. It is not necessary to repeat here what he so well said. But the exigencies of the situation require answer to the dictumarguendo in the Werder case (200 Minn. 154, 273 N.W. 717): "Ordinarily, the acquisition of an easement would answer that purpose [for a sight corner]," relied on by the majority as authority for the rule that the commissioner may acquire by condemnation easements outside a road right of way. This dictum is of no binding force. It is not entitled to any weight. First, it is positively erroneous, because, as has been pointed out, the commissioner lacks the power to acquire any easement outside the right of way, except for snow fences, for which there is specific statutory authority, and, because any land or interest therein acquired for highway purposes must be included in the right of way and paid for as such. Preston v. City of Newton, 213 Mass. 483, 100 N.E. 641, and Simonds v. Walker,100 Mass. 112, supra. This applies to "sight corners" as well as to other easements. An examination of the opinion discloses that the dictum is the result of failing to consider and of entirely disregarding the applicable rules of law, statutes, and the rules of construction just mentioned. Only by so doing could the view embodied in the dictum be reached. Secondly, it is an attempt to control the commissioner's action as to the extent of a given acquisition in the teeth of the rule there recognized that decision as to how much or what portion of property is necessary to be taken is exclusively for the commissioner and not for the court. As indicative of the extent to which the Werder decision is permeated with error, attention should be called further to another dictum that trunk highway funds may not be expended constitutionally to beautify highways. At the time the Werder case was decided, the rule was settled the other way. Perlmutter v. Greene, 259 N.Y. 327, 182 N.E. 5,81 A.L.R. 1543. See, Mr. Justice Holt's opinion on reargument in State ex rel. Twin City B. I. Co. v. Houghton, 144 Minn. 1,174 N.W. 885, 176 N.W. 159, 8 A.L.R. 585; 11 Am. Jur., Constitutional Law, § 280. So far as here pertinent, the Werder case supports the view that, if an acquisition of land is to be made, it must be made as part of the highway. If so, it must be acquired asright of way and included therein by a definitive order complying with the requirements of the statute.

Turning from our own to other jurisdictions, we find that the overwhelming consensus of opinion is that the power to acquire right of way does not include that of acquiring the abutting owner's right of access. This is manifested by the fact that in no instance has a taking of the kind here involved been attempted, much less sustained. In at least 17 other states,³ legislation has been adopted in recent years authorizing the establishment of so-called "freeways," "limited-access highways," and other highways of the same kind, to which the abutting owner's right of access is acquired by the exercise of the power of eminent domain under express and specific statutory authorization. These statutes differ in kind and scope. The Michigan statute⁴ provides for the acquisition of any property or interest therein necessary for the purpose of limited-access highways. The other statutes, except that of New York, provide in express terms for the acquisition of the abutting owners' right of access.⁵ The New York highway statute provides for the construction of limited-access highways only "at a place where no public highway theretofore existed." 24 McKinney's Consol. Laws New York, art. III, § 30, and 1944 Cumulative Annual Pocket Part, art. III, § 29, subds. 1, 13, 14, § 30, subds. 1 (a), 13, 14; art. XII-A, § 346. The statute applies only to entirely new highways and not to those already in existence. Under the statute, where a new highway is established as a limited-access one, the original taking carries with it upon payment of just compensation therefor the right of access which otherwise would accrue to the abutting owner from a taking for highway purposes.

As a guide to state officials, the bulletin cited promulgates a so-called model limited-access highway act containing express provision for the acquisition of the abutting owner's right of access.⁶

There is no reasonable basis for the view that highway officials in the states having statutory provisions authorizing the taking of an abutting owner's right of access for so-called limited-access highways may exercise the same power without statutory authorization. The plain reason for such statutes is to grant power which otherwise would be lacking. It is preposterous to think that the legislatures of the 17 states mentioned unnecessarily enacted statutes to confer power on officials if they already possessed such power without the statutory authorization. The majority opinion fails to cite a single case sustaining a taking of the abutting owner's right of access. The cases cited are distinguishable.

There is no Michigan decision holding that the abutting owners' right of access to Davison Avenue Limited and the Willow Run Expressway was acquired by the state, much less that there was authority for such taking. The case of In re Widening of Fulton Street (City of Grand Rapids v. Barth), 248 Mich. 13,17, 226 N.W. 690, 691, 64 A.L.R. 1507, did not involve such a taking, but a widening of a street to provide parking space. The land there taken was made part of the street right of way. As the court said: "The land was taken 'for street purposes.' " In Goodfellow Tire Co. v. Commr. of Parks, etc., 163 Mich. 249,128 N.W. 410, 30 L.R.A.(N.S.) 1074, the court held that the city could not take an abutting owner's right of access under the power to make rules and regulations concerning the use of the boulevard on which the property fronted and that denial of access under the guise of regulation amounted to a taking of such right without compensation. The Michigan statute authorizing the taking of the abutting owners' right of access apparently is designed to cover any case where such an owner claims compensation for such a taking. At least the action, if any, by highway officials involving such takings in particular cases was not deemed by the Michigan legislature to create an authority otherwise lacking.

The Merritt Parkway case, Stock v. Cox, 125 Conn. 405,6 A.2d 346, did not involve a condemnation of an abutting owner's right of access to a highway, but his right to damages caused by the construction of a parkway, which had a roadway down the middle. Parkways are treated as a special type of thoroughfare, to which the ordinary rules concerning the rights of abutting owners are not applicable. Matter of County of Westchester (H.R. Parkway) 246 N.Y. 314, 158 N.E. 881; Board of Supervisors v. Wilkin, 260 A.D. 366, 22 N.Y. So.2d 465 (motion for leave to appeal to the court of appeals denied, 260 A.D. 995,

25 N.Y. S. [2d] 788). In the Wilkin case the court said (260 A.D. 368,22 N Y S. [2d] 466):

"This parkway is a part of the State park system, and while it will have a road for travel running through it, nevertheless it is essentially a park. The rule, laid down in Perlmutter v. Greene (259 N.Y. 327, 182 N.E. 5, 6, 81 A.L.R. 1543), that the 'right to have the highway kept open for * * * access as well as for travel [is] an "easement," ' is not applicable to a parkway of the kind here contemplated."

There is no California case holding that an abutting owner's right of access may be taken without express statutory authorization. The case of People v. Reed, 139 Cal. App. 258,33 P.2d 879, did not involve the acquisition of an abutting owner's right of access. In that case the right of access had been acquired by a default judgment. The court held that it was error for the trial court to include in the judgment rendered what was in legal effect an injunction precluding the owner from ever constructing and putting in place a way of ingress to and egress from the land condemned. In effect, the court held that the abutting owner's right of access survived the default judgment taking it away from him. That case throws no light on the question here involved. In subsequent cases the California courts have held that an abutting owner's right of access cannot be taken from him except by the exercise of the right of eminent domain pursuant to statutory authorization. People v. Ricciardi, 23 Cal. 2d 390, 144 P.2d 799. In 1939, five years after the decision in the Reed case and four years prior to that in the Ricciardi case, the California statute authorizing the acquisition of an abutting owner's right of access was enacted. The plain inference is that the decision in the Reed case was not considered as authority for the rule that the right of access could be taken without express statutory authorization. The 1939 statute was enacted to supply such authorization.

The Pennsylvania toll turnpike is no precedent for the power here asserted. A toll turnpike, as the term implies, is one for the use of which a charge is made. The Pennsylvania statute authorizes such a charge. The effect of such a charge is to exclude the entire public, including abutting owners, from access to the turnpike, except upon payment thereof. See, Cleaveland v. Ware, 98 Mass. 409. That being true, it is obvious that a toll turnpike is entirely different from a trunk highway.

There is no Pennsylvania statute authorizing the acquisition of an abutting owner's right of access to a public highway. Nor is there any decision of the supreme court of that state to that effect. The case of Breinig v. Allegheny County, 332 Pa. 474,2 A.2d 842, does not so hold. On the contrary, it holds that an abutting owner's right of access cannot be taken away by a police regulation entirely preventing him from having access to the highway and that such a regulation is invalid because it is an unauthorized taking of the abutting owner's right of access without just compensation. That is quite a different thing from holding that there could be such a taking without legislative authorization. The case, moreover, definitely is authority against the rule laid down by the majority that the commissioner of highways has the power here claimed as part of his power to regulate the use of trunk highways. See, subdivision 6, infra, of this opinion.

There is no justification for saying that our own trunk highway No. 10 between Anoka and Elk River involved a taking of the abutting owners' right of access. On the contrary, it appeared from the oral argument that the abutting owners have full access to that highway, but that such right, as well as the owners' use of it after they get on it, is regulated. The regulation of the right of access is consistent with the denial of the right to take it without specific statutory authorization. See, subdivision 5, infra. If anything, the Anoka-Elk River road is a good example of what the commissioner can do without resorting to the extreme power here asserted.

Cases involving the taking of an abutting owner's right of access by vacating a road, as in Underwood v. Town Board of Empire, 217 Minn. 385, 14 N.W.2d 459, are not in point, because, unlike the power asserted here, the statute in such cases expressly provides for the vacation and the payment of the damages occasioned thereby, including those for the taking of abutting owners' rights of access. The difference is this: That in the road-vacation cases there is express statutory authority for the taking, while here there is none at all.

5. The statutory provision that the manner of acquisition shall be "by * * * condemnation, as provided by statute," so far from authorizing the commissioner to acquire by condemnation the abutting owner's right of access, intended that the commissioner's exercise of the power to acquire right of way should simultaneously therewith create the abutter's right of access. The words "as provided by statute," refer to Minn. St. 1941, c. 117 (Mason St. 1927, c. 41), as the statute relating to eminent domain in force at the time of the taking. Minn. St. 1941, § 645.45(5), (Mason St. 1944 Supp. § 10933-46[5]). Long prior to the enactment of the statute defining the powers and duties of the commissioner, the eminent domain statute was judicially construed by us as "a court of last resort" in Adams v. C. B. N. R. Co. 39 Minn. 286, 292,39 N.W. 629, 632, 1 L.R.A. 493, 12 A.S.R. 644, where we held that the taking of a right of way for a street simultaneously creates in the abutting owner a right of access thereto in the following language: "The private right is vested by the same proceedings or acts that vest the public right." Under the statutory rule of construction that, when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject intends the same meaning to be placed upon such language (§ 645.17[4], [Mason St. 1944 Supp. § 10933-18(4)]), the legislature must be deemed to have intended that a taking under the statute by the commissioner should be attended with the same consequences as a taking by any other condemner under our prior construction of the statute. Consequently, the legislature must have intended that a taking by condemnation of a right of way by the commissioner should at the same time create a right of access thereto in the abutting owner. A power, the exertion of which was intended to create a right, cannot be used to take it away. That is precisely what is being attempted here. While the commissioner recognizes that the prior establishment of the highway in question created in the abutting owners a right of access thereto, he now claims that he can take that right by an exercise of the very power which was intended to create it and not to take it away.

6. The commissioner's power to make certain regulations concerning the use of trunk highways does not authorize him to take the abutting owner's right of access. Goodfellow Tire Co. v. Commr. of Parks, etc. 163 Mich. 249, 128 N.W. 410,30 L.R.A.(N.S.) 1074; Brownlow v. O'Donoghue Brothers,51 Ohio App. D. C. 114, 276 F. 636, 22 A.L.R. 939; Anzalone v. Metropolitan Dist. Comm. 257 Mass. 32, 153 N.E. 325, 47 A.L.R. 897; State ex rel. Gebelin v. Dept. of Highways, 200 La. 409,8 So. 2d 71. As said in the Anzalone case, holding that the abutter's right of access may be regulated (257 Mass. 37, 153 N.E. 327,47 A.L.R. 897): "The exercise of a legal right may be regulated but it is not to be taken away without legislativesanction." (Italics supplied.) The legislature has made it clear that right of way may be acquired for safety purposes, but not easements in property lying outside the right of way, by granting the commissioner practically unlimited power to acquire right of way and none to acquire easements, except for snow fences, and by in other sections granting to county and town boards specific power to acquire additional right of way for safety purposes, but not easements for such purposes.

7. It seems to me that the fact that the state must compensate the owner of an easement where it is taken can have no application here, because the easement in question has not been and cannot be taken. Authority to take cannot be inferred from a duty to compensate where there is an authorized taking. The cases cited in the majority opinion involve situations where there was no taking of an easement as such, but of the servient land to which the easement was appurtenant. See, Aigler, "Measure of Compensation for Extinguishment of Easement by Condemnation," 1945 Wis. L.Rev. p. 5.

In conclusion, we should remember that the statute conferring the right of eminent domain upon the commissioner of highways was enacted long before limited-access highways were ever thought of. Roads are laid out and constructed primarily for the benefit of adjoining landowners. The great object of the trunk highway system was to make accessible to the people a system of improved roads. As the proponents of the system said, its purpose was to get the farmers out of the mud. To the extent that the commissioner can exercise the power here asserted, he not only can keep them in the mud, but off the highways altogether. The legislature has made no such wholesale delegation of power as that. It has granted limited and carefully defined powers. It has carefully discriminated between right of way, additional right of way, and easements outside the right of way. Its practice has been to grant power with respect to each in limited and carefully defined fashion. In the general highway act, the commissioner was granted the power to acquire right of way only. Counties and towns were granted the power to acquire right of way of specified width and "additional right of way" for construction and maintenance. Then, piecemeal, they were granted by subsequent statutes the right to acquire additional right of way for purposes of safety of public travel. Later, both the commissioner and county and town officials were given for the first time the power to acquire an easement of any sort, and that was limited to one for snow fences. The grants were couched in terms previously judicially defined not only as not including the power here asserted, but as positively excluding it. More than that, the legislature contemplated that the exercise of the power granted should simultaneously therewith create in the abutting owner a right of access to any road for which his land might be taken. It was never thought that the power which was intended to create the right should be used to take it away. All this bespeaks to my mind a plain legislative denial of the power here asserted. We cannot hold that the commissioner has such power without to that extent legislating judicially.

This is a case where the legislature, if the power here asserted is to be exercised, should speak in the light of changed conditions. It should determine whether the commissioner shall have the right to take the abutting owners' right of access at all; whether, if granted, the power shall be limited to new highways as in New York or shall extend to all highways as in some states; whether the right shall be limited to certain types of roads, and, if so, to which ones; whether there shall be any limitation as to the distances where access may be denied — whether it may be five miles, as was the distance against making U turns in the Jones Beach case, or a greater or shorter distance; and perhaps other matters proper for legislative consideration.

Because the commissioner lacks the power to take the abutting owners' right of access to the road in question, there should be a reversal with directions to dismiss the proceeding as to the appellant.

² Unless otherwise specified, statutory references herein are from Minn. St. 1941, followed by corresponding sections in Mason St. 1927.

³ Bulletin, "Public Control of Highway Access and Roadside Development," issued in 1943 by the Public Roads Administration, Federal Works Agency. In Appendix B thereof, the statutes with their citations are printed:

California, pp. 76-77 Massachusetts, p. 89 Colorado, pp. 78-79 Michigan, pp. 89-90 Connecticut, pp. 79-80 New Hampshire, pp. 90-91 Florida, pp. 80-83 New York, pp. 91-94 Illinois, pp. 83-85 Ohio, pp. 94-95 Louisiana, pp. 85-86 Rhode Island, p. 95 Maine, p. 86 Texas, pp. 95-96 Maryland, pp. 87-88 Virginia, pp. 96-97 West Virginia, pp. 97-98

⁴ The Michigan statute provides: "For the purposes of this act, the aforesaid agencies may acquire private property and property rights by purchase, gift, devise, or condemnation, and the provisions of any existing laws of this State shall apply. All property rights acquired under the provisions of this Act shall be in fee simple estate."

⁵ The California and Virginia statutes are fair examples. The California statute provides: "No State highway shall be converted into a freeway except with the consent of the owners of abutting lands or the purchase or condemnation of their right of access thereto." The Virginia statute provides: "Sec. 1975 yy.(3) The State highway commission may designate an existing highway as or included within a limited access highway and existing easements of access, light or air may be extinguished by purchase, eminent domain, or grant, in accordance with the methods of obtaining rights of way for highway purposes."

⁶ Appendix A, Id. Bulletin, pp. 73-75.