I cannot accede to the majority view. Kopp's property has been taken by the state, and he has received no compensation therefor. He has lost two years' crops, and the market value of his land has been materially decreased. The majority opinion summarily denies Kopp any compensation for this taking and, by relegating him to the legislature, in effect denies him any relief. Sending Kopp to the legislature is a sterile, fruitless procedure. In view of this fact and in view of the fact that Kopp will get no relief unless we give it to him, I believe we should not adhere to technicalities. We should hold that Kopp's time to intervene has not lapsed. The majority opinion overlooks substantial justice and adheres to technical nicety. I believe that the certificate here filed pursuant to 2 Mason Minn. St. 1927, § 6557-1, did not end the proceeding so as to prevent Kopp from intervening at this time. The proceeding is *Page 87 entirely statutory, and I believe we should interpret it liberally so as to accomplish substantial justice.
In my opinion the court correctly held that the state acquired an easement to flood Kopp's land. Art. 1, § 7, Minn. Const. provides in part that no person shall "be deprived of life, liberty or property without due process of law." Art. 1, § 13, provides: "Private property shall not be taken, destroyed or damaged for public use, without just compensation therefor first paid or secured." The court did not err in concluding that the state had acquired an easement on Kopp's land. It conclusively appears that such land was flooded during part of two successive summers, and it seems very likely that it will be flooded in the future. This constitutes a taking of private property for public use and should be given the status of an easement so that the state may have a continuing right to do what it has here done and so that there may be no future objection thereto. A case on all fours with the case at bar (with one exception later noted) is State, by Benson, v. Stanley, 188 Minn. 390, 247 N.W. 509. This case expressly overruled any prior inconsistent decisions and by so doing changed the law in this state. It announced a new rule under which those property owners from whom an easement is taken may find a facile means of reaching the courts and of obtaining just compensation. In the Stanley case, 188 Minn. 390,247 N.W. 509, the state, in the process of constructing a highway, diverted waters from their natural course and cast them onto defendant's land. The defendant petitioned to have the land so damaged included in the condemnation proceedings, and this court so ordered. What we said there has equal and direct application to the case before us now (188 Minn. 393, 394):
"The showing at the present time is that the state planned and constructed a trunk highway west from Waseca 15 miles and included in the condemnation proceeding lands which it thought necessary, and is making use of defendant's 40, for which it made no compensation. It was proper to include this 40 and to award damages. The state invoked the jurisdiction of the district court to acquire the right of way for the general road project. If the condemnor had been a railroad or a municipality the defendant would *Page 88 have had a remedy by suit for damages or by injunction. Here he has no remedy by suit for damages. Whether he might have enjoined the use of this 40 by a proceeding against the highway commissioner we do not consider. Since the state has chosen to invoke the jurisdiction of the court in the establishment of a comprehensive trunk highway and has chosen to use and damage the defendant's 40 without condemning it, we hold that the landowner may intervene by motion in the condemnation proceeding and that the court may say to the state that it must bring the land of the defendant, concededly taken and damaged, into the proceeding for the assessment of compensation. And this seems almost a necessary result of the constitutional provisions mentioned. The state cannot, with decent regard for the due process of law provision, and the provision giving everybody a remedy for wrong done his property, and the special provision against the taking of property for public use without compensation, leave out property which it uses or damages in a public project and prevent the owner from having compensation, all because it cannot be sued. If in going west from Waseca the state had left a mile gap in the highway uncondemned but used and then resisted the powers of the court to decree compensation to its owner, its position would be more startling but little different."
The lower court, having decided in the case at bar that the state had acquired an easement on Kopp's property, left the question to the jury as to whether or not Kopp was entitled to compensation therefor; that is, he let the jury determine how much of the damage to Kopp's property was caused by the state's actions in building the bridge and whether the land was of any value before the flooding. This was proper. The court instructed the jury that the state had acquired an easement to flood Kopp's land and that they, the jury, were to determine the difference between the market value of the land before and after the acquisition of the easement and were to award compensation to Kopp for that share of the decrease in market value caused by the building and maintenance of the bridge and the consequent flooding, but not for any decrease in market value due to any other causes such as a faulty ditch, poor *Page 89 dikes, etc. By finding for Kopp the jury impliedly found all the controverted issues in his favor. The instruction was fair. Under it the jury could have found that the market value of Kopp's land was not decreased if, for instance, they had believed the land to be of no value before flooding, or if they had believed that the flooding did not harm the particular use to which this was put. Also, the jury could have found that the maintenance of this bridge was not the cause of this flooding but that the same was caused by other agencies. In other words, the jury could find that the easement acquired by the state was to be used little or none at all and therefore that the market value was not decreased. This would in effect have been a finding that agencies other than the state caused the damage. The evidence was for the most part conflicting. There was, however, ample evidence to sustain the finding that the land was valuable before it was flooded; that the flooding was not an act of God but was caused by usual rains; that the county ditch was not the cause of the flooding but that the same was adequately and properly constructed and properly maintained.
In my mind there can be little question but that the court had the right to define the easement here in view of the Stanley case, 188 Minn. 390, 247 N.W. 509. The theory of the Stanley decision is that a person who claims that his property is suffering special damage and should be included in the condemnation proceedings may petition the court to include a certain piece or parcel of land therein. If it appears to the court that the property has been taken by the state and damaged, he should declare that the state has acquired an easement thereupon. This action by the court then settles the question for all time and gives the state a perpetual easement on the land for whatever purpose is stated in the decree. In so ordering, the court will not be reversed except for a clear abuse of discretion.
The jury is to determine the amount of compensation to which an owner is entitled, if any, because of the state's acquisition of an easement. This will be determined by taking the difference between the market value of the property before and after the acquisition of the easement by the state. The procedure here outlined *Page 90 must of necessity prevail if justice is to be done. In the usual case the state will not include such property in its condemnation proceeding. Relegating the owner to the legislature means nothing. So the court should allow such intervention in condemnation proceedings and, of necessity, must determine the extent of the easement. The state is an unwilling party and cannot be expected to define the easement as it does in the usual case. Further, the intervener is a poor judge thereof. So the court must define the easement.
In my belief it was not error to let Kopp intervene even though the final decree in the condemnation proceeding had been rendered some two years previously. Herein lies the only distinction between this case and the Stanley case, 188 Minn. 390,247 N.W. 509. In the Stanley case the intervener came in before the filing of the final certificate; here the intervener is coming in two years after the filing thereof. Kopp did not have any land condemned, however, and so was in no way officially notified of the proceeding. It cannot be said that he had his chance to have his day in court but did not seize it. Further, the damage resulting from and because of the existence of this easement did not become apparent until 1932 and 1933. The certificate was entered in 1931. Kopp took action as soon as he realized his property had been taken and damaged by the state. He could do no more. I believe the judgment appealed from should be affirmed. *Page 91