(dissenting).
I dissent. More deference should be given by the majority to the usual, traditional definitions of the words used in the statutes involved. The term “highway” is specifically defined in the statute (North Dakota Century Code § 24-01-01.1, paragraph 20). The restriction on ownership of minerals found in NDCC §§ 24-01-18 and 24-01-32 apply only to lands “underlying” property taken or acquired for highway purposes. Inasmuch as the word “underlying” has received little definitive attention by the courts, it is imperative that we view it in its common usage. NDCC § 1-02-02. Webster’s New World Dictionary of the American Language (2d College Ed.1980) defines “underlying" as “lying under; placed beneath.”
The premise that the conveyance of this land to the State is the same as by eminent domain fails when the appropriate provisions of NDCC § 24r-01-18 and § 24-01-32 are examined. In those statutes, the mineral restriction refers to lands “. . . acquired or taken ... . ” Obviously, the framers of the legislation involved contemplated situations where the State would take land (condemnation) and in which the State would acquire land by purchase as in this case. The more general statute (NDCC § 32-15-03) restricts the receipt of minerals only in cases where lands are “taken” for public use. Although the definition of “fee simple” is qualified in NDCC § 24-01-01.1(16), this qualification extends only to lands “. .. acquired or taken for highway, road or street purposes.” The entire wording of NDCC §§ 24-01-32 and 24-01-18 imports that in other acquisitions title will be taken in the usual fee simple estate which would include ownership of the minerals. In my opinion, tract 2 was not taken for highway purposes as contemplated by the aforecited statutes.
It is interesting to note that a portion of NDCC § 24-01-32 states in part:
“... highway authority may, in its discretion, acquire an entire lot, block, or tract of land, if, by so doing, the interests of the public will be best served, even though said entire lot, block, or tract is not immediately needed for the right of way proper.” [Emphasis supplied.]
It would have been a very simple matter for the Legislature to have stated words to the effect that such collateral acquisition could be made only without minerals. They did not. Tract 2 is such an acquisition.