(dissenting).
The majority opinion concedes that the form of relief sought in the original mandamus action is in personam, but contends that the sole determination to be made relates directly to land, and that therefore § 542.02, quoted in the opinion, applies. How the original mandamus action can be considered an action “for * * * the determination in any form of an estate or interest therein [referring to real estate], and for injuries to lands within this state” (italics supplied), I am unable to see. If a writ be issued in the original action, it must necessarily be one in personam against the commissioner to compel him to initiate legal proceedings, that is, to compel him to request the attorney general to commence condemnation proceedings. See, State, by Peterson, v. Anderson, 220 Minn. *191139, 152, 19 N. W. (2d) 70, 76. The second action, or proceeding, if brought by the attorney general, will, of course, relate to land in Scott county, but the original mandamus action, if determined adversely to the commissioner, simply directs him to have another action initiated.
State ex rel. Bd. of Water Commrs. v. District Court, 230 Minn. 507, 42 N. W. (2d) 201, cited as authority by the majority, for its position, was an action to enjoin drainage of a lake to prevent injury to riparian owners. It was an action in trespass. We held that, since an action to enjoin trespass upon lands is an action to prevent injury thereto, it follows that under § 542.02 such an action should be tried in the county where the lands are situated. We there said (230 Minn. 510, 42 N. W. [2d] 203):
“In the instant case, as previously stated, the action is for trespass, and the principal and primary relief sought relates to lands in Anoka county. It is true that the injunction prayed for will enjoin defendant in personam. This, however, relates only to the relief prayed for and is ancillary to the main question involved, that is, the trespass upon plaintiffs’ property. Therefore, this is an action wholly local in nature, and, under § 542.02, it should be tried in Anoka county, where the lands are situated.” (Italics supplied.)
The writ prayed for in the original mandamus action is not ancillary to any other relief prayed for, as was the case of the injunction prayed for in State ex rel. Bd. of Water Commrs. v. District Court, supra. The writ is the only relief prayed for, and therefore primary. Here, as stated, a writ is being asked to compel the commissioner of highways to have the attorney general institute condemnation proceedings, which, of course, will affect lands in Scott county. The writ, if granted, can have no effect whatsoever on lands. Later proceedings would. The institution of the second proceeding would be necessary to reach a stage where lands would be affected. In State ex rel. Bd. of Water Commrs. v. District Court, supra, that stage was reached in the one proceeding. *192Admittedly, it will be necessary to make a showing why the writ should issue here. Evidence will have to be produced to show why the commissioner should be compelled to act, but compelling him can have no direct effect whatsoever on lands which the owners desire to have condemned by the state. The primary purpose of the original mandamus action is to compel a public official to perform a ministerial duty. The rest is incidental.
If it appears that the convenience of witnesses dictates a different venue, the venue can be changed as in any other action by the expeditious procedure provided by § 512.11.
The majority opinion makes an inherently m personam transitory action local merely because it ultimately leads to a local action. It provides a procedural short cut, which if it has any merit lies in the fact that it is a short cut, but which, in my opinion, cannot be justified. I respectfully dissent and would have the writ issue.