(concurring specialty)-
I agree with the court’s opinion but wish to add these further comments.
The jury awarded $45,000 for the small tract, taken in fee, on which the buildings stood (the homestead tract). This award is reversed, since the district court, on appeal from the commissioners’ award, did not have authority at the damage trial to change the nature of the property interest taken from an easement to a fee. The jury also awarded $90,000 for the taking of an easement over the balance of the Hilger farm (the farm tract). We affirm this award and hold the Hilgers may, in addition, bring a mandamus action for inverse condemnation to take the underlying fee. Presumably, in the new mandamus action the Hilgers will ask the court to compel the city to take the fee of the homestead tract as well.
The proper forum for resolving the issue of whether a fee or an easement is to be taken was at the initial hearing on the city’s petition to condemn. Minn. Stat. § 117.075 (1980); see Cooperative Power Ass’n v. Eaton, 284 N.W.2d 395 (Minn.1979). Review of an adverse ruling would occur
either in a subsequent appeal from the final certificate or on a successful petition for review to this court. County of Blue Earth v. Stauffenberg, 264 N.W.2d 647 (Minn.1978). Apparently it did not occur to the Hilgers to raise the issue of a fee taking until much later, so the district court in the hearing on the petition did not have an opportunity to rule. Under the unusual circumstances here, I agree the landowners may still raise the issue.1
The court’s opinion says, “[W]e see nothing barring Hilgers from seeking mandamus to compel condemnation of the fee even though a lesser interest in the form of an easement has already been acquired.” I agree, but I do not take this to mean that the court in the new mandamus action must necessarily find inverse condemnation will lie. Much will depend on the evidence adduced.
It is important to keep in mind what has already been property taken and compensated for, namely, the following easement over the farm tract:
A perpetual avigation easement and right-of-way for the unobstructed and unrestricted flight of aircraft in, through, and across the airspace over and above the following-described tracts or parcels of land, at any altitude or height above the surface of such tracts, whereby the owners and occupants of such land, and all successors and assigns of such owners and occupants (hereinafter collectively called the “Owners”) shall be precluded from erecting, maintaining or allowing any building, structures or object to remain or be placed upon such land, provided that the Owners shall specifically retain the right to use such land for seasonal crop farming purposes, and whereby the Owners shall be precluded from using or suffering the lands to be used in such a manner as might attract or bring togeth*615er an assembly of persons upon such land, excluding farming or harvesting activities, which avigation easement shall be subject to any and all existing easements of record; the right of the Owners to maintain, repair and replace fences existing upon such lands as of the 10th day of October, 1978; the right of the Owners to operate farm machinery upon such lands in connection with permitted farming activities; the right of the Owners to maintain, repair and replace all tile lines and drainage facilities existing upon such lands as of the 10th day of October, 1978; and the right of the Owners to leave in place, maintain and repair, but not to enlarge or erect any addition or attachment to, structures existing upon such Tract 6B as of the 10th day of October, 1978, and to leave in place, maintain and permit to grow, any trees and shrubs existing upon such Tracts 6A and 6B as of the 10th day of October, 1978. The responsibility for the removal of any other trees shall be that of the petitioner, and the cost of such removal shall be borne solely by the petitioner.
I do not consider this property interest taken to be an “avigational” easement in the Alevizos sense. See Alevizos v. Metropolitan Airports Commission of Minneapolis & St. Paul, 298 Minn. 471, 216 N.W.2d 651 (1974). It is a taking of an interest in the McShane sense. See McShane v. City of Faribault, 292 N.W.2d 253 (Minn.1980). Here the property interest taken encompasses a physical invasion by aircraft of the airspace over the land at any height and takes away the right of the landowner, with minimal exceptions, to put any structures on the land.
In a new mandamus proceeding the court will have to decide if the city is required to condemn the fee, both as to the farm tract and the homestead tract, or if it need take only an easement as to the homestead tract. As to the farm tract, I should think the issue is whether or not the land subject to the easement has been or will be damaged by the airport operation. The Hilgers have already been compensated for being denied the highest and best use of the farm tract, namely, for development for residential use. The question now is whether the land’s use for farming is so impaired that the fee title should be taken. (In this connection, I note the commissioners apparently felt the land was still usable for farming, even though subject to the easement.) As to the homestead tract, it would seem the question is whether the use of the premises as a residence has been so impaired that the fee rather than an easement should be taken, notwithstanding the city proposes to allow the homestead buildings to stand as a nonconforming use.
. My reading of McShane v. City of Faribault, 292 N.W.2d 253 (Minn.1980), is that mandamus does lie for a taking by intrusive governmental regulations. In McShane, however, after finding a taking, we gave the city an option to first decide if it wished to continue the regulations. We ordered an injunction to issue against enforcement of the offending zoning regulations, but conditioned it on either repeal of the ordinance “or initiation of eminent domain proceedings.” In other words, if the city decided to keep the zoning ordinance in force, it had to condemn the property interest.