DIBELL, Justice.
The defendant Matthew Keeley appeals from an order of the district court of Waseca county made March 14, 1932, denying his motion that the state include 40 acres, owned by him, in a pending condemnation proceeding for the acquisition of a right of way for a portion of trunk highway No. 7 in Waseca county, to the end that damages therefor be assessed. Upon the hearing an order dated January 5,1932, was made requiring the inclusion of the 40. After-wards the court of its own motion, by an order dated March 14, 1932, the one now on appeal, vacated the order of January 5, 1932, and denied defendant’s motion. This it did in view of State, by Benson, v. Erickson, 185 Minn. 60, 239 N. W. 908, decided December 24, 1931, which had not come to its attention at the time of the January order.
As far as concerns the defendant’s motion now before us the facts are not in controversy. They are to be taken as recited in the record. Whether upon a hearing they may be found otherwise is not important. A brief statement of them, with a like statement of the applicable law, and our conclusion as to the result which should follow, will be enough.
The constitution, art. 16, approved at the November, 1920, election, creates and establishes a trunk higlnvay system to be located, constructed, reconstructed, improved, and forever maintained by the state. By L. 1921, p. 406, c. 323, now embodied in G. S. 1923
(1 Mason, 1927 & 1931 Supp.) § 2542, et seq., there was enacted the general highway act, which provided for the construction and maintenance of highways. It was enacted because of the adoption of art. 16 of the constitution. It created the office of commissioner of highways (§ 2553) and authorized him to acquire by purchase, gift, or condemnation, as provided by statute, all necessary rights of way and to locate and maintain the highway system (§ 2554). It was contemplated that the general statutes relative to condemnation should be the basis of procedure when land was condemned. G. S. 1923 (2 Mason, 1927) c. 41, § 6537, et seq.
The commissioner of highways located a portion of trunk highway No. 7 in Waseca county west of the city of Waseca. The right of way was acquired by condemnation. The defendant Matthew Keeley, who appeals, was the owner of certain tracts of land included in the condemnation proceeding. As to them there is no complaint. He was the owner of a 40-acre tract which was not included in the condemnation. It was not contiguous to his other lands, but had been used in connection with them for
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years or more; nor did it adjoin the highway. It was contiguous to lands condemned for highway purposes in the pending proceeding.
In constructing the highway and as part of the engineering plan, the commissioner diverted waters from their natural courses and watersheds and cast them upon this 40 to its damage. The use will be permanent. The defendant’s claim is that he should have compensation for the damages done to this 40, and, since he cannot sue the state, that the 40 should be brought into the condemnation proceeding for the assessment of damages by the commissioners. That the 40 was taken or used and is damaged is not in question on this motion.
It is not to be supposed that it was intended by art. 16 of the constitution nor by the highway act of 1921 that property could be taken or damaged for a right of way without compensation to the owner.
Art.'l, § 7, of the constitution provides in part that no person shall “be deprived of life, liberty or property without due process of law.”
Art. 1, § 8, provides:
“Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely and without purchase; completely and without denial; promptly and without delay, con-formably to the laws.”
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 state cannot be sued without its consent. This is so not because of a constitutional or statutory protection given the state, but because of public policy. 6 Dunnell, Minn. Dig. (2 ed. & Supp.) § 8831; 59 C. J. p. 300, § 459, et seq. And, since it cannot be sued, the state claims that a property owner who is damaged or whose land is taken, as here, but who is not included in the condemnation proceeding, cannot have himself or land made a party so that an award may be made for the damaging or taking; for this, so the argument runs, would amount to a suit against the state; and in addition there is the contention that it would allow the courts to determine matters of condemnation which are essentially legislative. State ex rel. Smith v. Van Reed, 125 Minn. 194, 145 N. W. 967; State, by Hilton, v. Voll, 155 Minn. 72, 192 N. W. 188; State, by Benson, v. Erickson, 185 Minn. 60, 239 N. W. 908; 2 Dunnell, Minn. Dig. (2 ed.) § 3014, and cases cited. The defendant does not claim that in general the exercise of the right of eminent domain is not legislative. Whether the contemplated use is public and what damages will compensate are judicial or quasi judicial. State ex rel. Utick v. Bd. of Co. Commrs. of Polk County, 87 Minn. 325, 92 N. W. 216, 60 L. R. A. 161; Burns v. Essling, 156 Minn. 171, 194 N. W. 404; 2 Dunnell, Minn. Dig. (2 ed. & Supp.) § 3027, and cases cited.
The showing at the present time is that the state planned and constructed a trunk highway west from Waseca 15 miles and in-
eluded 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 con-demnor had been a railroad or a municipality the defendant would 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 un-condemned 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.
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DIBELL, Justice.
The defendant Matthew Keeley appeals from an order of the district court of Waseca county made March 14, 1932, denying his motion that the state include 40 acres, owned by him, in a pending condemnation proceeding for the acquisition of a right of way for a portion of trunk highway No. 7 in Waseca county, to the end that damages therefor be assessed. Upon the hearing an order dated January 5,1932, was made requiring the inclusion of the 40. After-wards the court of its own motion, by an order dated March 14, 1932, the one now on appeal, vacated the order of January 5, 1932, and denied defendant’s motion. This it did in view of State, by Benson, v. Erickson, 185 Minn. 60, 239 N. W. 908, decided December 24, 1931, which had not come to its attention at the time of the January order.
As far as concerns the defendant’s motion now before us the facts are not in controversy. They are to be taken as recited in the record. Whether upon a hearing they may be found otherwise is not important. A brief statement of them, with a like statement of the applicable law, and our conclusion as to the result which should follow, will be enough.
The constitution, art. 16, approved at the November, 1920, election, creates and establishes a trunk higlnvay system to be located, constructed, reconstructed, improved, and forever maintained by the state. By L. 1921, p. 406, c. 323, now embodied in G. S. 1923
(1 Mason, 1927 & 1931 Supp.) § 2542, et seq., there was enacted the general highway act, which provided for the construction and maintenance of highways. It was enacted because of the adoption of art. 16 of the constitution. It created the office of commissioner of highways (§ 2553) and authorized him to acquire by purchase, gift, or condemnation, as provided by statute, all necessary rights of way and to locate and maintain the highway system (§ 2554). It was contemplated that the general statutes relative to condemnation should be the basis of procedure when land was condemned. G. S. 1923 (2 Mason, 1927) c. 41, § 6537, et seq.
The commissioner of highways located a portion of trunk highway No. 7 in Waseca county west of the city of Waseca. The right of way was acquired by condemnation. The defendant Matthew Keeley, who appeals, was the owner of certain tracts of land included in the condemnation proceeding. As to them there is no complaint. He was the owner of a 40-acre tract which was not included in the condemnation. It was not contiguous to his other lands, but had been used in connection with them for
SO
years or more; nor did it adjoin the highway. It was contiguous to lands condemned for highway purposes in the pending proceeding.
In constructing the highway and as part of the engineering plan, the commissioner diverted waters from their natural courses and watersheds and cast them upon this 40 to its damage. The use will be permanent. The defendant’s claim is that he should have compensation for the damages done to this 40, and, since he cannot sue the state, that the 40 should be brought into the condemnation proceeding for the assessment of damages by the commissioners. That the 40 was taken or used and is damaged is not in question on this motion.
It is not to be supposed that it was intended by art. 16 of the constitution nor by the highway act of 1921 that property could be taken or damaged for a right of way without compensation to the owner.
Art.'l, § 7, of the constitution provides in part that no person shall “be deprived of life, liberty or property without due process of law.”
Art. 1, § 8, provides:
“Every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely and without purchase; completely and without denial; promptly and without delay, con-formably to the laws.”
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 state cannot be sued without its consent. This is so not because of a constitutional or statutory protection given the state, but because of public policy. 6 Dunnell, Minn. Dig. (2 ed. & Supp.) § 8831; 59 C. J. p. 300, § 459, et seq. And, since it cannot be sued, the state claims that a property owner who is damaged or whose land is taken, as here, but who is not included in the condemnation proceeding, cannot have himself or land made a party so that an award may be made for the damaging or taking; for this, so the argument runs, would amount to a suit against the state; and in addition there is the contention that it would allow the courts to determine matters of condemnation which are essentially legislative. State ex rel. Smith v. Van Reed, 125 Minn. 194, 145 N. W. 967; State, by Hilton, v. Voll, 155 Minn. 72, 192 N. W. 188; State, by Benson, v. Erickson, 185 Minn. 60, 239 N. W. 908; 2 Dunnell, Minn. Dig. (2 ed.) § 3014, and cases cited. The defendant does not claim that in general the exercise of the right of eminent domain is not legislative. Whether the contemplated use is public and what damages will compensate are judicial or quasi judicial. State ex rel. Utick v. Bd. of Co. Commrs. of Polk County, 87 Minn. 325, 92 N. W. 216, 60 L. R. A. 161; Burns v. Essling, 156 Minn. 171, 194 N. W. 404; 2 Dunnell, Minn. Dig. (2 ed. & Supp.) § 3027, and cases cited.
The showing at the present time is that the state planned and constructed a trunk highway west from Waseca 15 miles and in-
eluded 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 con-demnor had been a railroad or a municipality the defendant would 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 un-condemned 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 state urges that the defendant has a sufficient remedy by petitioning the legislature for an appropriation of the amount which it would have had upon a, judicial determination in the condemnation proceeding, that is, the amount of his damages. The right to petition the legislature for relief when there is no legally enforceable right is recognized. The legislature may give it or deny it. There is no method of judicial review. The constitution
intends that when a man is deprived of his property he shall have a judicial determination of the amount of damages, a hearing where he may of right offer evidence, and as a result of which he may have enforceable damages. It need not be a judicial determination by judge and jury; but in some sensible way it must be a judicial determination of damages sustained.
The case upon which the state relies is State, by Benson, v. Erickson, 185 Minn. 60, 239 N. W. 908. This is the case, as noted before, which led the trial court to the view that its order of January 5, 1932, was wrong, and induced the order from which the appeal is taken. It was justified in doing as it did. Distinctions may be drawn between this and the Erickson case. But upon the basic principle upon which we rest the right of the defendant to get his land into the condemnation proceeding, the two cases are inconsistent. So far as the Erickson case conflicts with this it is overruled.
Order reversed.