Bruggerman v. True

• Decision Date: 29 June 1878
• Citation: 25 Minn. 123
• Parties: MARTIN BRUGGERMAN <I>vs.</I> J. F. TRUE and another.
• Court: Minnesota Supreme Court

25 Minn. 123

MARTIN BRUGGERMAN vs. J. F. TRUE and another.

Supreme Court of Minnesota.

June 29, 1878.

Appeal by plaintiff from an order of the district court for Ramsey county, Brill, J., presiding, refusing a new trial.

S. L. Pierce and J. Mainzer, for appellant.

Davis, O'Brien & Wilson, for respondents.

BERRY, J.

The plaintiff, claiming to be owner in possession of certain land, brings this action against the defendants for unlawfully entering upon the same, digging up the soil, etc. The defence is, that the alleged unlawful acts were done under the authority of the proper town supervisors, in and about the working of a highway, which had been duly and legally laid out, and directed to be opened and worked, at the locus in quo.

The proceedings for laying out the highway were had in 1870, under the provisions of Gen. St. c. 13, §§ 33-43, as amended by Laws 1867, c. 30, § 4, and Laws 1868, c. 48, § 2. By section 38, the town supervisors are authorized to assess the damages occasioned to any land-owner by the laying out or opening of a road, in case the amount of such damages is not agreed upon. The statute does not require any notice of the assessment to be given to the land-owner, so that he can be heard upon it. Section 39 provides that any person, owner of or agent for any land over which a highway is laid out, feeling himself aggrieved by any order made by the supervisors, may appeal from the same to three county commissioners. Sections 41, 42 and 43 provide that the commissioners to whom an appeal is taken shall fix upon a time of meeting to consider the same, at a convenient place at or near the road to be examined; that notice of such time and place shall be served by the person making the appeal, upon the supervisors, and upon three of the petitioners for the road; that the three commissioners shall meet at the time and place aforesaid, and hear the proofs and allegations of the parties; that they shall have power to issue process to compel the attendance of witnesses; that their decision shall embrace the whole matter in controversy; that they shall, first, consider the propriety and expediency of locating the road, and secondly, the subject of damages, if such subject was embraced in the appeal; and they shall fix on the amount of damages which, in their judgment, is right and just to be paid to each person claiming damages.

It is claimed that the above provisions of section 38 are unconstitutional, because the supervisors represent the town, which is the party treating for the right of way, and they are, therefore, not a properly impartial tribunal. In support of this position Langford v. Com'rs of Ramsey County, 16 Minn. 375, is relied on. That was a case in which certain persons were, by an act of the legislature, appointed commissioners for the special purpose of laying out a certain road and ascertaining and determining the compensation proper to be made for the damages thereby occasioned, and their decision was final. The court, after having laid down the proposition that the owner of land taken for public use has a right to require that an impartial tribunal be provided for the determination of the question of compensation, before which both parties may meet and discuss their claims on equal terms, proceed to say, with regard to the case before it, that "the commissioners to determine the compensation are private citizens, appointed directly by the legislature, without the consent of the persons whose land is taken for the public. No notice of the proceedings before the commissioners is given. The land-owner is not authorized to appear at any stage of the proceedings; * * the proceedings are entirely ex parte." It was accordingly...