City of Minneapolis v. Wilkin

• Decision Date: 01 May 1883
• Citation: 15 N.W. 668,30 Minn. 145
• Parties: City of Minneapolis v. Mary J. Wilkin. (2nd Case.)
• Court: Minnesota Supreme Court

15 N.W. 668

30 Minn. 145

City of Minneapolis v. Mary J. Wilkin. (2nd Case.)

Supreme Court of Minnesota

May 1, 1883

Certiorari. Upon the filing in the district court of Hennepin county, on February 14, 1883, of a mandate from this court in accordance with the last opinion, the relator, Mary J Wilkin, moved the district court for an order that interest be computed in her favor upon the award of $ 13,500, from June 21, 1882, the date of the filing of the first award by the commissioners appointed by the common council. The motion having been argued before the court, Lochren, J., presiding an order was made, allowing interest from February 14, 1883, the date of the filing of the mandate from this court. Thereupon the relator sued out this writ.

Merrick & Merrick, for relator.

E. M. Wilson, for respondent.

Relator's claim to interest from the time of the first award is based upon the rule in railroad condemnation; but the cases are not parallel. Interest is never allowed until there is a taking, actual or constructive. Mills on Em. Dom. §§ 175, 176. In the case of condemnation by a railroad, the law provides that possession may be taken upon the filing of the award, provided the money is tendered or bond given in case of appeal. On the contrary see section four of chapter ten of respondent's charter, (recited in the opinion.) City of Chicago v. Wheeler, 25 Ill. 478; Mills on Em. Dom. § 175.

OPINION

Mitchell, J.

Under proceedings instituted by plaintiff pursuant to chapter 10 of its charter (Sp. Laws 1881, c. 76,) to condemn defendant's land for a public park, commissioners appointed by the city council made a report on the 21st of June, 1882, awarding her, as compensation, the sum of $ 12,292, which report was confirmed by the city council. On defendant's appeal, the district court ordered a reappraisement, pursuant to section 6, chapter 10, of the city charter, and the commissioners appointed by the court made a report on the 8th of November, 1882, awarding her $ 13,500, which was duly confirmed. The important question here is whether defendant is entitled to interest upon this last assessment from June 21, 1882, the date of the filing of the award made by the first commission.

This court has repeatedly held that, in proceedings for the condemnation of property for public use under various railroad charters, the property is to be deemed taken as of the date of the filing of the award of the commissioners, and that, upon appeal, the damages are to be assessed with reference to the condition and value of the property at the date of filing such original award, and that interest is to be allowed upon the verdict from that date, unless it appears that such interest was included in the verdict or second assessment; and that, in the absence of anything in the record indicating the contrary, it must be presumed that the verdict had reference to the damages which the claimant was entitled to receive at the time the award appealed from was filed, and hence that no interest was included. Winona & St. Peter R. Co. v. Denman, 10 Minn. 208, (267;) St. Paul & Sioux City R. Co. v. Murphy, 19 Minn. 433, (500;) Sherwood v. St. Paul & Chicago Ry. Co., 21 Minn. 122; Warren v. First Div., etc., R. Co., Id. 424; Knauft v. St. Paul, S. & T. F. R. Co., 22 Minn. 173; Whitacre v. St. Paul & Sioux City R. Co., 24 Minn. 311.

That the right of the claimant to this interest was not considered dependent upon the question, which party was in the actual possession of the property pending the appeal, is evident from the reasoning and argument of the court in Warren v. First Div., etc., R. Co., 21 Minn. 424, 427. If the question was one of first impression, a plausible argument might be made in favor of the position that no interest should be allowed until the corporation had taken the actual possession of the property from the owner. But this is no longer an open question in this state. Whatever objection may be urged against the logic of the rule adopted by this court, we are satisfied that it works out practical justice more nearly than any other that can be suggested; and it has been so often affirmed and applied that it must be considered the settled law of the state, and must govern the present case, unless there be so material a distinction between the provisions of these railroad charters and of the city charter as to establish a different rule in proceedings under the latter.

That the date of the filing of the award by the first commissioners is to be deemed the time of taking the property for the purposes of assessing its value, and that, upon...