Hennepin County v. Mikulay

• Decision Date: 28 January 1972
• Docket Number: Nos. 43434,43439,s. 43434
• Citation: 292 Minn. 200,194 N.W.2d 259
• Parties: COUNTY OF HENNEPIN, Respondent, v. Arnold P. MIKULAY, a.k.a. Arnold Mikulay and Leonard Mikulay, Appellants.
• Court: Minnesota Supreme Court

Page 259

194 N.W.2d 259

292 Minn. 200

COUNTY OF HENNEPIN, Respondent, v. Arnold P. MIKULAY, a.k.a. Arnold Mikulay and Leonard Mikulay, Appellants.

Nos. 43434, 43439.

Supreme Court of Minnesota.

Jan. 28, 1972.

Syllabus by the Court

1. Where affidavits are submitted in support of a motion for summary judgment, the nonmoving party cannot rely upon general statements in a pleading but must show by answering affidavits or other persuasive proof that material fact issues exist for trial by the finder of facts.

2. Where the property owner has surrendered possession and the property has been accepted by the condemnor, an action in ejectment has become moot.

3. When property is taken directly by the county, a charge upon the public treasury is a sufficient compliance with the requirement of Minn.Const. art. 1, § 13, that compensation be first paid or secured.

4. Ordinarily, the question as to whether land is taken for a public purpose must be raised and determined at the hearing on the petition to condemn. However, where the condemnor's intention to abandon the taking for a public purpose first appears after such hearing, an opportunity ought to exist to contest such taking.

5. The authorities are in conflict as to when the condemnor loses the right to abandon a condemnation proceeding. The general rule is that, when the reciprocal rights of the parties have vested, the right to abandon is lost. The difficulty in applying this rule lies in determining when the reciprocal rights of the parties have vested. In this case, when the landowners surrendered possession and it was accepted by the condemnor, coupled with acceptance by the landowners of three-fourths of the amount of the award, the right to abandon was lost.

O'Connor, Green, Thomas, Walters & Kelly, and James R. Dorsey, Minneapolis, for appellants.

George M. Scott, County Atty., Floyd B. Olson, Asst. County Atty., Minneapolis, for respondent.

Heard and considered en banc.

OPINION

KNUTSON, Chief Justice.

This is a consolidated appeal from summary judgments entered by the District Court of Hennepin County.

Appellants herein, Arnold P. and Leonard J. Mikulay, were the owners of three parcels of land in downtown Minneapolis involved in a condemnation proceeding commenced by Hennepin County for the acquisition of land on which to build a new county hospital. The land owned by the Mikulays was described as parcels 3, 5, and 10 in the condemnation petition. A more detailed description is unnecessary. On December 10, 1970, a hearing was held in the district court on the petition to condemn. The Mikulays were present at the hearing but made no objection to the taking, so on December 22 the petition was granted and commissioners were appointed pursuant to statute.

On March 26, 1971, the commissioners filed their report. The Mikulays were willing to accept the commissioners' appraisal on all three parcels and took no appeal from the award. Hennepin County, however, filed appeals as to parcels 3 and 5.

The county filed a motion, apparently under Minn.St.1969, § 117.20, subd. 5, ¹ for permission to deposit with the clerk of district court three-fourths of the amount of the award. The Mikulays then moved for leave to file a supplemental answer contesting whether the county intended to take the land involved for a public purpose. The court on July 9, 1971, made its order authorizing the county to deposit with the clerk of court the sum of $171,375, that amount being three-fourths partial payment of the award plus appraisal fees, and it also permitted the Mikulays to file a supplemental answer. It was further provided that the amount of money deposited should not be released 'until there has been an order of (the trial) Court entered that (the Mikulays) have relinquished possession of the property designated as Parcels numbered 3 and 5 herein.'

Thereafter, the Mikulays did file a supplemental answer, in which they alleged that the land was not being taken by the county for a public use but that instead it was the county's intention to sell part of the land. The Mikulays now concede that parcel 5 was taken for a public purpose, so this appeal concerns only parcel 3.

The county thereafter moved for summary judgment, seeking a determination that the taking of the property was for a public purpose. It then commenced an action in ejectment, seeking to gain possession of the property, and subsequent thereto it moved for summary judgment in that action also.

The motions for summary judgment were supported by affidavits of Floyd B. Olson, assistant county attorney; Jack M. Provo, chairman of the Board of County Commissioners; and Stanley R. Cowle, administrator of Hennepin County. All affidavits alleged that the taking of the parcels involved was necessary for public purposes. Cowle's affidavit, which is characteristic of the three, states among other things:

'* * * (A)ll parcels * * * are necessary for * * * the present and future development of the new Hennepin County General Hospital; that the block between Sixth and Seventh Streets and Portland and Park Avenues will be used for direct or auxiliary medical facilities or may be used for parking in connection with the new Hennepin County General Hospital for the public and/or employees thereof; that if subject block is not immediately used for the new Hennepin County General Hospital, that other interim public uses auxiliary to the needs of the new Hennepin County General Hospital may be employed by the Hennepin County Board of Commissioners; that subject block has been identified by the architects and planners as a land resource to be part of both the short-range and long-range requirements to support the development of the major medical complex within the guidelines established by the Metropolitan Health Board.'

The motion also finds support in a deposition of Cowle, taken at the Mikulays' instance, in which he testified that all the property was needed for the present and future use of the hospital. No counteraffidavits were submitted by the Mikulays nor did they present any other material which was persuasive as to the existence of any issue of fact.

On August 10, 1971, the court granted summary judgments on both motions. In its memorandum, the court, among other things, said:

'Under our statutes there is no provision authorizing the defense that condemnation proceedings are not for a public purpose to be raised for the first time upon appeal from the Commissioners' award, whoever the appellant might be. Even if permitted to be raised after the award, in this case a review of the file, affidavits and deposition does not establish a scintilla of admissible evidence that the acquisition of defendants' land is other than for public hospital purposes. The claim apparently is based solely upon an out of court reflection by one of the county commissioners.'

1. We have held on a number of occasions that where affidavits are submitted in support of a motion for summary judgment under Rule 56, Rules of Civil Procedure, the nonmoving party cannot simply rely upon general statements in a complaint. We think the same rule applies to the supplemental answer we have here. A party cannot create a fact issue by claiming that the facts which may be developed on cross-examination at the time of trial will permit him to reach the trier of facts. Instead, the nonmoving party must show at the time of answering that specific facts do exist which create an issue for the trier of facts. Rosvall v. Provost, 279 Minn. 119, 155 N.W.2d 900 (1968); Ahlm v. Rooney, 274 Minn. 259, 143 N.W.2d 65 (1966); Borom v. City of St. Paul, 289 Minn. 371, 184 N.W.2d 595 (1971); Morgan v. McLaughlin, 290 Minn. 389, 188 N.W.2d 829 (1971).

We have recognized that Rule 56 was amended in 1959 'to provide that if a summary judgment motion is supported by affidavits, depositions, etc., the nonmoving party cannot rely on assertions in his pleadings to create fact issues. If the summary judgment motion is to be properly contested, the adverse party must present specific facts showing a genuine issue for trial unless, of course, the facts asserted by the moving party fail to adequately negate any issue of fact raised by the pleading.' Ahlm v. Rooney, 274 Minn. 259, 262, 143 N.W.2d 65, 68 (1966). See, 2 Hetland & Adamson, Minnesota Practice, Civil Rules Ann., Authors' Comments to Rule 56, p. 570.

It follows that in this case, where there was nothing persuasive submitted in opposition to the affidavits supporting the motion for summary judgment, the court properly granted the motion.

2. As far as the ejectment case is concerned, that has now become moot by virtue of the surrender of possession by the landowners to the county and the county's acceptance of such possession. There is no longer anyone to eject, so there is nothing for us to decide as far as that appeal is concerned.

3. The Mikulays' claim that there may have been a change of the county's plans to use the property for hospital purposes is based on two newspaper articles, one of which appeared in the Minneapolis Tribune on June 2, 1971, and the other in the Minneapolis Star on June 28, 1971. These articles purported to relate statements by the chairman of the Hennepin County Board and the administrator of the county that some of the condemned land might be sold to the public because of some revisions in the hospital construction plans. Apparently, the description of the land that might be sold included parcels 3, 5, and 10, the Mikulays' property, or some part thereof. While it does not appear in the record, it was admitted on oral argument that subsequent to the granting of summary judgment by the lower court the Mikulays surrendered and the county took possession of the property involved, and that the Mikulays have accepted and have been paid the amount deposited with the clerk of court, which represents three-fourths of the amount of the commissioners' award.

While the Mikulays...