Hielscher v. City of Minneapolis

• Decision Date: 10 July 1891
• Citation: 49 N.W. 287,46 Minn. 529
• Parties: HIELSCHER v CITY OF MINNEAPOLIS.
• Court: Minnesota Supreme Court

46 Minn. 529

49 N.W. 287

HIELSCHERvCITY OF MINNEAPOLIS.

Supreme Court of Minnesota.

July 10, 1891.

(Syllabus by the Court.)

A cause of action for the recovery of damages is not stated against a municipal corporation by the plaintiff-an abutting lot-owner-in a complaint in which the only act complained of is the passage by the city council, and the subsequent approval by the mayor, without the consent of the plaintiff, and without any compensation whatsoever to him, of a resolution or ordinance declaring a part of a public way abandoned and vacated.

Appeal from district court, Hennepin county; SMITH, Judge.

Edward C. Gale, for appellant.

Robert D. Russell and Wm. H. Morse, for respondent.

COLLINS, J.

Appeal from an order sustaining a general demurrer to the complaint in an action wherein the plaintiff demanded judgment for damages. In this pleading the plaintiff, after setting forth that he was the owner of a duly-described lot in the city of Minneapolis, alleged the passage by the city council on a certain day, and the subsequent approval by the mayor, of a resolution or ordinance whereby that part of Nineteenth avenue, a public street, which extended from Washington avenue west 165 feet to the rear end of plaintiff's lot, at which point Nineteenth avenue terminated, had been forever closed, vacated, and abandoned; that these proceedings were wholly without his knowledge or consent, and without any compensation to him whatsoever. It was further alleged that, since the abandonment, that part of the avenue covered by the vacating resolution or ordinance had been filled and occupied with buildings and other obstructions, whereby the plaintiff had been deprived of his so-called “frontage” thereon, and of all access to Washington avenue, save by a circuitous route. It will be noticed that plaintiff's right to obtain a money judgment against the defendant city is based upon the action of its authorities in respect to vacating and abandoning the avenue immediately in the rear of plaintiff's premises. Although it is averred that the same has been filled and occupied with buildings and is otherwise obstructed, it is nowhere claimed or alleged that the city has placed the buildings or other obstructions on the ground, or has had anything whatsoever to do with their being put there. The act complained of, and for which compensation is demanded, is that performed by the council and the mayor, when the former passed and the latter approved the...