Horn v. City of Minneapolis
| Decision Date | 26 December 1930 |
| Docket Number | No. 28166.,28166. |
| Citation | 234 N.W. 289,182 Minn. 172 |
| Parties | HORN v. CITY OF MINNEAPOLIS et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Gunnar H. Nordbye, Judge.
Action by H. Raymond Horn against the City of Minneapolis. From the judgment, plaintiff appeals.
Reversed, with directions.
Shearer, Byard & Trogner, of Minneapolis, for appellant.
Thompson, Hessian & Fletcher and John J. McKasy, all of Minneapolis, for respondent.
Plaintiff appealed from a judgment. In 1889 plaintiff's grantor conveyed certain lands in the city of Minneapolis to the city for park and parkway purposes. A portion of the consideration was paid by exempting plaintiff's land adjacent to the lands conveyed from assessments to the extent of $48,000. The lands conveyed became a part of Minnehaha parkway, which then reached from Lake Harriet to Lyndale avenue.
In 1921, Lynnhurst Field, in the neighborhood of plaintiff's property, was acquired, and plaintiff's property was assessed therefor in the sum of $3,192.30, of which plaintiff paid $1,265.91.
In 1922-1923 Minnehaha parkway was improved and extended from Lyndale avenue to Minnehaha Falls, and plaintiff's property was assessed $3,050.50, of which he has paid $830.40.
In 1926, Lynnhurst Field was improved at a cost of about $100,000, and plaintiff's property was assessed in the sum of $5,969.
On May 18, 1927, that portion of the assessment for $3050.50 remaining unpaid for the improvement on Minnehaha parkway was annulled by the city authorities because of the holding of this court in Hunter v. City of Minneapolis, 171 Minn. 310, 213 N. W. 916.
This action is to recover money paid upon its assessments as hereinbefore mentioned, and to cancel the assessments. The trial court denied plaintiff any relief except judgment for $107.88, being a portion of the assessment for Minnehaha parkway paid involuntarily by plaintiff in order to record deeds.
1. Such a provision for exemption from assessments means that the consideration is to the extent named not to be paid in money, but by a surrender of the right to assess to that extent. It is helpful to the city in that it does not have to raise the cash. Cases of this character have heretofore been before this court. State ex rel. v. District Court, 83 Minn. 170, 86 N. W. 15; In re Lake of the Isles Park, 152 Minn. 29, 188 N. W. 54; In re Lake of the Isles Park, 152 Minn. 39, 188 N. W. 59; McCullough v. Board of Park Commissioners, 157 Minn. 278, 195 N. W. 1013; In re Improvement of Calhoun Boulevard, 167 Minn. 251, 208 N. W. 1000, and Id., 167 Minn. 258, 209 N. W. 939; In re Improvement of Minnehaha Parkway, 167 Minn. 253, 208 N. W. 998; Hunter v. City of Minneapolis, 171 Minn. 309, 213 N. W. 916; Haas v. Board of Park Com'rs of City of Minneapolis, 167 Minn. 251, 208 N. W. 1000.
In the deed and as a part of the consideration therefor the city agreed: To open, construct, and forever maintain a park or parkway and boulevard upon both sides of and abutting upon Minnehaha creek; to have a roadway on each side of the creek 40 feet wide; to construct and maintain a bridge across the creek at Humboldt avenue; to locate a driveway on said parkway by October 1, 1889; and to complete the project by October 1, 1890. There were certain restrictions not here important.
Paragraphs 10 and 11 of the deed read:
None of the parties to the transaction are now alive, so we must put ourselves so far as possible in the position of the parties and construe the language used to ascertain the extent of the exemptions which the parties had in mind. Paragraph 10 which creates the exemption uses the word "parkway" only. Another deed of the same character dated the same day, but given by one Fogg to the city, was almost in the same terms, but in paragraph 10 therein the words "park and parkway" were used.
We are not convinced that the parties then visioned the million dollar extension of Minnehaha parkway to Minnehaha Falls. Their project was then a comparatively small one. Plaintiff's assessment thereon was $3,192.30. It is difficult to see how the parties could anticipate the eventual payment of the $48,000 by assessments solely to be applied to this project, which was the only one mentioned in the deed. There were no other parkways near the land conveyed. There are no others now. This particular parkway was by the terms of the deed to be completed by October 1, 1890. It was therefore impossible to absorb the $48,000 for assessments on the land of the grantor alone.
In order to construe paragraph 10 we must look to the whole instrument. Paragraph 11 commands attention. The city claims that parks are not included because not mentioned in paragraph 10, but why did the parties use "parks" and "park improvements" in paragraph 11? Why provide that the appraisers "shall determine and specify the amount, if any, to which said exempted lands would be liable" when "parks" and "park improvements" are involved? Why deduct "from said $48,000 until consumed before the lands * * * shall be liable for taxes or assessments for benefits for park or parkway purposes"? The language is plain. It must have reference to the determination of assessments chargeable against the $48,000. In one portion of the paragraph the words "park improvements" are used wholly disconnected from "parkways." Why would the parties intend to limit such a large exemption to "parkways"? There was as much reason to include parks as parkways, and no good reason appears why the parties should exclude the one and include the other. It was natural for the grantor to prefer to include both. The city consented to...
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