Kelly v. Minneapolis City, 8829.

• Decision Date: 15 May 1894
• Docket Number: No. 8829.,8829.
• Citation: 57 Minn. 294
• Parties: ANTHONY KELLY <I>et al.</I> <I>vs.</I> MINNEAPOLIS CITY <I>et al.</I>
• Court: Minnesota Supreme Court

57 Minn. 294

ANTHONY KELLY et al.vs.

MINNEAPOLIS CITY et al.

No. 8829.

Supreme Court of Minnesota.

Submitted on briefs May 4, 1894.

Affirmed May 15, 1894.

Appeal by plaintiffs, Anthony Kelly, Joel B. Bassett, John C. Reno, William H. Holt and Martin Buerfening, from an order of the District Court of Hennepin County, Charles B. Elliott, J., made March 17, 1894, denying their motion for a new trial.

Action to restrain the defendants, the City of Minneapolis and Charles F. Haney, City Clerk, from proceeding with an assessment upon plaintiffs' property to pay damages awarded to certain other parties for change in the grade of Fifth street north in that city. After trial the court made findings and ordered judgment for defendants. Plaintiffs moved for a new trial. Being denied they appeal.

Kitchel, Cohen & Shaw, for appellants.

David F. Simpson and L. A. Dunn, for respondents.

CANTY, J.

This is an appeal from an order denying plaintiffs' motion for a new trial in an action brought to enjoin the city of Minneapolis from assessing and collecting a special assessment of taxes on the property of the plaintiffs for benefits to their property in changing the grade of Fifth street north in said city, where it approaches and crosses over the tracks of the Great Northern Railway Company (formerly St. Paul, Minneapolis & Manitoba Railway Company) and the Minneapolis & St. Louis Railway Company. This street was laid out as a public street before these railway companies acquired their rights of way. Their charters each provide, in substance, that the railway company shall have the right to construct its tracks across any such street, but that it shall restore the street to such condition and state of repair as not to impair or interfere with its free and proper use. This and other parallel streets crossed these tracks formerly on grade, and the city instituted mandamus proceedings to compel these companies to lower their tracks, and carry these streets over them. The construction of these charter provisions and the history of these proceedings may be found in the cases of State ex rel. v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N. W. 3;) Id., 38 Minn. 246, (36 N. W. 870;) and State ex rel. v. Minneapolis & St. L. Ry. Co., 39 Minn. 219, (39 N. W. 153.) But after the last of these cases was decided, and while it was pending in the United States Supreme Court on writ of error, it was stipulated by all the parties to it that such writ should be dismissed, and the final judgment in the District Court in that proceeding should be modified so that the tracks should be lowered less, and the grade of the street at the crossings and approaches accordingly raised more, and the approaches made consequently longer. The city further stipulated that it "assumes all liabilities for damages to the property of adjoining owners under the provisions of its charter, by reason of the change of the grade" in the streets "made necessary by the building of the approaches to the bridges on said streets, the same as though the said city were itself doing the actual work of constructing said approaches in accordance with said change of grade." The final judgment was modified pursuant to this stipulation, and the railroad companies proceeded accordingly, lowered their tracks, and built the bridges over them, and the approaches to these bridges at each end of the same. These approaches on Fifth street were partly filled in prior to September 1, 1891, when the city council voted to change the grade of Fifth street to the grade stipulated, and the approaches were afterwards completed by the railroad companies to conform to this grade. By an amendment, Sp. Laws 1885, ch. 5, to the city charter it is provided that when any permanent building has been constructed abutting on any street, after the grade has been once established, and the city council afterwards votes to change such grade, the owner of such building may, within twenty days thereafter, file objections stating his claim for damages; that unless the city council, within a certain time thereafter, reconsiders its vote, it shall appoint five freeholders to ascertain the amount of damages to such buildings, caused by reason of such change of grade, and award compensation therefor, and also assess the amount of such compensation upon the property to be benefited by such change of grade, and report all of the same to the city council, who may confirm the same, or refer it back to the same or another commission.

Such claims were filed for the change in grade of Fifth street, and such a commission was appointed. They assessed the damages to the permanent buildings thus damaged in the sum of $20,000 in the aggregate, and awarded that amount as compensation to the owners of such buildings, and assessed or levied the amount so awarded against the lands and premises of these plaintiffs and others as benefits which they would receive by such change in grade, and hence this suit.

1. On the authority of State ex rel. v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N. W. 3,) appellants claim that the obligation to pay these damages rested on the railway companies. That case does not so hold. It holds that it was their duty to restore the crossing, and where, to accomplish this, it was necessary to build approaches, it was their duty to build them; and if, in the prosecution of the work, it became necessary to encroach upon private property, that they had the power of eminent domain, and should, at their own expense, acquire the rights necessary in order to restore the crossing.

Neither are the cases of Robinson v. Great Northern Ry. Co., 48 Minn. 445, (51 N. W. 384,) and Parker v. Truesdale, 54 Minn. 241, (55 N. W. 901,) decisive of the question of the liability of the property benefited to pay the damages here awarded, as claimed by respondent, and held by the court below. In those cases the owners of property abutting on the approaches brought suit against the railroad companies for damages resulting from the change of grade. As to those cases, it is only necessary to suggest that the right to damages for a change of the grade of a street is purely a creature of statute, and the mode of procedure provided by the statute for the recovery of the damages is exclusive. The railroad company, in doing the work of making the change of grade, was acting for the city, and under its authority and rights. Then it necessarily follows that, if such abutting owner could not maintain a suit against the city for damages, he could not against the railroad company. He could only follow the exclusive remedy given him by the statute. But these plaintiffs are not in that position. They do not stand upon the statute for their rights, while repudiating it for their remedy; they do not stand upon or claim under this statute at all.

We are of the opinion that the railroad companies were not primarily liable for the damages to abutting owners resulting from the change of grade of the street. The...