McKusick v. City of Stillwater
| Decision Date | 07 October 1890 |
| Citation | 46 N.W. 769,44 Minn. 372 |
| Parties | Minerva McKusick v. City of Stillwater |
| Court | Minnesota Supreme Court |
Plaintiff brought this action in the district court for Washington county, to restrain the defendant from entering upon her land in the city of Stillwater, to carry out the street improvement described in the opinion. The defendant appeals from the judgment entered on the report of Homer C Eller, Esq., referee, before whom the action was tried.
Judgment reversed.
Searles & Gail, for appellant.
Fayette Marsh, for respondent.
The plaintiff is the owner of the lots 5, 7, 9, 11, and 13, in block 6, in Thompson, Parker & Mower's second addition to Stillwater, having a frontage east on Martha street of 243 feet. On the 19th day of June in the year 1888, the common council of the city adopted a resolution fixing the grade of Martha street, and also a separate resolution directing that the same street be laid out, graded, widened, condemned, and opened as follows, viz., from the north line of Myrtle street to the south line of Mulberry street; and the city engineer of said city was directed to make and present to said city council a plat and survey of such improvement, showing the character, course, and extent of the same, and the property necessary to be taken or interfered with, the names of the owners of each parcel, and such a statement as might, in his opinion, be proper to explain such plat and survey, and the character and extent of the proposed improvement, exclusive of the cost of condemning private property. And thereafter on or about the 7th day of August, 1888, the city engineer reported to the city council a plat and survey as directed by such resolution, which plat and survey contemplated the widening of the street in question for a portion of the distance between Mulberry and Myrtle streets, including that upon which plaintiff's lots above described front, and also for the taking of a portion of the same, with other property, for the purpose of providing slopes deemed necessary for grading Martha street. The city council duly approved, accepted, and adopted the report of the engineer, including the plat and survey so made by him, and thereupon appointed three freeholders, qualified electors of the city, no two of whom resided in the same ward, as commissioners to view the premises, and award the amount of damages and compensation to be paid to the owners of the property to be taken or injured by such improvement, and also to assess the amount of such damages and compensation upon the lots and property to be benefited by such improvement, in proportion to the benefits to be received by each of the parcels, without regard to the cash valuation, etc., as prescribed by the charter. The commissioners so appointed thereupon took the prescribed oath, and after causing notice to be given by two publications in the Daily Gazette, a newspaper printed and published in the city of Stillwater, as provided by the charter, that said plat and survey were on file in the office of the city clerk for examination of all persons interested; that they would, on the 27th day of August, 1888, meet at the junction of Myrtle and Mulberry streets in said city, and then and there view the property to be taken and interfered with for the purposes of such improvement, and ascertain and award therefor compensation and damages, and view the premises to be benefited by such improvement, and assess thereon, in proportion to benefits, the amount required to pay the damages and costs necessary to the making of such improvement. In pursuance of such notice they met and proceeded to perform the acts therein mentioned, and duly prepared a report of all their proceedings in the premises in the matter of the award of damages and assessment by them made, and on the 25th day of September, A. D. 1888, presented the same to the common council of the city, after having previously given the required notice of their purpose so to do by publication in the Daily Gazette, before mentioned. Afterwards, at a regular meeting of the council held on the 16th day of October, the award and assessment so reported were duly confirmed by vote of the council. The referee finds that the council did not, prior to the appointment of the commissioners, nor until the 8th day of November, 1888, estimate or fix the cost of making such improvement, and that, in the award and assessment so made by the commissioners, and adopted and confirmed, there was included damages and compensation for injury to private property, including that of the plaintiff, for taking a portion thereof for making slopes and fills, and there was also assessed against the abutting property the estimated benefits resulting from the laying out, grading, widening, and condemning of said street, and that no award was made to said plaintiff, or any one else, of any amount as damages or compensation for taking or interfering with her private property; but the estimated damage from such taking was offset against the amount assessed against such property as benefits resulting from such laying out, grading, widening, condemning, and opening of the street, and a final balance awarded to the city as due from each piece of property, such assessment and award being made as a single improvement. No appeal was taken by this plaintiff in such proceeding.
The facts, which are undisputed, will more clearly appear from the report itself, an extract from which is as follows: "After viewing the premises and hearing the evidence offered, the undersigned commissioners caused to be prepared a true and impartial appraisement and award of the compensation and damages to be paid each person whose property is to be taken or injured by the making of such improvement, as appears by columns headed, 'Supposed Owner and Description,' 'Lot,' 'Block,' 'Damages,' in Exhibit A, hereto attached; and where only a part of the property is to be taken or damaged by such improvement, and the remainder of the same is found by your commissioners to be benefited by such improvement, the undersigned, as such commissioners, in considering and awarding such compensation and damages, have also considered, estimated, and offset the benefits which will accrue to the owner of said parcel of property in respect to the remainder of the same property; and have awarded him damages, only for the excess of the compensation or damages over and above such benefits, as appears by columns headed 'Balance Due Owner,' in said Exhibit A, hereto attached. And the undersigned, as such commissioners, have assessed the amount of such compensation and damages so awarded, together with the cost and expenses of making such improvements, upon the land and property benefited by such proposed improvement, and in proportion to such benefit. But in no case have the undersigned, as such commissioners, assessed any property exceeding the actual benefit to the lot or parcel assessed after deducting therefrom any damages or injury to such parcels which are less than the benefit, but have only assessed the excess. Such assessment appearing in columns headed, 'Supposed Owners and Description,' 'Lot,' 'Block,' 'Benefits,' in said Exhibit A. And the undersigned hereto attach, as a part and portion of their report, marked 'Exhibit A,' the said appraisement and a ward of damages and assessments of benefits, and beg further to report that the whole amount of such compensation and damages, together with the cost of making such improvement, does not exceed the actual benefit to the specific property subject to assessment. And the list hereto attached, being Exhibit A, contains the assessment made by the undersigned, as such commissioners, of the compensation, damages, and costs against the property herein mentioned, or so much of said compensation, damages, and costs as do not exceed the actual benefits of the property so assessed:
if known.
of Land.
Bal. Due
Bal. to
if known.
The referee held the assessment void, for the reason that the proceedings for the condemnation of abutting property for slopes could not be so blended with those for the assessment of benefits for the entire improvement that the latter could be offset generally against the former, and an assessment made ratably against the specific parcels affected by the joint proceedings.
The provisions of the charter in respect to the duties of the commissioners in the premises, as found in section 6 c. 10, of the charter, are as follows, (Sp. Laws 1887, c. 6, § 37, p. 311:) ...
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