Moritz v. City of St. Paul

• Decision Date: 24 February 1893
• Citation: 52 Minn. 409,54 N.W. 370
• Parties: MORITZ v CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

52 Minn. 409

54 N.W. 370

MORITZvCITY OF ST. PAUL.

Supreme Court of Minnesota.

Feb. 24, 1893.

(Syllabus by the Court.)

1. The defendant city instituted proceedings to change the established grade of a street, in accordance with its charter, upon which certain mortgaged premises abutted. An assessment of damages therefor was completed after a sale of the premises on foreclosure to the mortgagee for the full amount of the debt. No redemption was made from the foreclosure sale, and after the expiration of the time for redemption the mortgagee, who had thus become the owner, or his assignee, sued for the recovery of the damages awarded. Held that he was entitled to recover.

2. The damages awarded after the foreclosure sale became a substitute for so much of the property as was taken or appropriated for public use.

3. Charter construed as providing for an assessment of damages for injury to the property, leaving the question as to who shall be entitled to receive such damages to be determined in accordance with the general principles of law.

4. The charter providing that the city shall not take possession of the property until the money for the payment of damages shall have been collected by means of special assessments, held, that the fact that the city had actually entered upon the work of changing the grade is effectual as a waiver of its right to postpone the payment of the damages awarded until such collections shall be made. The city thus assumed an immediate responsibility.

Appeal from district court, Ramsey county; Cornish, Judge.

Action by William F. Moritz against the city of St. Paul to recover damages for changing the grade of streets on which plaintiff's land abutted. Judgment for plaintiff. From an order refusing a new trial, defendant appeals. Affirmed.

Dan. W. Lawler, for appellant.

Williams, Goodenow & Stanton, for respondent.

DICKINSON, J.

This is an action to recover from the defendant city the sum of $513.60, which had been assessed and allowed as damages for a change of the grade of two streets upon which abutted the land with respect to which such damages were allowed. In April, 1888, one Schroeder owned this land. At that time he mortgaged it to one Kirtland, and thereafter (July, 1888) he sold and conveyed it to Gehan. In proceedings for the foreclosure of the mortgage the land was sold February 19, 1890; the mortgagee, Kirtland, being the purchaser, and the amount bid therefor being the full amount of the mortgage debt. No redemption was ever made, and, upon or after the expiration of the period for redemption, Kirtland sold and conveyed the land to this plaintiff, transferring also to him the right of the former in respect to the money here sought to be recovered. Prior to the foreclosure sale, proceedings had been instituted for a change of the grade of the streets; and the common council of the city had adopted a resolution that the grade be changed, and had referred the matter to the board of public works, pursuant to the charter, for an assessment of damages. The assessment was not made by that board until March 12, 1890, (after the foreclosure sale,) and it was not completed by confirmation until April 7, 1890. Upon trial in the district court the plaintiff was held entitled to recover the damages which had been awarded for the change of grade. The defendant appeals from an order refusing a new trial.

It is first contended on the part of the defendant that the interest of the mortgagee, Kirtland, in the property was not such as to entitle her or the plaintiff, who has succeeded to her rights, to recover the damages thus awarded. We hold to the contrary, and in accordance with the decision of the district court. The charter of the city does not permit any change of an established street grade to be consummated and take effect except upon the condition precedent of the making and confirmation of an assessment of the damages which may result therefrom, and it authorizes the common council to annul any order for a change of grade at any time prior to the confirmation of such assessment. Sp. Laws 1887, c. 7, p. 366. Hence the resolution of the common council prior to the foreclosure sale, that the grade be changed did not affect any change, nor did it alter the situation of the property. No change of grade was effected, nor did it become certain that any change would be made, nor did the owner of the land, or any one interested therein, become entitled to receive the damages in question until the assessment had been confirmed, which was after the foreclosure sale. The mortgagee became the purchaser on foreclosure subject to the right of redemption, taking the property as it existed at that...