Obst v. Covell (In re Condemnation of Lands in Ramsey Cnty.)

• Decision Date: 15 July 1904
• Citation: 100 N.W. 650,93 Minn. 30
• Parties: In re CONDEMNATION OF LANDS IN RAMSEY COUNTY. OBST v. COVELL et al.
• Court: Minnesota Supreme Court

93 Minn. 30

100 N.W. 650

In re CONDEMNATION OF LANDS IN RAMSEY COUNTY.OBST

v.COVELL et al.

Supreme Court of Minnesota.

July 15, 1904.

Appeal from District Court, Ramsey County; William L. Kelly, Judge.

In the matter of proceedings to condemn certain lands in Ramsey county. From a report allowing a certain amount for damages to certain land to Frank J. Obst, Charles L. Covell, Andrew E. Johnson, and Arne L. Alness appeal. Affirmed.

Syllabus by the Court

1. In proceedings to condemn land for a railroad right of way, or other public purpose, persons owning the land taken, or having a paramount lien thereon, at the time title to the easement becomes vested in the company, are entitled to the damages assessed therefor.

2. If an owner of such land at the time proceedings are commenced and damages assessed subsequently parts with his title, or it becomes extinguished or transferred by operation of law before the title of the company becomes vested by such proceedings, and the damages as assessed are paid, the right to damages passes, as an incident to the land, to the succeeding owner.

3. The title of the company does not, in such proceedings, become vested until the completion thereof, payment of damages, and entry into possession by the company.

4. Certain questions argued by counsel in the briefs held not to have been presented to the trial court for decision, and not properly before this court for review. Oscar Hallam and Henry C. James, for appellants.

William G. White and Stringer & Seymour, for respondents.

BROWN, J.

Proceedings were duly commenced, under the General Statutes, by the St. Paul Terminal & Transfer Company, a corporation created under the laws of this state, to acquire the right of way across certain property in West St. Paul, Ramsey county. Commissioners were appointed to assess damages of the owners of the property sought to be condemned and taken, who reported, as to the land involved in this appeal, that the entire damages thereto were the sum of $255, which they apportioned among various claimants as follows:

‘To the state of Minnesota, tax liens $24 53

The National Bond & Security Co., tax liens 29 30

Charles L. Covell, tax title 18 11

United States Saving & Loan Ass'n, tax title 48 77

Arne L. Alness, tax title 130 73

‘The rest and residue of said damages, amounting to $3.56, unto Andrew E Johnson.’

Notice of filing the report of the commissioners was duly given to the interested parties, and Covell and Johnson, to whom awards were made, appealed therefrom to the district court. The report of the commissioners has never been confirmed by the court, nor has the company ever paid the damages assessed to the parties named therein, except the amount awarded to the state. The appeals taken by Covell and Johnson are still pending and undetermined. Covell had a tax title against the property. Just what interest Johnson had, does not appear. Alness, named in the report, and to whom $130.73 was awarded, also held a tax title. Subsequent to the report of the commissioners and the appeals taken by Covell and Johnson, the National Bond & Security Company, to which $29.30 was awarded as the holder of a tax title against the property, assigned its tax certificate to the petitioner, Obst. The latter thereafter caused the usual notice of expiration of redemption to be given. No redemption was made, and he acquired and became vested with the absolute title and fee to the land. Thereafter he made application to the court, setting forth his title and ownership, the manner in which he acquired it, and praying that the terminal and transfer company be ordered and directed to pay to him the entire amount awarded as damages to the property, except the amount paid to the state. Covell, Johnson, and Alness appeared and opposed the application. After hearing and due consideration, the court made an order to the effect that Obst was entitled to judgment as demanded by him, and directing the terminal and transfer company to pay him the full sum of $255 awarded by the commissioners, less the sum of $24.53, theretofore paid to the state. Judgment was entered accordingly, from which Covell, Johnson, and Alness appealed.

Two principal questions are presented by the assignments of error. It is contended by appellants that the judgment appealed from should be reversed (1) For the reason, as they urge, that the description of the property as contained in the Obst certificate of tax sale and notice of expiration of redemption is insufficient, that the notice of expiration of redemption fails to state the correct amount required to redeem, and that such notice was not served as required by statute, in consequence of which Obst has no title to the land paramount to the right and title of appellants, and is not entitled to the entire award of damages; (2) that the award of the commissioners is final and conclusive between the parties, and unalterably determines their rights.

1. The first question above mentioned is not properly before us. It was not raised in the court below, and cannot be considered. Obst introduced in evidence on the trial the certificate of tax sale under which he claims, the receipt for delinquent taxes, and notice of expiration of redemption, with proof of service, to which counsel for Covell, Johnson, and Alness objected on the ground that the instruments were incompetent, irrelevant, and immaterial, coupled with which objection was the statement that the contention of the objectors was that in this proceeding the rights of the parties were all fixed and determined by the award of the commissioners. No suggestion was made to the court that counsel desired to raise any question as to the sufficiency of the title relied upon by Obst, and, by the specific objection made, the trial court was led to believe that the controversy involved only the question whether the award of the commissioners was final, and whether the damages should be paid in accordance therewith, notwithstanding the fact that Obst had subsequently acquired title to the land. No specific findings were made or requested upon this feature of the...