Rakowsky v. City of Duluth

• Decision Date: 22 July 1890
• Citation: 44 Minn. 188
• Parties: MARY RAKOWSKY <I>vs.</I> CITY OF DULUTH.
• Court: Minnesota Supreme Court

Page 188

44 Minn. 188

MARY RAKOWSKYvs.

CITY OF DULUTH.

Supreme Court of Minnesota.

July 22, 1890.

Action brought in the district court for St. Louis county, to recover $2,300 for injuries to plaintiff's lot resulting from a change of grade of the street in front of it. At the trial, before Stearns, J., a dismissal was ordered at the close of the evidence for plaintiff. A new trial was refused, and the plaintiff appealed.

Edson & Hanks, for appellant.

S. D. Allen, for respondent.

COLLINS, J.

In the year 1883 the council of the then village of Duluth established a grade line for Superior street, on which appellant's lots were located, and thereafter the street in front of said lots, upon which she had erected a building, was properly graded. In 1887, the village having been absorbed by the incorporation of the city in the mean time, the grade line as established by the village was changed and lowered about two feet by the city authorities in front of appellant's premises. The street having been brought to the re-established grade line, appellant commenced this action to recover damages. If there existed no statutory prohibition, it is conceded that the act of the city authorities in changing and re-establishing the grade line, and their further action whereby the street was actually lowered two feet in front of appellant's lots, was lawful, and that she cannot recover; for the owner of property adjacent to a public street is not entitled to a remedy for injuries resulting from the exercise, in a proper manner, of lawful authority in establishing or changing the grade of a street. Henderson v. City of Minneapolis, 32 Minn. 319, (20 N. W. Rep. 322.) It is the contention of the appellant, however, that the inhibition is found in the respondent's charter, and that the municipal authorities were expressly prohibited by the terms of section 3, c. 4, of the constituent act, (Sp. Laws 1887, c. 2,) from altering or changing a grade line previously established by the village council.

The section in question, which we are required to construe and on which appellant's case depends, reads as follows: "Sec. 3. Said board shall, subject to the approval of the common council, establish a system of grades for all streets, avenues, and alleys within said corporate limits, for which grades have not been heretofore established; and when once established no grade shall be changed except by resolution of the common council, passed by a two-thirds vote of all the aldermen. Said board shall establish a system of sewers for the entire city, and cause to be designated on said plats the streets, avenues, and alleys through which the same are to be constructed; the same to be done in such manner so as not to conflict with or change the sewers which are already established, laid out, and in operation; and no streets shall be paved until the sewer to be constructed through the same shall be completed so far as the pavement is to extend." (Sp. Laws 1887, p. 69.) The claim is that by using the words, "for which grades have not been heretofore established," when empowering the board of public works to establish a...