State ex rel. Bass v. MacDonald
| Decision Date | 01 April 1880 |
| Citation | 4 N.W. 1107,26 Minn. 445 |
| Parties | State of Minnesota. ex rel. Edgar H. Bass v. John L. Macdonald |
| Court | Minnesota Supreme Court |
On March 15, 1879, pursuant to due notice, a petition was presented to the respondent, as judge of the 8th district praying that a legal highway might be laid out, located and opened through Carver and Scott counties, in that district and extending into the county of Hennepin, in the 4th judicial district. After designating the initial point of the proposed road, in Carver county, and its route through that county and Scott county, the road is described as running "into the town of Eden Prairie in said county of Hennepin, to connect with and ending on the road leading northerly from the ferry across said (Minnesota) river, known as Baldwin's ferry, at a point on said road 100 feet north of said river." The petition purported to be signed by forty-three resident legal voters of the counties of Scott and Carver, and three resident legal voters of the county of Hennepin. On the same day the respondent made an order granting the prayer of the petition, and appointing commissioners to lay out a highway according to such prayer and authorizing and directing such commissioners to do all things necessary to locate and lay out such highway. The commissioners duly qualified, and thereupon proceeded to lay out a highway over a route somewhat different from that described in the petition, and made report of their proceedings. Upon the filing of the report, the petitioners applied to the respondent for an order resubmitting the matter to the commissioners, and requiring them to lay out a road as prayed for in the original petition and directed by the original order. On this application the respondent made an order requiring the commissioners and all persons interested in the road to show cause before him at his chambers, on May 6, 1879, why the application should not be granted.
The relator, the owner of a piece of land through which the proposed road would run, whether as prayed for in the petition or as actually laid out by the commissioners thereupon obtained from this court a writ of prohibition forbidding further proceedings by respondent on the order to show cause. In his application for the writ the relator alleged, (1,) that the respondent, as a resident and tax-payer in Scott county, was by such interest disqualified from acting in the matter; (2) that respondent never acquired jurisdiction of the proceeding, and (3) that if jurisdiction had ever been acquired, it had been exhausted by the proceedings already had. On the return of the writ the respondent moved that the proceeding be dismissed.
Motion to dismiss the writ granted.
L. M. Brown, for relator.
E. Southworth and Gilman & Clough, for respondent.
By Gen. St. 1878, c. 13, § 76, it is provided as follows: "Whenever a petition praying that a road be laid through two or more counties in any judicial district in this state, signed by twenty legal voters, resident in said counties, shall be presented to the judge of the district court in said district, the said judge is hereby authorized to appoint three commissioners, whose duty it shall be to meet at such times and places as may be necessary, and to immediately proceed to lay out a road as directed by the judge, in accordance with the prayer of the petition: provided, that no road shall be ordered by any judge to extend more than six miles outside the judicial district in which the application is made, and such road shall be extended beyond the district only for the purpose of commencing or ending at some village or public road."
Notices of the presentation of such petition must be posted at least thirty days prior thereto, in at least three public places in the judicial district, and in each county through which the road is to to pass. Id. § 27.
Section 78 prescribes the duties of the commissioners, etc.; provides for an apportionment of the expenses and damages incurred in laying out the road among the several counties through which it runs, and declares that the proportion each shall bear shall be determined by the court, and be entirely in its discretion.
Section 80 enacts that
Section 82 authorizes any person feeling aggrieved by the appraisal of the commissioners to demand a jury trial to determine the amount of his damages, by filing with the clerk of the county wherein the report is filed a written demand therefor, "within thirty days after the entry of the order of the court confirming the report of the commissioners."
In view of these statutory provisions -- which must be construed together, as they all relate to the same subject -- it is obvious that the special proceeding which they authorize, for laying out a road of the kind therein mentioned, was intended to be placed under the judicial authority, control and supervision of the district court. It is instituted upon a petition to the judge of the district court of the judicial district wherein the proposed road is sought to be located and upon a notice advising all parties having any interest therein, either for or against the road,...
To continue reading
Request your trial