State ex rel. Merchant v. District Court for St. Louis County

• Decision Date: 06 November 1896
• Docket Number: 10,171--(53)
• Citation: 68 N.W. 860,66 Minn. 161
• Parties: STATE OF MINNESOTA ex rel. HUNTINGTON W. MERCHANT and Others v. DISTRICT COURT FOR ST. LOUIS COUNTY
• Court: Minnesota Supreme Court

68 N.W. 860

66 Minn. 161

STATE OF MINNESOTA ex rel. HUNTINGTON W. MERCHANT and Others v. DISTRICT COURT FOR ST. LOUIS COUNTY

Nos. 10,171--(53)

Supreme Court of Minnesota

November 6, 1896

Certiorari to review the action of the district court for St Louis county, Morris, J., in confirming the report and award of appraisers. Writ discharged.

Writ discharged.

Huntington W. Merchant, for relators.

Henry S. Mahon, for respondent.

OPINION

MITCHELL, J.

Certiorari to review the action of the district court in confirming the report of appraisers appointed to appraise the value of property proposed to be taken by the city of Duluth for parkway purposes, pursuant to the provisions of Sp. Laws 1889, c. 401, as amended by Sp. Laws 1891, c. 54.

Section 7 of the amendatory act, after providing for the appointment of appraisers, further provides:

"They [the appraisers] shall view said property, and hear all the legal evidence offered by the board [of park commissioners] or any person interested in the property, and shall ascertain and appraise the value thereof, and the amount of benefit or damage to the owner or owners thereof with respect to adjacent property resulting from such taking. The value of the property to be taken and the benefit or damage aforesaid, if any, shall be assessed in separate sums, and said value, adding thereto said damage, or deducting therefrom said benefit, as the case may be, shall be awarded."

The court is given power to revise, amend, or confirm this appraisement, or to order a new appraisement.

Section 8 of the same act authorizing the city to levy special assessments for the special benefit derived from the appropriation of property for park or parkway purposes, provides that, upon acquirement of title by the city, the board of park commissioners shall report to the board of public works the location and cost of the property so acquired, and

"It shall thereupon be the duty of said board of public works to determine the specific lots, tracts, and parcels of land, if any, specially benefited, and the amount of such special benefit, beyond the general benefit to all real estate in said city derived from such acquirement for park and parkway purposes, and to assess such specially benefited property therefor."

The act then provides that such assessments shall be levied, confirmed, and collected in the same manner as other assessments for local improvements. The assessment here provided for would seem to be for benefits by reason of the acquisition only of the property, for the succeeding section provides for laying other assessments for the subsequent improvement of the lands thus acquired.

In the case of each of the relators, the land taken for the proposed parkway constituted only a part of the tract owned by him, thus leaving him still the owner of the part adjacent and not taken. The report of the appraisers was, in form, in accordance with the provisions of the statute, and stated separately (1) the value of the land taken; (2) the amount of benefit to the residue of the tract; and (3) the amount of the award, which was the value of the land taken less the benefits to the residue of the tract. The relators filed objections to the confirmation of the report, and moved the court that "the amounts of benefit to the residue of the tracts a part of which is herein sought to be acquired, and each of such amounts, as to every piece and parcel, * * * be stricken from said report, in that so much of section 7 of an act * * * as provides that * * * the amount of benefit to the adjacent property shall be deducted from damages awarded, is * * * in violation of article 1, § 13, and article 9, § 1, of the constitution of the state." The court denied the motion, and confirmed the report and award as made by the appraisers. The correctness of this ruling is the only question presented.

The relators concede that where the right of eminent domain is exercised by a quasi public corporation, such as a railway company, which pays the whole cost of the improvement, or where the right is exercised by the state itself or a municipality, and the cost of the improvement is to be defrayed by general taxation, this method of assessing the compensation of the landowner does not conflict with the provision of the constitution that private property shall not be taken for public use without just compensation. This has been held by this court in a line of cases commencing with Winona & St. P. R. Co. v. Waldron, 11 Minn. 392 (515). This proceeds upon the...