Swenson v. Bd. of Sup'rs of Hallock

• Decision Date: 09 June 1905
• Citation: 95 Minn. 161,103 N.W. 895
• Parties: SWENSON v. BOARD OF SUP'RS OF TOWN OF HALLOCK.
• Court: Minnesota Supreme Court

95 Minn. 161

103 N.W. 895

SWENSON

v.BOARD OF SUP'RS OF TOWN OF HALLOCK.

Supreme Court of Minnesota.

June 9, 1905.

Appeal from District Court, Kittson County; Andrew Grindeland, Judge.

Action by J. A. Swenson against the board of supervisors of the town of Hallock. Judgment for defendant. From an order denying a new trial, plaintiff appeals. Reversed.

Syllabus by the Court

1. Where one part of a tract of land is taken for a rural highway, benefits which may be off-set against the value of the land taken, and damages to the part remaining in the original owner, must be affirmatively shown to be special, not general, actual, not constructive, certain and proximate, and not contingent or remote.

2. Drainage of land not taken for that purpose may be such a special, actual, and proximate benefit; but proof of a local custom of a town to improve roads as rapidly as possible, and judicial notice of a general custom to construct roads so as to afford some drainage, is not sufficient evidence to establish such a benefit. P. H. Konzen, H. Steenerson, and Charles Loring, for appellant.

Yetter & Blethen, for respondent.

JAGGARD, J.

This is an appeal from an order denying plaintiff's motion for a new trial in a case wherein the plaintiff appealed to the district court from an order of the board of supervisors of the town of Hallock laying out a road over the plaintiff's land, and wherein there was an award assessing the benefits as equal to the damages. Among other grounds of benefit was the one placed in controversy by this appeal, namely, that, if the road was graded and ditched, it would drain land of plaintiff. The court charged the jury fully and distinctly that the only benefits which they could consider were special benefits-excluding from consideration the general advantages which the owner would enjoy in common with the rest of the community-and that, if they found from the evidence that there would be a probability that this proposed road would be graded by the town in such a way as to drain the plaintiff's land, then this item of drainage should be taken into consideration in arriving at the special benefits; otherwise not.

It is notorious that assessments for benefits in local assessment cases in cities have resulted in grossest injustice in innumerable cases, and often in confiscation. It is a settled rule of this court that, so far as may be, this wrong shall not be extended to rural districts. As Mr. Justice Brown said in Sperry v. Flygare, 80 Minn. 325, 326, 83 N. W. 177, 178,49 L. R. A. 757, 81 Am. St. Rep. 261: ‘Owners of agricultural lands have hardships quite heavy enough to bear, and if any reasons exist for thrusting upon them additional burdens incident to the ‘local improvement’ system of taxation, as practiced and enforced in cities, they are not apparent to the casual observer. * * * It is * * * reasonable to require the benefited city property to pay the expense of the improvement, while it would not be reasonable or just or fair to require the farms along the line of a country road to pay the entire cost and expense of opening and laying the same out.' Accordingly no assessment of benefit for a rural highway will be sustained wherein the benefits are general, as distinguished from special (2 Lewis on Em. Domain, p. 1008, § 469), or merely constructive, as distinguished from actual. In municipal assessments it usually happens that some board or department is given large and sometimes dictatorial powers of determining benefits, whose action the courts must sustain, save in cases of exceptional injustice or outrage. State ex rel. Hughes v. District Court of Ramsey County (decided this term) 103 N. W. 744. Therefore, for example, the grading of a street which may leave adjoining property an indefinite number of feet in the air, or an indefinite number of feet below the level of the street, whereby the...