Taylor v. City of St. Paul
| Decision Date | 29 June 1878 |
| Citation | 25 Minn. 129 |
| Parties | Adeline Taylor v. City of St. Paul |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Ramsey county, Simons, J., presiding, overruling a demurrer to the complaint.
Order affirmed.
W. P Murray, for appellant.
Brisbin & Spooner, for respondent.
Plaintiff is owner of a certain lot with buildings thereon situate on the north side of Fifth street, in the city of St. Paul. In 1872, the city changed the theretofore established grade of the street, where the same borders upon the plaintiff's premises, and established a new grade there, the line of which was about ten feet lower than the line of the former grade. Immediately after the change of grade, the city entered upon the street where it bordered upon plaintiff's premises, and then and there excavated and removed the earth and rock, to the depth of about ten feet below said former grade. For the damages resulting from these acts the plaintiff brings this action.
The liability of the city upon the state of facts thus set up in the complaint was upheld in McCarthy v. City of St. Paul, 22 Minn. 527, and is not denied. But in behalf of the city, it is insisted that since the decision in the McCarthy case, a statute (Sp. Laws 1877, c. 23, § 9) has stepped in, and taken away the remedy by the special course of proceedings prescribed in Sp. Laws 1874, c. 1, subc. 7, tit. 3, p. 81. Under this course of proceeding, after a change of grade has been finally determined, the matter of the assessment of damages and benefits is referred by the common council to the board of public works. Upon receiving the order, the board are required to make the assessment, and they are authorized to proceed to confirm the same, having first given notice, by publication, of the completion of the assessment, and of the time and place at which they will meet to hear objections to it, etc. Within twenty days after the first publication of the notice, any party aggrieved by the assessment of damages may, under certain regulations and restrictions, appeal to the district court.
In the case at bar, it appears from the complaint that the change of grade was made in 1872, and that the excavation, etc complained of was done immediately thereafter -- some four or five years before the passage of the act of 1877, above cited. It was the duty of the city authorities to cause the assessment of...
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