Town of Rost v. O'Connor

• Citation: 176 N.W. 166,145 Minn. 81
• Decision Date: 06 February 1920
• Docket Number: No. 21559.,21559.
• Parties: TOWN OF ROST v. O'CONNOR.
• Court: Minnesota Supreme Court

145 Minn. 81

176 N.W. 166

TOWN OF ROST

v.O'CONNOR.

No. 21559.

Supreme Court of Minnesota.

Feb. 6, 1920.

Appeal from District Court, Jackson County; E. C. Dean, Judge.

Action by Town of Rost against John O'Connor. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

Hallam and Dibell, JJ., dissenting.

Syllabus by the Court

The title of the owner of land abutting on a public highway extends to the center of the road and includes all trees standing and growing therein, of which he can be deprived for the public use by due process of law only.

Section 2560, Gen. St. 1913, in so far as it authorizes local highway officials, without notice to the abutting landowner or opportunity by him to be heard, as a penalty for his failure to pay the expense of cutting down trees thereby authorized to be removed from the highway, to make an ex parte sale of the trees and appropriate the proceeds to the use of the municipality, even though the amount may greatly exceed such expense, is unconstitutional and void as an attempt to deprive the owner of his property without due process of law. F. B. Faber, of Jackson, for appellant.

E. H. Nicholas, of Jackson, for respondent.

BROWN, C. J.

The town board of supervisors of the town of Rost, Jackson county, on July 13, 1914, acting under the authority conferred by chapter 235, § 73, General Laws 1913 (G. S. 1913, § 2560), made and promulgated an ex parte order to the effect that the public interest required the removal of certain trees standing in a highway as it extended along the farm of defendant. Defendant was thereafter notified of the order by ‘registered mail’ and directed to ‘cut down the trees all take them off the highway within 90 days of this notice.’ If defendant received the notice, he gave it no attention, and did not comply with its command. Thereafter, on the 12th and 13th days of November, the road overseer, acting on the orders of the town board proceeded to the premises, and with the assistance of a crew of men cut down the trees embraced within the order, about 200 in number, ranging in size from 10 to 30 inches in circumference and 30 feet in height. They were not then removed from the highway, and on December 21st defendant by ‘registered mail’ was notified that the cost and expense of cutting the trees was $42, and that he might claim them by paying the amount thereof to the town treasurer within 60 days. If defendant received that notice, he paid no attention to it, and subsequent to the date thereof took possession of the trees and removed them from the highway, converting them to his own use.

The town thereafter brought this action to recover the cost and expense of cutting the trees on the theory that by taking them away defendant by necessary implication obligated himself to reimburse the town to the amount of the expense stated. The action was commenced in justice court, thence appealed to the district court, where plaintiff had judgment for the amount claimed. Defendant appealed.

The only question presented by the assignments of error which we deem necessary to consider is the constitutionality of the statute under which the proceedings were had by the town board. If the statute be invalid, and that is our conclusion, there is an end of the case, and plaintiff cannot recover for its asserted right of action rests thereon. All other questions are therefore of no material importance, and they are passed without statement or comment.

The section of the statute involved (section 2560, G. S. 1913) is composed of three subdivisions, the first of which confers upon the town board authority to order the cutting down of trees and hedges within highway limits whenever they shall determine that public interests require such action, subject, however, to the following restrictions, namely:

‘Provided, that trees, other than willows, shall not be so cut down unless the center of such trees is more than six (6) feet from the side of any road as established by statutory proceedings or dedicated specifically to public use: Provided, such trees or hedges, or either of them, interfere with keeping the surface of the road in good order, or cause the snow to drift onto or accumulate upon said road in quantities that materially obstruct travel.’

Subdivision 2 provides that when the town board shall determine to take the action thus authorized notice shall be given the owner of the abutting land to cut down the trees within 90 days from such notice. It further provides that, if the abutting owner fails or refuses to comply with the order, the town board may cause the trees to be cut down ‘at the expense of the town.’ It also provides that the timber and wood of the trees shall belong to the abutting landowners:

‘Provided they pay the expense of cutting down said trees or hedges and remove the same from the roadside within sixty (60) days. If such timber or wood is not removed within said time, the town board shall sell the same or destroy it if it cannot be sold at a profit, and if sold, pay the proceeds thereof into the road and bridge fund of said town.’

The third subdivision is unimportant. It simply authorizes the use of town funds to carry out any particular proceeding conducted under subdivisions 1 and 2.

The contention of defendant is that the statute violates section 7 of article 1 of the state Constitution, in that it makes no provision for notice to interested landowners, or otherwise secure to them an opportunity to be heard upon any of the questions involved in the proceeding, and that it violates section 13 of article 1 of the Constitution in that it authorizes the taking of private property for public use without compensation.

It is fundamental that the right of private ownership of property cannot be abridged or impaired in the interests of the public except by due process of law and the payment of just compensation. Due process of law means notice and opportunity to be heard at some stage of the proceeding in which it is proposed to so appropriate private property, and statutes authorizing a taking or appropriation without are null and void.

In this state the title of the owner of land extends to the center of a street or highway abutting thereon, and includes all trees, sand, gravel, and other appurtenances situated or being upon or within the same, subject to the general public right to take and use any thereof as may be necessary in the improvement of the highway for public use. That is settled law in this state and elsewhere. Town of Glencoe v. Reed, 93 Minn. 518, 101 N. W. 956,67 L. R. A. 901,2 Ann. Cas. 594;West v. Village of White Bear, 107 Minn. 237, 119 N. W. 1064; 2 Elliott, Roads and Streets, § 876 et seq. The municipal authorities, having in charge the care and maintenance of the public roads, no doubt possess the general right to cut down trees standing therein, when so located as to impair the usefulness of the way. The right is inherent and arises from the general obligation imposed upon them by law, within the limits of funds at their disposal, to keep and maintain the roads and highways within their respective jurisdictions in suitable condition for public use. But the statute in question expressly grants the authority subject to the restrictions and conditions imposed by the provisos above quoted, by which the private ownership of the trees is recognized and an ineffective attempt made to protect it.

[2] Under the statute the local tribunal proceeds ex parte, determines the facts, and makes its order, and the first information the landowner has on the subject comes after the order has been made and in the form of notice or command to him to cut down the trees. If he fails to comply therewith, the board is authorized to cut them down ‘at the expense of the town,’ with the proviso, in recognition of the landowner's title to the trees, that he may have them if he pays the expense incurred...