130 Minn. 359 | Minn. | 1915
In 1888, the county of Hennepin constructed a canal or waterway, known as the “narrows,” connecting upper Lake Minnetonka with lower Lake Minnetonka; and, apparently in the same year, laid out and established a county road which passed over the narrow neck of land between these lakes and crossed this canal. Travelers upon
Plaintiffs own lots in the village of Tonka Bay adjacent to the bridge and abutting upon the highway upon which the easterly approach is constructed, and brought suit against both the county of Hennepin and the village of Tonka Bay for damages to their property, resulting from the erection of the embankment in front of it. The county demurred to the complaint and the demurrer was sustained by the trial court. The village answered and the case was tried between plaintiffs and the village and resulted in a judgment against the village. The village appealed.
That plaintiffs are entitled to damages is not seriously questioned by any one; and the real controversy is whether the county or the village is liable therefor. The village contends that the liability rests upon the county and not upon the village. The trial court held that it rested upon the village and not upon the county, and the correctness of this ruling is the important question in the case.
The bridge and the approaches thereto were constructed wholly by the county, and the village took no part therein. Chapter 164, p. 202, Laws 1905, and the acts amendatory thereof, gave counties having more than 150,000 population authority to make such improvements as those in question without the assent or concurrence of the village. The county proceeded under this statute and entirely ignored the village. The statute does not state in express terms
“The damages for injuries of this nature, where no property is actually taken, are consequential, not direct; no person is actually deprived or dispossessed of his property, and the authorities hold that-*363 prepayment is unnecessary. The damages in such cases may be recovered against the municipality. Dickerman v. City of Duluth, 88 Minn. 288, 92 N. W. 1119. That remedy is adequate and sufficiently protects all constitutional rights. Of course, this rule would not obtain in any case where the property owner is actually dispossessed or deprived of his property.” And again at page 340 [108 N. W. 483]:
“We accordingly hold that inasmuch as no property of plaintiff was actually taken, and his damages are consequential only, it was not necessary as a condition to the right of the city to vacate the streets that the damages be first ascertained and paid. In some of the states whose decisions we have referred to express statutory provisions require the payment of damages in such cases. But in view of the fact that the municipality is liable therefor at the suit of the injured party, express legislative command in that respect is unnecessary. The Constitution creates the right to redress, and the right thus given can neither be enlarged nor diminished by legislation. Since the property of the municipality is a fund to which the injured party may resort by appropriate action in the courts, means for ascertaining and enforcing payment of compensation are sufficiently provided.”
The reasons for the rule are fully set forth in the case cited. That case involved damages resulting from the vacation of streets; but the same rule is applied in respect to damages resulting from a change in the grade of streets. Dickerman v. City of Duluth, 88 Minn. 288, 92 N. W. 1119; Wallenberg v. City of Minneapolis, 111 Minn. 471, 127 N. W. 422, 856, 20 Ann. Cas. 873; Hirsch v. City of St. Paul, 117 Minn. 476, 136 N. W. 269.
The above cases are all against cities; none of them is against a county. But the logic of all of them is to the effect that the municipality which invades the right conferred upon the property owner by the Constitution must respond in damages therefor. The case of Tyler v. Tehama County, 109 Cal. 618, is quite similar to the case at bar. In that case as in this, the county had constructed a bridge which caused damages to plaintiff’s property and plaintiff sued to recover therefor; the original Constitution provided that private
The court held that the amended Constitution, prohibiting the damaging of property without making compensation therefor,
In Schussler v. Board of Co. Commrs. of Hennepin County, 67 Minn. 412, 70 N. W. 6, 39 L.R.A. 75, 64 Am. St. 424, it is held that the county of Hennepin was liable for damages to the plaintiff’s property, caused by a dam built by the county across Minnehaha Creek, for the purpose of maintaining a uniform height of water in Lake Minnetonka. In Viebahn v. Board of Co. Commrs. of Crow Wing County, 96 Minn. 276, 104 N. W. 1089, 3 L.R.A.(N.S.) 1126, it was held that the county of Crow Wing was liable for damages' caused by constructing a bridge across the Mississippi river.
It may be conceded that where a village is incorporated and includes within its territory part of a county road, the portion of the road within the village, as a general rule, becomes a village street and subject to the control of the village; but it is entirely competent for the legislature to give a county control over public highways within the village to any extent it may see fit. The county constructed the improvement in question under direct authority from the legislature. In doing so it took plaintiffs’ property within the mean
Judgment reversed.
[California Const. 1879. art. 1, § 14.]