124 Minn. 107 | Minn. | 1913
The village council of the village of Le Roy, in Mower county, duly adopted a resolution laying out and establishing a street over and across the right of way of appellant, the proceeding being conducted under the provisions of chapter 145, p. 148, Laws 1885. The questions in issue were heard before a justice of the peace and a jury where the right of the village to open the street was affirmed. The railroad company appealed to the district court where a verdict was returned again sustaining the proceeding. The company then moved in the alternative for judgment notwithstanding the verdict or for a new trial, and appealed from an order denying the same.
It is contended by appellant: (1) That the village of Le Roy is without authority to lay out or establish public streets or highways, and therefore that the proceedings are a nullity and should be dismissed; (2) if it have such authority, that there exists no public necessity for the street in question, and that the verdict of the jury affirming such necessity is without support in the evidence; and (3) that the trial court erred in excluding certain evidence of damages sustained by the appellant, resulting from opening the street across its tracks.
It is the contention of appellant that the village of Le Roy was incorporated under a special law and, since it was never reincorporated under the act of 1885, its sole authority must be found in the act of incorporation. On the other hand respondent contends that it was in fact incorporated under the general village act of 1875, and that its continuance as a village was provided for by section 2 of the act of 1885. We sustain respondent’s contention. In fact the precise question was involved in the case of State v. Cornwall, 35 Minn. 176, 28 N. W. 144, and it was there held that the village of Pine Island, incorporated by special act, substantially like that incorporating Le Roy, was incorporated under the general laws of 1875, and was continued as a village by force of section 2 of the act of 1885. The facts in respect to both villages are substantially the same, and the case referred to controls that at bar. The question is there discussed and requires no further comment. See also Flynn v. Little Falls Ele. & Water Co. 74 Minn. 180, 77 N. W. 38, 78 N. W. 106. While,
Order affirmed.