38 Minn. 266 | Minn. | 1888
This is a proceeding by the state to appropriate lands for a public park. We do not understand that the authority of the state to make such appropriation in the exercise of the power of •eminent domain is questioned, or that the plan adopted for ascertaining the compensation to be paid to the land-owners is attacked by the appellants. Private property is held subject to the control of dhe sovereign power of the state, exercised through the legislature, for public uses; and the land-owner’s rights and interests are subordinate to this authority, and he must necessarily submit to the inconvenience and delays incident to the proper proceedings instituted to ascertain the price to be paid or compensation to be made for the property compulsorily taken from him. If the purpose be public, the legislature is to judge of the necessity or propriety of appropriating the land, and, in the exercise of the power of eminent domain, simply obliges the owner to sell, “and the public is to be considered as an individual treating with an individual for an exchange.” 1 Bl. Comm. 139. And a reasonable opportunity may be given, to ■abandon the proceedings, or reject the offer, if the price is found ■ to •be such as to render it inexpedient to go on with the projected enterprise. And where the property is taken directly by the state or a municipal corporation, the fact that payment is postponed for a reasonable time to make an assessment and collect a tax to pay the amount ascertained, or to enable the legislature to decide finally, or make an -appropriation, does not make the law authorizing condemnation proceedings unconstitutional. In such cases the bargain is not deemed •closed until the final determination to take the property, nor the property actually taken until the compensation be paid or secured ■by being made a lawful claim upon the public treasury. Hammersley v. Mayor, etc., 56 N. Y. 533; cases cited, 31 Am. Dec. 374; State v. Messenger, 27 Minn. 119, 123, (6 N. W. Rep. 457.)
And just here comes in the objection of the appellants that .un•der this act the damages are estimated at one period, and the actual
By this act — which, in its essential features, is a copy of the New York act for the acquisition of a state park at Niagara Falls, (Laws N. Y. 1883, e. 336) — the lands are not to be-taken possession of by the state until the amount awarded is duly appropriated by act of the legislature, and paid or tendered. No unreasonable delay is contemplated in the provisions for the proceedings to be taken under the act for the appraisement of the land and the report thereof to the legislature. The report of the appraisers (section 6) was required to be filed as soon as completed, and could not be delayed more than
2. Under section 7, upon the application to confirm the award, the district court “shall hear the matter, and make such order as may be just.” It is conceded that the record of the proceedings isregular onits face, and no irregularity on the part of the appraisers is charged. It is only insisted that the valuation placed upon the land is too low. Whether the court might not set aside or refuse to confirm the awards for irregularities or gross unfairness in the appraisal shown by evidence dehors the record, we need not determine, as we are of the opinion that no such showing was made, and the proof offered did not go far enough to make a case for such relief. The record shows, and it is not questioned, that all parties had notice and ample opportunity to present their evidence and be heard before the appraisers; that the appraisers carefully examined the various tracts and parcels of land, duly considered the evidence, and made their appraisal accordingly; and the legal presumption is that they discharged their duty. There is nothing to show that all proper evidence offered on both sides was not received and considered, or that the evidence now offered, or similar evidence, was not also offered and heard on the appraisal, or that there may not have been abundant countervailing evidence. And there is no question, perhaps, upon which the opinions of witnesses are more likely to differ than that of value. For the same reasons the application for a reappraisal in this court must fail, and, besides, this court would hardly assume to grant the motion upon an ex parte .showing merely.
3. We see no objection to the form of the award. Under section 10 the court would have to determine between “diverse and conflicting claimants,” and direct to whom the award shall be paid, and that