136 Minn. 1 | Minn. | 1917
This action was brought to enjoin defendant city of Minneapolis from taking possession of and erecting structures for street purposes upon a strip of land 1,100 feet long and 20 feet wide. The case comes to this court on plaintiff’s appeal from an order denying a motion for a temporary injunction.
The facts as they appear from the pleadings and the moving papers may be stated as follows: Prior to October 10, 1910, one H. K. Feye was the owner of a tract of land lying between Sixth street north and Seventh street north and between Hoag avenue and Fifth avenue north
In October, 1913, the city instituted proceedings to acquire land by condemnation for the purpose of widening and opening Seventh street north from Hennepin avenue to Plymouth avenue. . The resolution of the common council did not designate the lands proposed to be taken by lots or blocks, but described them in general terms, and, as required by law, directed the city engineer to make and present to the council a plat and survey showing the character, course and extent of the improvement, the property necessary to be taken and the names of the owners of each parcel, so far as the city engineer can readily ascertain the same. This plat and survey was presented to the council in November, 1913, and a resolution passed adopting it and directing it to be filed with the city clerk. It was so filed, and made the basis of all the subsequent proceedings, which resulted in the condemnation of the 20-foot strip of the tract here in controversy which lies adjacent to Seventh street north. In 1915, the city commenced the actual work of widening the street, and in March, 1916, commenced the construction of a retaining wall on the strip. This construction was in progress when this action was begun in April, 1916.
Plaintiff’s claim that by the condemnation proceedings the city acquired no title or right to the strip in question is based upon the fact that the plat and survey gave the name of “H. J. Feye” as the owner of the tract, and did not mention the name of plaintiff in that connection, though it was the owner of- record of a four-fifths interest therein. This is true, as it is also that the name of plaintiff was not mentioned in the award of damages and benefits. But the strip proposed to be taken was clearly shown on the plat filed, and an inspection of this plat by plaintiff could leave no doubt that its property was proposed to be taken for the improvement. Plaintiff was named on the plat as the owner of the
The proceedings were under the so-called Elwell Law (G. S. 1913, §§ 1566-1572). The provisions of this law as to notice to the owners of property proposed to be taken or affected are in substance as follows: The plat and survey of the engineer is required to show the character, course and extent of the proposed improvement, the property necessary to be taken or interfered with thereby, the amount of land taken from each owner, “with the name of the owner of each parcel of such property so far as the engineer can readily ascertain the same.” The council then appoints four freeholders as commissioners to view the premises, ascertain and assess the damages and benefits. The commissioners are required to give notice by two publications in the official paper that the plat and survey is on file for the examination of all persons interested, and that they will, on a day designated in the notice, meet at a place designated, view the property, ascertain and assess damages for the property taken or interfered with, and assess benefits, then and there hearing interested parties. After the report of the commisioners is filed with the city clerk, he is required to give notice by one publication in the official paper that he will present the report to the council at its next meeting, or as soon thereafter as practicable, for consideration and action. This notice must be published at least 10 days before its presentation to the council, and must contain descriptions of the different parcels taken, with the amount of damages awarded, and the names of the owner or owners of each lot or parcel, “as nearly as the same can be readily ascertained.”
The foregoing are the only provisions as to notice to property owners either of the meeting of the commissioners or of the council's meeting to consider their report. The act does not require personal notice, or notice by mail. It does not require that the owners of property to be taken or interfered with be stated in the plat or in the notices when such names cannot be “readily ascertained.” The proceedings were in strict accord with the law, save possibly in the failure to name plaintiff either on the
We note the argument that plaintiff, being notified that a part of its right of way was to be taken, was justified in assuming that this was all, that no other property belonging to it was proposed to be taken. But the
Our conclusion is that plaintiff failed to show that the proceedings were void or did not give the city title to the strip attempted to be condemned.
Order affirmed.