91 Minn. 285 | Minn. | 1904
Action to determine adverse claims to real property, in which defendant Brown had judgment, and defendant Horton appealed. The title relied upon by plaintiff was founded upon a tax assignment certificate, which the trial court found invalid, and plaintiff dropped out of the action. Defendants Horton and Brown claiming the property adversely to each other, and also adversely to plaintiff, the trial proceeded below principally between them. Plaintiff does not complain of the judgment against him, and we have only to determine the case as between the defendants.
The facts are as follows: Defendant Horton is the owner of the property in fee; subject to whatever rights defendant Brown acquired by the assignment of the rights of the city of Duluth, alleged to have been vested in it by a certain judgment and sale in proceedings in which the property was assessed for public improvements. The question presented is the validity of the special assessment proceedings. Subsequent to the .entry of judgment in those proceedings for the amount of the assessment, the city caused the property to be sold in the manner prescribed by law, at which sale it became the purchaser. Thereafter it assigned such title and interest as it thereby acquired to defendant Brown, who caused notice of redemption to be given; but no redemption was ever made. Subsequent to the expiration of the period of redemption the city formally executed a deed of the property
The charter of the city of Duluth (section 58), under which the proceedings here involved were conducted, provided as follows:
“Proceedings for the making of any improvement for which it is proposed to assess property owners shall be made in one of the two following ways: The property owners fronting upon the line of the proposed improvement, or those who are to be assessed therefor, or both, may ask for the making of said improvement, by petition in writing to the common council. If no petition is made asking for the making of said improvement, and if, in the opinion of the common council, public necessities require that it should be made, the common council may, by resolution, declare that, in their judgment, the making of the improvement contemplated is necessary.”
It will be observed that there were two methods by which public improvements might be ordered made by the city authorities, the cost and expense of which were to be assessed against property benefited: First, on petition of the property owners; and, second, by independent action of the city council. In case the council proceeded without petition from the property owners, they were required by resolution to determine that the proposed improvement was a public necessity. A fair construction of the other provisions of the charter on this subject, in connection with the provision just quoted, requires that, when action was taken and proceedings initiated by petition, it should be signed by a majority of the property owners affected thereby, or to be assessed for the expense of the improvement. The trial court found in this connection as follows:
“That on October 25, 1892, a petition containing the names of less than a majority of the owners fronting on the line of the*288 proposed improvement, and less than a majority of those to be and who were assessed therefor, was presented to the city council of Duluth, said county, for a sanitary sewer in Fourth street from Fourteenth Avenue East to Sixteenth Avenue East, and the same was referred to the board of public works of the city, who reported back the facts aforesaid, with an estimate of the cost of the proposed work. That the council never found that the improvement was necessary,'' but on May 16, 1892, by resolution authorized the construction of a sanitary sewer in Fourth street from Fourteenth Avenue East to Pennsylvania avenue, with an outlet in Fourteenth Avenue East from Third street to Fourth street, and house connections from the sewer to the rear curb side.”
It clearly appears from these findings that the proceedings here in question were initiated by petition, and not by independent action of the council, for the findings above quoted expressly state that the council never found that the proposed improvement was a public necessity; and, further, that the petition was received by the council and referred to the board of public works for their investigation and report. The findings referred to state that upon presentation of this petition it was referred to this board, and by it subsequently reported back, with, an estimate of the cost and expense of the proposed improvement, and this was the procedure required by other provisions of the charter; whereupon, and acting upon that report, the city council ordered the sewer constructed. The question, then, is whether the proceedings initiated and based upon the petition of less than a majority of the property owners affected thereby are valid.
1. The authority of the municipality to order improvements of this character, the cost and expense of which are to be defrayed by assessments against property benefited, was conferred wholly by the city charter. It does not exist at common law.' The law on this subject is very clearly laid down in 2 Cooley, Taxn. 1243, where it is said that municipalities have no inherent power in cases of this kind, and it is necessary to the validity of their action that they keep close to the authority conferred by statute. Their legislative action, if properly taken, is conclusive of the propriety of the proposed improvement,
The case at bar is wholly unlike State v. Judges, 51 Minn. 539, 53 N. W. 800, 55 N. W. 122, Fitzhugh v. Duluth City, 58 Minn. 427, 59 N. W. 1041, and City of Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117. The defects there relied upon to sustain the contention that the proceedings were invalid were irregularities not going to the jurisdiction of the city to proceed in the premises. The rule was-in those cases correctly laid down that the parties were concluded as to all such defects, mere irregularities, by the judgment entered in the proceedings. But they do not sustain the contention that a petition by a majority of the property owners to be affected is not a jurisdictional prerequisite to the authority of the city to order a public improvement of this kind.
2. Subsequent to the entry of judgment in the assessment proceedings below, defendant Horton moved the court, as thé owner of the property, to vacate and set aside the judgment as unauthorized and
It follows that the judgment appealed from must be reversed, and, as there is no controversy as to the facts, the cause will be remanded, with directions to the court below to amend its conclusions of law by directing judgment in favor of defendant ITorton to the effect that he is the owner of the property in question, free and clear of any claim of lien under the judgment. It is so ordered.
LEWIS, J., having as district judge ordered tlie judgment in tlie assessment proceedings, took no part.