152 Minn. 39 | Minn. | 1922
This is an appeal by a property owner from tbe order reviewed in Improvement of Lake of tbe Isles Park, supra, page 29, in which many of tbe questions raised on this appeal are disposed of. We shall refer only to those which were not there involved.
In 1890 tbe park board purchased and designated as a park 25 acres >of land south of Lake Calhoun. Tbe purchase price was $113,000. Tbe board resolved to assess that amount upon lands specially benefited. Appellant’s property was accordingly assessed $3,320, and tbe assessment was paid. In 1908 tbe board acquired
Appellant vigorously combats this conclusion. He insists that it is absurd to say that his land was benefited by having the marsh in front of it owned by the city instead of by private individuals; that there could be no valid assessment except for actual benefits, which could only accrue when the unsightly spot was transformed into a park or parkway, and that the previous assessments included the cost of the land and benefits resulting from putting it to the use for which it was acquired. The argument is plausible and is reinforced by a dictum in the opinion of Mr. Justice Mitchell in State v. District Court for St. Louis County, 66 Minn. 161, 68 N. W. 860, and
The first step in the establishment of a park is to acquire the land and dedicate it to public use. This alone may enhance the value of property in the neighborhood, although the land is left in a state of nature. It may even confer greater benefits than the subsequent improvement or adornment of the land, and an immediate assessment of such benefits may be made. Thus in State v. District Court of Ramsey County, 75 Minn. 292, 77 N. W. 968, an assessment to cover part of the purchase price of Phalen Park was levied as soon as the land was acquired, and in Foster v. Board of Park Commrs. 133 Mass. 321, followed in Jones v. Met. Park Commrs. 181 Mass. 494, 64 N. E. 76, and cited with approval in Wilson v. Lambert, 168 U. S. 611, 18 Sup. Ct. 217, 42 L. ed. 599, it was held that a betterment assessment could be laid for locating and laying out a park before the park was completed. In Foster v. Board of Park Commrs. 131 Mass. 225, it was held that there could be no¡ assessment for the estimated expense of constructing a park in the future. The reason given was that it might be constructed at a less expense or not constructed at all, hence it was necessary that the expense should actually be paid or incurred. This seems obvious, for the cost of an improvement necessarily enters into every special assessment. Until it has been ascertained with some degree of certainty, there is no basis for an assessment. The previous assessments upon appellant’s land were ordered before any improvements were made or directed. There was no undertaking to make future improvements and no duty to make them was imposed by statute. If benefits had been assessed on that basis, the assessment could not have been sustained. An assessment cannot be levied for benefits not secured, In re Minne-
Our attention has not been called to any obstacles to successive special assessments if they are not for the same improvement. This court has said that the power to levy such assessments is continuing and coextensive with benefits received, and, whenever its exercise becomes again necessary by reason of the inutility of the original improvement, it may be again exerted. Karst v. St. Paul S. & T. F. B. Co. 22 Minn. 118; State v. District Court of Ramsey County, 80 Minn. 293-310, 83 N. W. 183; McMillan v. Board of Co. Commrs. of Freeborn County, 93 Minn. 16, 100 N. W. 384, 1125. The authorities generally support this view. Dillon, Mun. Corp. (4th ed.) § 780; (5th ed.) § 1151; Page & Jones, Taxation by Assessment, § 954; McKevitt v. Hoboken, 45 N. J. Law, 482; Sheley v. City of Detroit, 45 Mich. 431, 8 N. W. 52; Shannon v. Omaha, 73 Neb. 507, 103 N. W. 53, 106 N. W. 592.
It is contended that the assessment is void because in part it is to pay for curbstones, gutters and sidewalks on streets upon which the parks or parkways abut and there was no concurrent resolution by the city council as provided by sections 1 and 6 of the Elwell Law. We are of the opinion that such a resolution is not necessary where a park bordering on a street is to be thus improved. Streets come in contact with parks and parkways. To complete the improvement of the latter, curbs and gutters on the park side of the street are necessary and so are sidewalks. Primarily they are park rather than street improvements, and hence they may be made at the direction of the park board alone.
A portion of appellant’s brief is devoted to an indictment of the growing tendency to trample upon the rights of the individual when thought to conflict with those of the public. All. that is said may properly be addressed to the legislative department of the state government. Whether a public improvement shall be undertaken when wages are high and materials are expensive, or the improve
In determining whether a special assessment shall be sustained, the courts will look to see that there has been a compliance with the requirements of the statutes and Constitution. Beyond that they may not go without usurping power not committed to them.
This, in connection with what has been said in the opinion in the companion appeal, covers all of the assignments of error which require discussion.
Order affirmed.