57 Minn. 294 | Minn. | 1894
This is an appeal from an order denying plaintiffs’ motion for a new trial in an action brought to enjoin the city of Minneapolis from assessing and collecting a special assessment of taxes on the property of the plaintiffs for benefits to their property in changing the grade of Fifth street north in said city, where it approaches and crosses over the tracks of the Great Northern Rail
Such claims were filed for the change in grade of Fifth street, and such a commission was appointed. They assessed the damages to the permanent buildings thus damaged in the sum of $20,000 in the aggregate, and awarded that amount as compensation to the owners of such buildings, and assessed or levied the amount so awarded against the lands and premises of these plaintiffs and others as benefits which they would receive by such change in grade, and hence this suit.
1. On the authority of State ex rel. v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N. W. 3,) appellants claim that the obligation to pay these damages rested on the railway companies. That case does not so hold. It holds that it was their duty to restore the crossing, and where, to accomplish this, it was necessary to build approaches, it was their duty to build them; and if, in the prosecution of the work, it became necessary to encroach upon private property, that they had the power of eminent domain, and should, at their own expense, acquire the rights necessary in order to restore the crossing.
Neither are the cases of Robinson v. Great Northern Ry. Co., 48 Minn. 445, (51 N. W. 384,) and Parker v. Truesdale, 54 Minn. 241, (55 N. W. 901,) decisive of the question of the liability of the property benefited to pay the damages here awarded, as claimed by respondent, and held by the court below. In those cases the owners of property abutting on the approaches brought suit against the railroad companies for damages resulting from the change of grade. As to those cases, it is only necessary to suggest that the right to damages for a change of the grade of a street is purely a creature
We are of the opinion that the railroad companies were not primarily liable for the damages to abutting owners resulting from the change of grade of the street The right to such damages is one that did not exist when the railroad charters were granted. Then the obligation to pay such damages was not a charter obligation. Whether or not the legislature could, since it granted the charters, and the companies accepted and acted upon them, have imposed this obligation on the companies, it is not necessary to consider. It is sufficient to say that the legislature has not imposed it on the companies, but on the property benefited.
It is true that the court and the city, if they had both so decided, could have compelled the companies to lower their tracks so low as to run under the street without any change of the street grade. But the object to be attained was not the preservation of the then existing street grade, or the exemption of these plaintiffs from liability for these statutory damages, but the restoration of the street, not to as good a condition as if the railroads did not run there, but to such a condition as was reasonable and proper, under all the circumstances, — to such a condition as not "to interfere with its free and proper use.” The city and the court decided what this reasonable and proper condition was to which the street should be restored. It is immaterial whether one or the other, or both, ultimately so decided. As far as these plaintiffs are concerned, they are conclusively bound by the result, and cannot be heard to say that there was no public necessity for the change of grade. If an incident of that result is to throw these statutory damages upon them, that is their misfortune.
3. It is further claimed by appellants that this special assessment upon their property is void because the city council had put itself in a position where it had no opportunity to reconsider its vote when the time to file claims for damages had expired. The charter provides that- the council may at that time reconsider its vote if, from the amount of damages claimed, it deems it unwise to make the change of grade. This right to rescind the proceedings is in the nature of a privilege to be exercised by the city council. The statute does not say that the work of grading shall not be commenced before the time to rescind expires, and it is in the discretion of the council how far it will proceed before the time to reconsider arrives. Whether or not the change is apparently unwise, and the damages likely to be so great and oppressive to those assessed to pay them as to make it an abuse of discretion for the council to proceed until the claims for damages have all been fled, and as to whether or not, in such a case, the court would grant relief, and as to whether or not the application should be made promptly before expense is incurred in carrying out the work, are all questions which it is not necessary here to consider. Neither the agreement with the railroad companies nor the prosecution of the work before the time to reconsider arrived destroys the validity of the assessment proceedings.
4. The charter of Minneapolis, ch. 8, § 9, provides that bridges crossing railroad tracks and the approaches thereto, when not chargeable to the railway companies, shall be built and maintained by the city as a general city charge. The appellants cite this as showing that these damages are a general city charge. Other parts of this section provide that the grading of streets shall, except as above provided, be a
5. Appellants claim that said chapter 5, Sp. Laws 1885, is unconstitutional because the subject of the act is not expressed in the-title. The title to the act is “An act amending section 2 of chapter 8 of the charter of the city of Minneapolis.” The title is sufficient. State ex rel. v. Madson, 43 Minn. 438, (45 N. W. 856;) Willis v. Mabon, 48 Minn. 140, (50 N. W. 1110.)
6. Appellants claim that the statute authorizing these assessments is unconstitutional, because the parties whose property is assessed have no opportunity to be heard as to who shall be appointed on the assessing commission, and no appeal is allowed in which a new commission may be appointed by the court after hearing. It is well settled that, as against the state, property owners have no. such constitutional rights, whether the assessment is of some regular tax for general purposes upon the regular tax districts, or of some-special tax for a special purpose upon the district specially benefited. Hennepin Co. v. Bartleson, 37 Minn. 343, (34 N. W. 222;) Carpenter v. City of St. Paul, 23 Minn. 232; State ex rel. v. District Court of Ramsey Co., 33 Minn. 295, (23 N. W. 222;) Rogers v. City of St. Paul, 22 Minn. 494.
7. Appellants further claim that the tax districts designated by the commissioners are too small; that a large area of the city was benefited by, and should be assessed for, these improvements; that the boundaries of the district are arbitrarily fixed; and that property within the district has been omitted which should be assessed. It may be well to remark that the size and shape of the tax districts-might properly have been influenced, to some extent, by the fact that similar improvements were at the same time being made on Third and Fourth streets, and were by the mandamus proceedings provided, for on Seventh street, all of which, as well as the improvements on. this street, will connect North Minneapolis with the southern part of the city.
But injunction will not lie to restrain tax proceedings when there-is an adequate remedy provided by the statute. It has been held.
If the assessment proceedings cannot, prior to the final determination and entry of the tax judgment, be reviewed for such errors by the direct proceeding of certiorari, how can such proceedings for such errors be attacked collaterally by injunction? The other assignments of error have no merit.
This'disposes of the case, and the order of the court below should be affirmed. So ordered.
(Opinion published 59 N. W. 304.)