45 Minn. 225 | Minn. | 1891
This action is for removing the lateral support to the soil of plaintiff’s lot fronting on Dearborn street, in the city of St. Paul, by removing, to the depth of eight feet, the earth from said street for the purpose of grading the same. The defence of the city, as we understand it from the answer, is that it acquired the right to remove such lateral support by acquiring an easement in the lot for the purpose of a slope, under the provisions of its charter. We do not understand it to be claimed by plaintiff that if the city, by valid
The appellant objects to the provisions of the charter regulating the proceedings for condemnation i.n such cases, that they are unconstitutional, in that they do not provide for personal notice to owners. The charter provides for notice by publication. In such cases, personal notice is not essential to the validity of the proceedings; The legislature may provide for constructive or substituted notice. Mills, Em. Dom. § 94.
Aside from the question whether the clause we have quoted from section 1 confers authority on the city to acquire by condemnation an easement in abutting lots, for the purpose of slopes rendered neces
The board of public works having acquired jurisdiction to assess the damages for the condemnation, any error in making such assessment is to be corrected by appeal. Chapter 7, tit. 1, §§ 16, 17, (Sp. Laws 1887, pp. 338-9.). That would be the case where, as is charged here, they omit to include, in the amount assessed for taking the land, the damage to a building standing on it. The damage to the building is, under section 12, to be assessed as part'of the damage.for taking the land, except where the. land is owned by one and the building by another, when the damage to the building is to be assessed separately. That is not this case.
There can be little doubt that the city may abandon 'an easement acquired for a slope for a street grade, but an intention to do so would not be established alone by the fact that it constructed a retaining wall. The construction of such wall, if . permanent in its character, might furnish evidence of an intent to abandon the easement ; but, without such intent, it would not have that effect.
Order affirmed.
Note. A motion for a reargument of this case was denied February 6, 1891.