52 Minn. 409 | Minn. | 1893
This is an action to recover from the defendant city the sum of $513.60, which had been assessed and allowed as damages for a change of the grade of two streets upon which abutted the land with respect to which such damages were allowed.
In April, 1888, one Schroeder owned this land. At that time he mortgaged it to one Kirtland, and thereafter (July, 1888) he sold and conveyed it to Gehan. In proceedings for the foreclosure of the mortgage the land was sold February 19,1890; the mortgagee, Kirtland, being the purchaser, and the amount bid therefor being the full amount of the mortgage debt. No redemption’ was ever made, and, upon or after the expiration of the period for redemption, Kirtland sold and-conveyed the land to this plaintiff, transferring also to him the right of the former in respect to the money here sought to-be recovered.
Prior to the foreclosure sale, proceedings had been instituted for a-change of the grade of the streets; and the common council of the-city had adopted a resolution that the grade be changed, and had referred the matter to the board of public works, pursuant to the-charter, for an assessment of damages. The assessment was not-made by that board until March 12,1890, (after the foreclosure sale,) and it was not completed by confirmation until April 7, 1890.
Upon trial in the district court the plaintiff was held entitled to recover the damages which had been awarded for the change of grade.. The defendant appeals from an order refusing a new trial.
It is further said, in defense, that under the charter the damages were assessed only in favor of the “owner” of the property, and that
Finally, the point is made that the damages awarded are to be raised by assessments upon property benefited by the alteration of the grade, and that no action will lie against the city to recover the same, at least until the money has been cóllected by the city by means of such assessments. It does not appear, unless by inference, whether or not the money has been thus collected. Assuming that this is the correct construction and effect of the law, we are still of the opinion that the circumstances of this case are such that the action is maintainable. We may accept as well founded the claim on the part of the city that, by force of section 4 of title 3 of the law above cited, the provisions of title 1 of the same chapter (prescribing, among other things, the proceedings for the condemnation of land for public use) are made applicable to proceedings for a change of street grades. Section 18 of the latter title provides that the city shall not “enter upon, take possession of, and appropriate the property condemned” until the money is collected, and ready, in the hands of the treasurer, to be paid over to the parties entitled to damages for the property condemned, nor until the treasurer shall have published a notice thereof as specified. It was alleged in the complaint that the city, by its proper officers, changed the established grade, and “proceeded to grade the said streets, whereby the premises aforesaid were greatly damaged,” etc. The regrading of the street in conformity with the changed grade would be an appropriation of the property of the adjacent proprietor, the owner of the soil, unauthorized, under the law referred to, except under the conditions there prescribed. This allegation of the actual change of the grade is not effectually denied in the answer. The general and bare averment that the defendant has not knowledge or information sufficient to form a belief as to the truth of the allegations-of the complaint does not avail with respect to the alleged conduct of the defendant, concerning which, presumably, it must have knowledge. Hence we take the alleged fact to be undisputed. The city, having thus appropriated the property, by actually changing the
Order affirmed.
(Opinion published 54 N. W. Rep. 370.)