68 Minn. 297 | Minn. | 1897
The trial court erred when it dismissed this case at the conclusion of appellant’s evidence. It is conceded that this dismissal was based upon the fact, as appeáred from the proofs, that appellant’s only right or interest in the land over which the public
By means of an act entitled “An act relating to roads, cartways and bridges,” Laws, 1873, c. 5, the legislature systemized the various enactments upon the subject which had theretofore existed, and since, then very few changes have been made. Section 39 provides for the assessment and award of damages to landowners sustained by reason of the laying out, alteration, or discontinuance of these roads. And the final paragraph expressly provides that, “for all the purposes of this act,” any person living on United States land who has made his declaratory statement for the same in the proper land office shall be considered the owner of such land. Section 39 is now G-. S. 1894, § 1821. By section 49 of chapter 5, supra, the act of 1873, county commissioners were authorized to lay out and establish county roads, the procedure being regulated by sections 50, 51, 52, 53, and 54. Section 49 is now in G-. S. 1894, § 1838, while the other sections of the original enactment follow in regular order. In section 53, section 1842, is a proviso that all damages sustained by laying out or altering any county road shall be assessed by the county commissioners and paid by the county.
In section 57 of'the original act, Gr. S. 1894, § 1855, was a prohibition as to the assessment of damages, “under the provisions of this chapter,” to any person where the title to the land over which the road passed was vested in the state or the United States at the time of the location of the road, “excepting^ as otherwise provided in this chapter.” This last section has application to all roads referred to in the original act, whether town, county, or state, and is not inconsistent in any way with the last paragraph in section 39, from which we have heretofore quoted. These sections are to be construed as parts of one act, and these provisions are easily reconciled and har
The appellant, as a homestead settler, having made entry and being a resident on the land, was its owner for all purposes under the 1873 act. He was entitled to have the question of his damages by reason of the laying out of the road over his land considered by "the jury. In fact, should we adopt the construction claimed by respondent for the section last mentioned, the county commissioners would, upon the face of the statute, be authorized to take private property for public use without any compensation whatsoever; for in Red River v. Sture, 32 Minn. 95, 20 N. W. 229, it was held that an entry under the homestead act is in fact a contract of purchase, and that the settler has an inchoate title to the land, which is property. He has a property right, which cannot be taken from him without just compensation.
The trial court also erred when it compelled appellant’s counsel to elect to proceed upon the question of damages alone, and to waive all objections which might have been raised to the regularity of the proceedings of the commissioners, and the validity of their decision and determination. The appeal was taken under the provisions of Laws 1895, c. 54; and the notice stated, as grounds therefor, that the decision and determination were without jurisdiction, contrary to law, irregular, and void, and that the appeal was taken for the purpose of reversing the action of the commissioners, and also, in the event of the location of the highway, to compel the payment of a stated sum as damages. There is no provision in chapter 54 which prohibits an appellant from questioning the validity of the proceedings, and also the sufficiency of the award of damages, while it is expressly provided that, on the trial in district court, the court or jury, as the case may be, shall reassess the damages, unless a determination of the matters tried in said court shall render such reassessment unnecessary. This clearly indicates that it was intended to
Order reversed.