83 Minn. 257 | Minn. | 1901
An ordinance of the board of park commissioners of the city of Minneapolis provided that no vehicle which, together with its
It appears from the record that in 1887, and for many years prior thereto, Lyndale avenue was a public street and highway, and had been used and traveled as such; that on June 25,1887, the park board passed a resolution designating that part of Lyndale avenue here in question as a parkway, and through its secretary sent a communication to the city council announcing the passage, on July 19, 1887, of that resolution, as follows:
“Resolved, by the city council of the city of Minneapolis, that so much of Lyndale avenue as lies between Western avenue and Twenty-Ninth avenue North be dedicated and turned over to the board of park commissioners as a parkway in compliance with their request of July 7, 1887.”
. After these proceedings the park board took possession of the street, and caused the same to be macadamized, at a cost of $13,000, the foundation of such macadam being broken stone, surfaced with limestone rock, with a slight covering of gravel, and rolled with a steam roller. Thereafter, and on November 19, 1887, the park board’s attorney submitted a report to the board relative to the title of the land along Lyndale avenue, and recommended that a certain proportion thereof, including that involved in this case, be abandoned for parkway purposes until the city should have perfected its title thereto. Upon this report the board passed a resolution to the effect that all proceedings of the board relative to laying out and improving Lyndale avenue as a parkway between Twentieth avenue North and Twenty-Ninth ave
It is asserted by counsel for the city that the park board assumed control of the avenue, and has had possession of and exercised dominion over it from the time of the completion of the council’s condemnation proceedings in 1888 down to appellant’s arrest in July, 1900. But the record is void of evidence showing what, if any, acts the park board performed in the exercise of such control. There is nothing to show that it kept the roadway in repair. Neither does it appear when the ordinance went into effect. So far as we are informed by the record, dominion and jurisdiction by the board over the avenue as a parkway can only be inferred from the fact that in 1887 the board instituted proceedings for its improvement by macadamizing it, and vacated such proceedings only for the purpose of permitting the city to perfect its title to the land, and from the further fact that the board assumed jurisdiction over it by having caused the arrest of appellant.
Sp. Laws 1883, c. 281, § 2, provides that the park board shall have the power, and it shall be its duty, to devise and adopt a system of public parks and parkways, and to designate the lands and grounds to be used and appropriated for the same; and, upon obtaining title or the right of possession thereof, to hold, govern, and administer the same, and to lay out and improve the same according to such plan as the board may adopt. But by Sp. Laws 1885, c. 304, § 1, it is provided that all parkways shall be subject to the control and government of the board of park commissioners
2. The pertinent part of the ordinance here involved reads as follows:
“* * * No vehicle, which, together with its load, weighs more than two thousand pounds, and which is in use for carrying goods, merchandise, building material, manure, dirt, earth, or other article or commodity, and which has tires less than six inches in width, shall pass or enter upon any park or parkway.”
It was held in the case of State v. Waddell, 49 Minn. 500, 52 N. W. 21B, that in respect to a parkway to which the city had not acquired title as a part of its park system the board had no power to exclude the ordinary class of traffic, and confine the travel
Conceding that the avenue in question was a parkway, and could be used by the public for general purposes of travel and traffic, how far does the board’s regulating power extend? If, in order to protect the roadbeds, it were necessary to prohibit heavy traffic in wagons with narrow tires, provided wider ones were reasonably obtainable, such requirement would not be unreasonable; but in this case the tire used by appellant was of the widest in common use carried in the market for such traffic. According to the evidence, the six-inch tire was not in common use, and was not found in the market ready-made, and only obtainable upon special order, and at extra expense. The evidence does not disclose that the roadway was in any manner damaged by appellant’s wagon, nor does it appear that such traffic with 3J inch tires would tend to impair the same. Under these circumstances the ordinance contained an unreasonable and arbitrary requirement, which, in its effect, was prohibitive of that class of traffic. Such power the board of park commissioners did not' possess, and in that respect the ordinance is void.
Order reversed.
On May 28, 1901, the following order was made:
Since filing our opinion in this case, attention has been called to a misstatement of facts. It is stated in the opinion that all proceedings with reference to the acquisition of Lyndale avenue as a parkway between Twentieth and Twenty-Ninth avenues had been abandoned and rescinded by the board of park commissioners. A more critical examination of the record discloses the fact that the
The petition for reargument is denied.