33 Minn. 181 | Minn. | 1885
The charter of the city of St. Paul, unlike those of many cities, has always given to the owner of any lots injured by an alteration in the previously-established grade of a street a right to compensation for the injury so caused. In the original charter no mode of altering an established grade, or for ascertaining the damages to lots, was prescribed. Laws 1854, c. 6, subc. 10, § 15. No notice to lot-owners of the proceedings to change a grade, nor opportunity to be heard, either on the matter of the change or of the damages, was given. The lot-owner was left to his action against the city to recover the damages. In the revision of the charter in 1868, it was provided (Sp. Laws 1868, c. 26, subc. 8, § 12) that notice of
We have referred in detail to these provisions of the charter to show how carefully the right given in the first charter to compensation for injuries to lots, resulting from an alteration in an established grade, has, through the various changes in the charter, been preserved; and also the care that was eventually found necessary to guard against improvident and unnecessary alterations in grades once legally established. They were inserted, not only to protect the interests of the city and the public, but also the rights accorded to owners of lots. The provision for an assessment of damages by the board of public works was inserted for the benefit of the city, and the design was to have all claims for damages for alterations in grades speedily determined, instead of being left till it might suit the convenience of owners to bring their actions. Others were inserted for the benefit of lot-owners; among them, that intending that before any grade shall be altered, the owners of lots likely to be affected shall
And this is also an answer to the suggestion that courts exercise great caution in respect to granting preliminary injunctions restraining works of public improvement. For, where the plaintiff'will otherwise be without adequate remedy, the injunction will issue, however important to the public the improvement may be.
The charter provisions prescribing how an alteration in an established grade shall be made, operate to prohibit the making of an alteration in any other way. The prohibition is for the protection of lot-owners. An actual permanent alteration in the grade, — an alteration, in fact, made merely by raising the surface of the street above or sinking it below the established grade, — though done illegally, would probably operate as injuriously upon property as would an alteration made pursuant to the provisions of the charter. If the effect of the structure contemplated in this case will be to make the grade of the structure the actual practical grade of the street, on which all public travel must go, it will be small consolation to plaintiffs to know that such grade is not the legal one, but that underneath it, at depths varying from one to twenty feet, there is a legal theoretical grade which has not been legally altered, but which no one can use. If the structure will bring about an actual permanent alteration in the grade of the street as such grade was established, the provisions of the charter for alteration of street grades must be complied with before it can lawfully be done. Taking the grade of a street, as the term is used in the charter, to be the line or lines of elevation on which public travel by vehicles and on foot is to pass, there can be very little question that the contemplated work is intended to and will change the actual grade — the publicly travelled grade — by raising it for part of the length of the work 20 feet above the former grade, and reach
Order affirmed.