59 Minn. 27 | Minn. | 1894
Summarized, the facts alleged in the complaint are as follows: The plaintiff owns a lot in the city of Winona, having a frontage on both Main and Front streets. The defendant city, by virtue of and in accordance with express authority from the state, has constructed a public wagon bridge across the Mississippi river, opposite the city. The Minnesota end of the bridge reaches the shore within the city limits, near the foot of Main street. The structure, being a “high” bridge, is considerably above the natural level of the river bank; and the city, for the purpose of affording access, for public travel and traffic, to and from said bridge, from and to Main street and the other public streets of the city, has constructed an approach or way on and along Main street, in front of plaintiff’s lot. This approach commences in the center of Main street, a short distance south of plaintiff’s lot, and gradually rises until it reaches the height of about twenty-five feet opposite the north end of the lot. This approach is twenty-four feet wide, leaving a portion of the street on
The bridge and approaches are open to the public for purposes of travel and traffic, but upon the payment of certain rates of toll fixed and exacted by the city. The city has never paid the plaintiff any compensation for damages to his property.
The act referred to, after expressly authorizing the city to construct and maintain this bridge and approaches, empowers it “to condemn any property necessary to be taken- for the purpose of constructing said bridge and its approaches,” and provides that “the damages to abutting property owners are to be determined as provided by chapter 8 of the charter of said city”’ The chapter of the charter referred to (Sp. Laws 1887, ch. 5, subch. 8) merely authorizes the taking of private property for certain public uses, and regulates the procedure in such cases, including the assessment and payment of damages.
The plaintiff bases his claim to damages on two grounds: (1) That the act of 1891, authorizing the building of this bridge, imposes upon the city a positive duty to pay such damages; and (2) that the construction of this bridge approach has imposed an additional servitude upon the street upon which plaintiff’s lot abuts.
I. Taking all the provisions of the act together, and considering its general purpose, we are clearly of opinion that it was not intended to impose upon the city a liability to pay damages, where no such liability already existed, but merely to provide a method of ascertaining and paying damages for such taking of private property as, under existing law, entitled the owner to compensation. The city was empowered to condemn private property for the purpose of constructing this bridge and approaches. It mig'ht become necessary to exercise that power, and the provision of the act relating to the assessment and payment of damages must be construed as referring exclusively to such cases. It would require much more explicit language than is found in this act to justify the conclusion
2. Do the construction and maintenance of this bridge approach impose an additional servitude on the street? It can hardly require argument to prove that the bridge itself is a public highway. The fact that tolls are exacted for its use by the public, for the purpose-of defraying the expense of its construction and maintenance, in lieu, of direct taxation for that purpose, does not change its character as a public highway, so long as all persons are entitled to use it as a public thoroughfare. County Commissioners v. Chandler, 96 U. S. 205.
The bridge is just as much a public highway as is Main street, with which it connects; and, .whether we consider the approach as a paid of the former or of the latter, it is merely a part of the highway. The city having, as it was authorized to do, established a new highway across the Mississippi river, it was necessary to connect it, for purposes of travel, with Main and the other streets of the city. This it has done, in the only' way it could have been done, by what, in effect, amounts merely to raising the grade of the center of Main street in front of -plaintiff's lot. It can make no difference in principle whether this was done by filling up the street solidly, or, as in this case, by supporting the way on stone or iron columns. Neither is it important that the city raised the grade of only a part of the street, leaving the remainder at a lower grade. The facts that it required authority from the United States and the state of Wisconsin, as well as of Minnesota, to empower the city to build a bridge across the Mississippi, and that such bridge extended beyond the city limits, are wholly immaterial, so long as the city kept within the authority conferred upon it.
Had the authority been to tunnel under the river, and the approach had been made by cutting down the grade of a part of Main street, the principle would have been exactly the same. The doctrine of the courts everywhere, both in England and in this country (unless Ohip and Kentucky are exceptions), is that, so long
The New York Elevated Bailway Cases cited by plaintiff are not authority in his favor, for they recognize and affirm the very doctrine that we have laid down (Story v. New York Elevated R. Co., 90 N. Y. 122), but hold that the construction and maintenance on the street of an elevated railroad operated by steam, and which was not open to the public for purposes of travel and traffic, was a perversion of the street from street uses, and imposed upon it an additional servitude, which entitled abutting owners to damages. Neither does Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, (39 N. W. 629,) aid the plaintiff, for that case proceeds upon the proposition that the construction and maintenance of an ordinary commercial railway upon a street is the imposition of an additional servitude. Plaintiff also cites numerous cases as to what constitutes a “taking” of private property. The law of those cases is unquestioned. There is no doubt that the acts of the city would amount to a taking of plaintiff’s property, so as to entitle him to compensation, provided the use made of the street by the city imposed an additional servitude upon it, but that is the very question in the case.
Our conclusion is that construction and maintenance of this bridge approach did not impose any additional servitude upon the
The common-law rule often works hardship, and this has often led to legislative action changing it in some respects, particularly in case of a change of a previously established street grade; but there is no general statute, and we are cited to no special one, imposing any liability on the city of Winona in such cases, and the doctrine is too well established to warrant the courts to ignore or change it.
Order affirmed.
(Opinion published 60 N. W. 814.)