Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-07-03
Ade1ine Taylor, Respondent, vs. The city Of st.
Paul. appellant.
OPINION.

Plaintiff is owner of a certain lot with build
street in the city of st. Paul. In 1879 the city
changed the Heretofore established grade of
the street where the same borders upon the
plaintiffs premises, and established a new
grade thereon, the line of which was about ten
feet lower than the line of the former grade.
Immediately after the change of grade the
city entered upon the street where it bordered
upon plaintiffs premises and then and there
excavated and removed the earth and rock to
the depth of about ten feet below
said former grade. For the damages resulting
from these acts the plaintiff brings this action.
The liability of the city upon the state of facts
thus set up in the complaint, was upheld in
Mccarthy vs.. st. Paul, % Mimi. 527, and is not
denied. But in behalf of the city it is insisted
that since the decision in the Mccarthy case,
statute (sec. 8, Oh. 23, special laws, 1870 has
stepped in and taken away the remedy by the
special course of proceedings prescribed in
sub. Oh. z, title 3, ch. l special laws, 1874.
Under this course of proceeding, after change
of grade has beeh finally determined, the mat
ter of the assessment of damages and benefits
is referred by the common council to the board
order they are required to make the assessment,
and they are authorized to proceed to confirm
the same, having first given notice by
publication of the completion of the assess
ment and of the time and place of which they
will meet to hear objections to it, DC. Within
twenty days after the first publication of the
notice any party aggrieved by the assessment
restrictions appeal to the district court.
In the case at bar 1t appears from the COM
plant that the change of grade was made in
1872, and that the excavation, &C., complained
Of was done Immediately thereafter, some four
or FIVE years before the passage of the act of
Ill H. ..k.x L. -
authorities to cause the assessment of damages
to be made (if not before entering upon the
plaintiffs land to excavate, certainly within a
reasonable time after making the change of
grade. What would be a reasonable time in gen.
eral we need not now determine. It is enough
for the purpose of this case to say that it would
be less than four years or even one year. The
complaint in this case contains the allegation
as to any assessment Of damages by the board
of public works in favor Of the plaintiff. 1t is
to be presumed however, in the absence of
anything to the contrary, that the proper au-
thorities discharged their duty in the premises,
and, therefore that all the assessment pro-
ceedings were duly taken long before the pas.
this is SO then it would not have
been possible for the plaintiff, after that act
became law to take the appeal provided for,
since the prescribed twenty days within which
an appeal must be taken if al all, had long
gone by.
At the time of the passage of the act OF
below, '.too late for the plaintiff to pursue the
remedy therin provided Certainly it was not
| competent for the legislature to take away hel
general right of action for damages by substi
tuting in its place remedy of which it was i'm
| possible for her to avail herself. We agree
with the Judge below that the case stated il
the complaint is not in any manner affected by
| the act Of 1871
The order overruling the defendants demur
rer to the complaint is affirmed.