St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1885-04-03

! them snail be deemed 10 constitute one entire
improvement, for which an assessment may
be made upon property found to be benefited,
must depend largely upon the facts of each
] case
For example, in The State vs.. District Court,
90 Mimi, 81, it was considered that cutters
| and culverts might be included with grad
ing. (Walter u Walton rs n. Y, 361)
1t is clearly think, that filing, grading and
bridging on a street may be so connected as
to constitute a single improvement. 1t APP
pears from the records of the council that
they made separate reference to the board
of public works Of the work Of grading the
streets in question, and of the roadway,
or viaduct so called, over Phalen's
valley in which is situated the st. Paul IL
Duluth railroad track, and of an iron bridge,
abutments and masonry over the st. Paul 81
Manitoba railroad, (Trout brook, but the
board of public works in their report to the
council included all these several portions
of the work as together constituting one
| improvement, and certified that they had
investigated the proposed improvement and
that the same was necessary and proper.
They also reported that real estate to be as
sessed therefor could be found to be benefited
to the extent of the cost, etc. And there
upon the city council adopted such report
and ordered that the board cause such
improvement to be made in conform
| ity Herewith, and directed that
the contract be let as provided
by law, and that ''after such work shall be
placed under contract said board shall pro-
coed without delay to assess the cost thereof
upon property to be benefited, as prescribed
by law, it being the opinion of the council
that real estate to be assessed for such i'm
provement can be found benefited to the eX-
tent of the cost, ETC., the proceedings being
in the usual course under the charter. This
order, with the approval of the contract by
the council, constituted the authority of the
board to proceed.
Charter CHI. Z, sec. %; State ex rel. Lewis
| VS.. District Court supra.
AS respects the specific objection now
being considered we are therefore
unable to say that one assessment
might not properly be made for the whole
work.
Walter vs.. Walton, rs, N. Y, 36I.
No errori is alleged in the formal proceedings
Of the council or of the board in failing to
comply with the charter in so far as such
proceedings appear of record.
(3) The charter, ch. z, Sec II, requires the
board in making an assessment for benefits
and"in estimating the benefits to any particu
lar lot piece or parcel OF land, to take into con-
sideration the nature of the owners interest,"
the form and position of their several parcels,
etc., and any other circumstances which
render it (the Improvement more or less
beneficial to him or them, and the determ-
nation and assessment or estimate of said
hoard shall be final. except where an appeal
is expressly allowed" etc. 1t is
claimed by the relator that these
provisions were not complied with by the
board, and also that by fraud or mistake
property was improperly excluded from the
operation of the assessment, and that the
assessment was oppressive and unjust. Ev
idence was accordingly offered on both sides
upon these issues before the district court,
and taken together. though the opinions of
witnesses greatly differ, we are unable to say
that the court erred in overriding these Oh
Jectlons to the assessment. AS to the prop
erty omitted it was left out, as the evidence
on the part of the city tends 10 show, after
careful examination and consideration by
the board, because in their opinion its situa-
ton was,such in respect to the improvement
that it was not specially benefited
thereby. Amidst the conflict of opinions
it is easy to see that there may have been
errors of judgment on the part of the asses
sOrs; this is necessarily incident to the per-
formance of such duties; but we think the
| assessment is not shown to have been fraud
ulent or to have proceeded upon a wrong
rule in including, excluding or valuing
property. Nor does it appear that there was
any lack of diligence in considering the ma
ture of the interests of owners, or the condi-
tons or situation of the property assessed.
The decision of the board on these questions
| is therefore conclusive.
State ex rel. Lewis, etc, supra.
(4) 1t is also objected that the city
was not authorized to make SO wide fill in
Phalen's valley, without previously widening
| the street by proceedings under the charter.
Th is is, however, answered by the sugges-
! ton that the right SO to do was acquired in
pursuance of the special act. If the city may
under its charter grade a street and make a
! fill or embankment, Of a height such as
that the earth shall necessarily
extend beyond the limits of the street in or
der to support it, it is competent for the
| legislature to provide in and out of the char
ter proceedings for the acquisition of such
| rights as were authorized in this case. The
| necessary right or easement was acquired in
accordance with the provisions of sec. 5, act
| of 1881, saving to the land owner his right
| to the use of the land AUDITING on the street
as graded. 1t is not material that the land
was mortgagcd. 1t is not suggested that the
|
proyement and the city appeared to have
complied with the statute in proceeding
| with it.
We do not see, therefore, that the rclator
is in position to object on this ground.
ga n. Y, 313.
(5) 1t is further insisted that the as
sessment is unauthorized because the city
changed the grade and improved Seventh
street TO Minnehaha avenue only, while the
act of 1881 contemplated change in the
grade and the establishment OF the perma-
nent grade TO the city limits. We have not
failed TO give due consideration to this OBJ
| lection, and are Of the opinion that for the
| purposes of this improvement so much was
left to the judgment and discretion CT the
| council as to the extent of the grading to be
done in connection thereto that we are I'M
| able to say that the failure to fix such grade
| beyond the intersection Of Seventh street
and Minnehaha avenue. About ten blocks
east of Phalens creek is material to the value
| of the assessment.
By section 2, above referred to, the change
Of grade was to be made with reference TO
| the improvement named in the first section,
and the city council was not confined to the
grading Of that street in obtaining material
! for the embankment required to be made,
and earth therefor was undoubtedly found
more cheaply, as the evidence clearly shows,
much nearer than on the easterly portion Of
! Seventh street.
1t will be presumed in favor Of the valid
| ity Of their proceedings in the premises that
the grading on that street proceeded as far
as was proper for the work. The change Of
/ the grade and establishment Of the perma-
nent grade was required TO be a separate and
Independent proceeding under the charter,
and had 10 further connection with the i'm
provemcnt than was essential, and the ex-
pense could not be charged in the assess-
| nent but when required must constitute a