St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1890-10-09
JUDGE M'CLUER REVERSED

In Condemnation Proceeding
Against the City of saltwater.
The following decision was handed
down in the supreme court yesterday.
Minerva McKusick respondent. VS.. The City
OF saltwater, appellant. Judgment re-
versed. VASpERBURGH. J.
Syllabus: In condemnation proceed
lngs, where part of distinct tract or
parcel of land is taken for public use,
special benefits may be considered. be-
cause the issue is as to the extent of the
damage. The legislature may, in city
icharter, authorize proceedings for
widening. opening and grading street
to be conducted together as one inn
provement, and the same commission
erS who assess benefits for such i'm
provement may also be authorized to
assess the compensation or damages for
lands apportioned or injurIousIy affect
ed, and embrace the result of each
proceeding in their report. But the
condemnation proceeding is in itself
separate matter, aud only such benefits
can be considered and allowed therein
as pertain to that branch of the improve
ment. And for the damages awarded
the land owned in such proceeding, he
is entitled to be paid in money. He can
same against benefits assessed for the
entire improvement. A clause OF pro-
vision in city charter requiring
the commissioners, after making a
separate award of compensation
for land taken or injuriously
affected and an assessment for benefits
for the cost and expense of the improve
ment, to deduct from such assessment
as respects particular lots or parcels the
amounts so awarded for lands con-
demned or injured, is unconstitutional
and void. But when the remaining
provisions are sufficient for the lawful
prosecution of the improvement, an
award and assessment may be made in
pursuance thereof, and the clause pro-
vIdlDg for such deductions or Offset may
be rejected without impairing the
validity of the proceedings. And when
a city charter provides that a report of
their proceedings by such commissioners
should be filed, and fornotice and OppOr-
tunityto all parties interested to be heard
and to file objections to such report. be-
fore finally acted Oh by the city council,
with authority 10 the latter to confirm
or annul the award or assessment, OF
send the same back to the same COM
missloners. saving to aggrieyed parties
right of appeal to the district court,
held that any objections to the form of
the report, or proceedings of the COM
missioners in making the award or as
sesSment, must be taken in the manner
pointed out by the. charter OF they will
be deemed waived.
Under clause in such charter pro-
yIdIng that no omission, informally or
lrregularlty in or preliminary to max
ing any special assessment shall affect
the validity OF the same where the as
seSSment roll has been adopted by the
city council, and requiring such objec-
tions to be taken in the form and at the
time prescribed by the charter, held
that all omission by the council to make
preliminary estimate of the cost of
proposed improvement before the as
SeSSment is made must be treated as
an irregularity merely andthe objection
must be taken in the same proceeding.
Under the charter of the city of Still
water residents and freedolders of the
city may lawfully serve as commissioners
to award damages and assess benefits
for public improvements. When the
proposition of the proprietors of a news
paper to publish the ordinances etc., of
the city, was accepted and such paper
declared to be the official paper of the
city, and is thereafter treated as such,
and notices and proceedings under the
charter are duly and regularly pub
liShed therein, the omission to comply
with a provision of the charter requir-
ing the contract between the city and
the publishers to be reduced to writing,
and bond to be executed by the latter.
will not invalidate such published
notices and proceedings.