St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1891-07-18

| termination of the legislature is not conclus-
! i've upon the courts But when the use is
public the necessity or expediency of APP
| propriating any particular property Is
| not a subject of judicial cognizance.
| Consequently. if in the legislative
! Judgment it is expedient to do so, it has the
power expressly to authorize q municipal
| corporation compulsOrly TO acquire the alb
solute fee simple to lands of private persons
| condemned for street or any other public
| purpose The authorities are so numerous
! and uniform TO this effect that an extended
| citation of them is unne cessary. See, now
| ever, Dillon, Nun. Corp, section $50; Cooley,
| Const Lin, 6SS: Lewis, En-. Domain. "a;
| Elliott. Roads and Streets, 172; Mills. En-.
| Domain, sections 50 and 81; Boom Co. VS..
| Patterson. 9S L. s., 1895; Sweet VS.. Ry. Co.,
70 n. Y. 2939
1t IS often laid down as the law that the
taking of property must always be limited 10
| the necessity of the case, and consequently
no more can be appropriated in any IN
stance than is needed for the particular
use for which the appropriation is made.
But il will be found that this is almost in
variably said, not in discussing the extent OF
the power of the legislature, but with refer
ence to the construction of statutes granting
authority to exercise the right of eminent
domain, and where the authority to take
certain quantity Of land, or particular es-
tate therein. depended not upon an express
grant of power to do so. but upon the eX-
| istence of an alleged necessity, from which
| the disputed power is to be implied. This
| distinction is clearly brought out by
| Justice Cornell in NJ. d St. P Ry.
| Co. VS.. Faribault, % Mimi, 1877. Upon
| the principle that statutes comforting COM
| pulsory powers to take private property are
| to be strictly construed. it follows that when
| the estate or interest to be taken is not de-
| fined by the legislature, only such an estate
| or interest can be taken as is necessary TO
accomplish the purpose III view, ana When
an easment is sufficient no greater estate can
| be taken. 1t is on this principle that
| where the legislature has authorized the tax
| ing Of land for the purposes of streets, with
| out defining the estate that may be taken, or
| expressly authorizing the taking OF the Zee,
| it is held that only an easement can be taken,
| This is construed under such statutes to be
| the extent of the grant of authority; but no
| we'll considered case can be found which
| holds that the legislature might not author
! ize the taking Of the fee. if it deemed 1t eX-
| pedient.
1t is perhaps foreign to the present inquiry
| to consider the nature and extent of the title
| which the city of 81. Paul acquires in
| land condemned tor street purposes. But
| Notwithstanding the broad language used in
| the city charter, we think that 1t must be
| construed as only a qualified or terminable
fee, that is. the fee simple for street purposes.
| which gives the city absolute control over
| the land for those purposes, but that
| its title is not proprietary, but what might
| be termed a sovereign or prerogatlVe one.
| which it, as an agency of the state, holds in
| trust for the public for street purposes; and
which it can neither sell nor devote to prl-
| vate use.
Counsel argues that the provision of the
charter auth oriZing the taking of an estate III
| fee for street purposes is in conflict with the
constitutional provisions that no one snail be
| deprived of his property without due process
| of law or without compensation first paid or
| secured, and that all taxes shall be as nearly
| equal as may be, and all property on which
| taxes are to be levied shall have cash Valu-
| alton, etc.
| that how hnnTl
satisfactorily follow counsel S line of reason
| ing in support Of these propositions. but, as
we understand him, his position as to the
first one is that while estate in fee is taken,
only an easement is paid for. There is clearly
nothing in this point, for the charter eX-
| preSslv provides that the board OF pubic
| works shall determine and appraise to the
| owner the value of the real estate approprl-
| ated for the Improvement Under ms the
| measure of compensation must be COM
| mensurate with the nature and extent OF the
| estate or interest of which the owner isde-
| prived. If the fee is taken. the fee must De
paid foT. The point as to taxation seems to
| be- that as assessments for benefits can only
| be made for local Improvements. and as 1t is
only necessary to take an easement in
! land for street purposes, therefore
the taking the Zee Is not LOT
local improvement, consequently, if taken.
no assessment can be levied to pay for 1t.
| This is begging the question and reasoning
| in circle The legislature having author
| lied. as it might the condemnation or the
| fee for the purpose of opening or widening
| street which is a local improvement, pay
| ment for the land taken in fee for that pur-
! pose is as much part of the cost OF the i'm
! provement as would have been payment for
| an easement had that been the interest taken.
IL Some points are made against the val
| iditv of the condemnation proceedings under
| which the land i'll question was TAKEN One
| is that the land proposed to be condemned
| was not described with sufficient certainty
| in no of meeting OF the board of
| public works to make the assessment or
| benefits and damages. The notice is
that the board will meet ito make
an assessment of benefits and dam
ages. etc. arising from the opening
widening and extension of James street from
| Oneida street to Western avenue, in said
| CITY," The land necessary to be
| condemned and taken for said opening. wild
| ,eniug and extension is described as follows,
| 10 wit: All that land not already dedicated
or condemned for public use lying within
the lines of James street produced east from
| Webster street to Western avenue, in the
CITY of St. Paul This is notice that the
street is to be widened between Oneida street
| and Western avenue 10 such width as VIII
| include all the land not already dedicated or
condemned lying within the lines of James
street produced east from Webster street to
| Western avenue. This is q sufficient deScrip-
tion for from 1t the land proposed to be
taken would readily be ascertained by refer
| ence to the boundaries given, which would
|
That is certain which can be made certain.
The notice for Erie street IS similar.
The provision Especial Laws 1885. chapter
z, section 2O) that the time speclhed Tor the
publication of any notice under the city
charter shall commence with the first publ
cation fully covers the objection made to the
length of the notice of the meeting to con-
! firm the assessment. 1t Is also objected that
/ the fifteen DAYS notice of the meeting to
make the assessment and award of benefits
and damages expired two days before the date
of the meeting; the time between the date OF
the first publication and the date OF the
meeting being seventeen days, and not ex-
actly fifteen days, as is claimed 1t should
have been.
The provision of the charter requiring that
fifteen DAYS notice of the meeting shall be
given by three publications means that there
shall be the full time specified from the date
of the first publication TO the time of hear
ing, but not that it shall be that exact num-
Der of days and no more. II the full fifteen
davs' notice is given before the hearing, and
| sufficiently near the date thereof to reason
ably answer the purpose designed to be eff
fected, it fulhlls the requirement Of the
statute.
public works are merely directions TO an ex-
| ecutiye department of the city to carry out
such public improvements as the council
| shall determine to make, and do not come
| within either the letter or spirit OF the pro-
vision of the charter requiring ordinances,
resolutions and bylaws to be published IN
the official paper before they shall take
effect This provision was designed tor the
information of the public, whose conduct is
to be governed by such ordinances and by
laws.
1t is further objected that 1t does not ap-
pear that notice was given that the money
was collected and in the hands of the city
treasurer to pay damages to persons awarded
damages for property taken, which the city
charter requires shall be given before the city
shall have the right TO enter upon or appro
pirate the land condemned.
This was designed as a compliance with
the constitutional requirement. that private
property shall not be taken for public use
without compensation first paid or secured:
and It's enough for present purposes to say
that, as no damages were awarded to the
plaintiffs, the same being fully offset by ben
efits, they are in no position to make this OBJ
lection. The omission, if any, cannot affect
the validity of the condemnation Of theil
property.
The only other objection to the condemna
ton proceedings requiring consideration i!