The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1900-10-25
NAY YNjA|E THE HVhE
CORPORATION ATTORNEY MARK
HAM SUBMITS A. WRITTEN
OPINION
QUESTION OF COMPENSATION
Surrender of Public Easement Must
Be Accompanied b9 Reasonable
Return-Movints Of MfISvau- aosFi
kce FreigAn45SIaedS-4 .s.-...s5l

eQ pdTuoS. Corporations Attorney Mark
ham presented his opinion, which was
to the effect that the council might va
cate the desired levee.
1t being admitted on all hands that
the request of the depot. company IS rea-
sonahle, the question turned on just
what precise privileges should be allow
ed, and what should be the compensa-
ton to the city for the rights. The point
was made that at all costs the city ought
to keep what rights were possible along
the levee which would be compatible
with the request of the petitioners With
this end IN view itswas considered Deces-
sary that a committee wait on the off,
Gals of the Milwaukee road, see upon
what terms they would. allow their pres
ent freight depots to be moved q block
further down stream than they are To-
Gated at present.
Mr.. Markhams opinion may be sunamed
up as follows: The legislature have
vested power In the council to Vacate
public grounds, and while the question
has brought up before he is of the belief
that the levee is, embraced in. the term
public grounds. The power Of the Tegis-
lature to delegate that power has never
been seriously questioned. The former
opinion stating that the council did not
have power to lease under the terms Of
the dedication is adhered to. But it is
possible to surrender the trust. and aban-
don the use for which the property was
dedicated. AZ ~s.za...
Senator Stevens raised the point
whether, on the surrender of the trust,
the property would .reyert back to the
abutting property owner, as In case OF a
highway, to which the levee.. has just
been compared. In that event 1t would
become necessary to fix the eompensa-
ton before the trust was surrendered.
Mr.. Markham replied that 1t was his
impression that such was the case, but
that he was not prepared to pass on the
question without looking 1t, Hp,z,e .,.,z, ~
The proposition of moving the present
incoming freight depot eofothe milwaukee,
read as far down the river as Wacouta
street was discussed at lengtll: Insease=
the Milwaukee consents 1t is proposed
to allow the railroads the necessary
width to run the proposed. tracks past
Sihley street, and to reserve the outer
fifty feet for a public roadway to reach
the Milwaukee depots and for public use.
The river side may be used for deck pllr-
poses, which will provide more room
than the city can ever need. These
changes are to. extend eonlYi between 4Sib--
ley and Wacouta streets. Below that
point the questio will be- one between
the Milwaukee road and the Union
depot company.
Chairman Ulmer, of the committee on
streets of the board of aldermen, and
Chairman Craig of the assembly COM
mittee on streets; Senator Stevens, of
the Diamond Joe interests, the corpora
attorney, the city engineer, Attorney
Hadley of the Union Depot company,
and C. p Moves, representing the COM
mercial interests, were selected as a
committee to confer with the Milwau-
kee road. They hope to secure the as
sent of the Milwaukee to the moving of
their freight houses.
Members Of the council Still - 81 Kate
their determination to vote, against any
vacation proposition which does not
carry with it some step toward the wild
ening of Sibley street. The Milwaukee,
company is said to own the, property
just opposite the. UNION depot which; 1t
would be necessary to have before the
city could widen the street at That point.
Mr.. MARKHADFs4 OPINION. ,
To the Joint Committee ON Streets,
Common Council Gentlemen i have
carefully examined the authorities bear
ing upon the question submitted by you
for my opinion with reference to the ap-
plication of the st. Paul Union Depot
company for the vacation of the PUBLIC
levee on the east bank of the Mississippi
river, between Sibley and Broadway
streets.
council shall have sole and exclusive
power to vacate or discontinue public
grounds, streets, alleys and highways
within the city, This power, which was
of 1858, has been exercised from time to
time, SO far as it applies to streets. alleys
and highways within the city. The au-
thority of the legislature to exercise the
power of vacation, or to delegate the ex-
ercise of such power to municipalities,
has been sustained by the highest court
in many of the state. | have found no
case in which the right Of the state leg
lslature to exercise this power has been
denied or seriously questioned. 1t has
been suggested, however, that the exer-
else of the power of vacation has lot
been extended to the vacation ef1Stea IL
boat landings or public leyees; and also,
it has been suggested that If We assume
the power of the legiSla ture to authorize
guage contained in our charter is not
broad enough to eonfer-upon the common
council the right to vaeate levees and
steamboat landings, within the city.
These suggestions are both based upon
the theory that there is a substantial
difference in the character of the trust
lands for streets and highways, and those
dedicated for steamboat landings or pub
lie leveeS. l have not been able to find
any adjudged case in. which this distinc-
ton has been made or suggested, and /
am unable, on principle, to, see why any
such distinction should exist. In each
case the owner of the land grants to the
public the right to use the property for
specified public purpose. The rights
and duties of the municipality in the ex-
eeution of the trust imposed by. The grant
or dedication are the same. So long as
this trust relation IS, sustained, the land
cannot in either case, be used for any
purpose inconsistent with the purposes
of the grant or dedication, but in each
case it is competent for the public au-
thorities, acting under the sanction of
the legislative department, of The state
government to surrender the trust and
abandon the use, for which the property
loo i.lo-
has authorized the common council of the
city of St Paul to vacate or discontinue
public grounds, streets, alleys and high
as used In this connection is broad
enough to include levees and steamboat
landings, and does INCLUDE them. 1t does
not occur to me that any useful purpose
would be served by any lengthy discus
sion or citation of authorities It is suffi-
Gent to say that / have, with great
care, examined various authorities, as
wen as the history of the legislation au-
thorizing the vacation Of streets. leyees
and pubic grounds, now contained In our
charter. and while much might be said
in support of the contrary view. I have
arrived at the conclusion that it Is whit,
The power Of the common council, actfne
under and in pursuance Of the charter
provisions, to yaeate this levee and sir
| render the public easement therein upon
such terms and conditions as shall he
| conducive to the public interest and wei.
fare.
MAY vACATE PUBLIC EASEMENT.
In a recent opinion given to. your com.
mittee, expressed the view that this
| property having been, dedicated to a. pub.
lie use, 1t was not within the power OF
the common council, SO long as the trusi
relation thereby created remains in force
by any grant or leases thereof to diver
that for which it was originally dedicated
1t is il we'll established principle of Law
that If grant of land is made for 6
specific and limited purpose the subject Of
different one, and that any attempted al.
version thereof from the purpose of the
original dedication is unauthorized anC
can be restrained at the suit of the donor
or any other person whose property