The Redwood gazette., 1936-04-09
JudgeDecides
Commissioner
Over-Stepped
TAXPAYERS WIN FIRST
ROUND IN SUIT ON
SETTLEMENT
VALUE OF PROPERTY is
CALLED IMMATERIAL
BY ENERSEN

DlSputlng the power of the state
highway commissioner, Judge AL
bert H. Emerson of Redwood coun-
|ty district court gave a decision
Monday in favor of the three Red
wood Falls taxpayers in the in
junction proceedings brought by
them to prevent the acquisition by
the state of the Mrs. Elsie M. Ap-
pleton property for $4,000. The
decision was filed Tuesday MORN
ing in the office of Clerk of Court
Frank Baldwin.
The judgment was contained in
a 10 page folio summarizing the
evidence presented during the pro-
Iceedings, setting forth the judges
conclusions at law and including a
lengthy memorandum in which
Judge Emerson defines his reasons
for reaching the decision. The
verdict came month and 10 days
following the close of the two day
hearing, February II and 1S.
Leon H. Brown, one of the at
torneys on Mrs. Appleton's legal
staff, stated that the case will un-
doubtedly be carried, on an appeal
by the highway department to the
state supreme court but that it
may not be considered by Mime
sofas highest tribunal until Sept
ember.
Prevents Payment
The decision enjoins N. w. Els
berg, highway commissioner, Stat
ford King, state auditor and Ju-
Illus A. Schmahl, state treasurer,
from issuing any voucher or war;
rant upon any of the public funds
of the State of Minnesota in
payment of the purchase price"
for Mrs. Appleton's lakeshore lot
in accordance with the stipulations
OF. the settlement.
Judge Enersen's judgment an
nuls completely the acquisition by
the highway department Of the
Appleton property, declaring that
1T is outside the right of way of
highway 10 and constitutes
transgression by Commissioner
Elsberg, of his authority by in
vesting the states money in other
real estate.
The opinion vacates and sets
aside the settlement made between
Mrs. Appleton and the highway
department for the purchase Of
her premises and orders that the
deed she gave when the transac-
tlon was made, be returned to her
and any record of it deleted. Pro-
vision is also included whereby the
petitioners, A. j. White, s. B.
Duea and Herman G. Werder, may
recover from the state the costs
and disbursements for the bring
ing of the suit.
In his memorandum Judge En-
ersen states, "The value of the
property, in my opinion, is not very
material in this proceeding.
have determined the value. Very
briefly l saw the interior Of the
downstairs rooms in company
with Mr.. Murphy Frank w. MUIR
lphy of Wheaton, Mrs. Appleton's
counsel and one of the defendants
in the suit) and Mr.. Brechet e..
D. Brechet of Minneapolis, assist
ant attorney general, representing
the state) and the home is neatly
and pleasantly completed and of
course to suit the taste and ideas
of the owner, but the rather stern
rule in passing upon values of
lman-made improvements to real
|estate does not allow much leeway
for sentiment or individual no.
tions. However, in setting the
value of $4,000, have in mind all
the testimony on the matter but
cannot overlook that very definite
and practical bit of evidence as to
what the state and the owner of
the property seem to have agreed
to be the value for 1885 for taxa
ton purposes, $3,920, as the true
and full value thereof. There is
no evidence of a claim by the state
that that valuation was too low in
1885 when our taxation agencies
agreed on it, nor does the record
disclose any such claim by the
owner when it's value was being
determined. l am aware of GER
tain yardsticks used by taxation
officials in arriving at approx
mate values, SO my decision makes
allowance for that.
Criticises Procedure
'By the action of the parties in
making the contract in this case"
ne continues, "the commissioner
of highways, wanders off the right
of way established by him under
his previous orders, and without
any change or variation thereof,
agrees to purchase for the state
with state money adjacent proper
ty, an act which / feel, he has no
authority to do, especially in view
of the fact that prior thereto,
through the states stipulation
with the property owner, the pro-
ceedings by condemnation had
been invoked. By the contract of
October Is, 1885 (the date when
the $4,000 settlement was reach
edl we find the appraisement by
duly appointed commissioners dis
regarded, the chance to have the
matter passed upon by a jury of
Redwood county on the states ap-
peal, obliterated and the usual