Lumbermen's Insurance v. City of St. Paul
Lumbermen's Insurance v. City of St. Paul
Opinion of the Court
On a former appeal of this case (82 Minn. 497, 85 N. W. 525) an order of the court below refusing plaintiffs’ motion for a new trial was reversed, with directions to the court below to modify its conclusions of law in accordance with the opinion of this court, and to order judgment for plaintiffs as their interests might appear, with leave, however, to the defendant to apply for a new trial if so advised. The character of the litigation will be seen upon reading that opinion. Subsequently the defendant presented a settled case, then moved to set aside the findings and decision and for a new trial, and the motion was granted. The present appeal by plaintiffs is from the order granting this motion. The record now presented contains all of the testimony, in addition to what was before us on the former appeal.
In the first paragraph of the former opinion the court discussed whether or not there was a valid assessment and award of damages, and stated that we were asked to hold that, although the board of public works acquired jurisdiction to make an assessment and award for the easement in question, it never did make one in accordance with the description of the premises as found in the notice of the board that an assessment and award would be made.
The court further said: “The assessment itself may have been indefinite and void, but it is not contained in the record before this court, and the finding of the court must be given full force and effect. So far as appears, no other claim for damages was made by the Wagener estate, and, when the findings are all examined with reference to the award, only one result is possible.”
It is obvious that but one question was left undetermined at the former appeal, and that is the present inquiry, — was the assessment itself indefinite and void? Or, to state it more to the point, was the description in the condemnation proceedings so indefinite and uncertain as to render the entire proceedings null and void?
By Sp. Laws 1887, p. 335, § 7,
“In which notice they shall specify what such assessment is to be for, and they shall describe the land to be condemned as near as may be done by general description, and all persons interested in any such improvement shall have the right to be present and be heard.”
Section 9 provides that the board,
“In making said assessment, shall determine and appraise to the owner or owners the value of the real estate appropriated for the improvements, and the damages arising to them respectively from the condemnation thereof,”
—the damages to be arrived at after deducting the benefits,
“Also a strip thirty feet in width extending from the south end of said culvert to the north end of said culvert, the center line of which strip shall be the center line of said culvert.”
There was no doubt concerning the exact location of the center line of the strip in the notice. It is true that in what is called the “assessment sheet” and in the notice of confirmation (said notice being prescribed by section 15 [Sp. Laws 1887, page 337]
The sufficiency and definiteness of an assessment and award are to be ascertained and determined from an examination of the condemnation proceedings, taken as a whole; and if the property is sufficiently described in the order of the council and the notice required to be given and published by section 8, and this notice is properly referred to in the assessment sheet or award, the charter provisions are complied with. The sufficiency of condemnation proceedings is not to be determined and disposed of by an examination of a single instrument, — such, for example, as the assessment sheet or the order of confirmation. But the entire record, or what may be called the “roll of the proceedings,” is open to inspection. Goodrich v. City, 123 Mich. 559, 82 N. W. 255. And this record or roll includes the order passed by the common council directing the
Now, in the assessment sheet or award, introduced in evidence, and now before us for the first time, it is. recited that the assessment or award of damages to the estate of John Wagener for the condemnation and taking of an easement in the land therein described is “in accordance with the order of the common council of said city approved August 15, 1892,” — the order upon which was predicated the notice of assessment. The order of the council was on file with the clerk offthe board as a part of the proceedings, and so was the notice of assessment. If necessary, a glance at either of these instruments would locate the center line of -the appropriated strip. ' That is certain which can be made certain; and for the application of this maxim in a case where section 8 was under discussion, see Kuschke v. City of St. Paul, 45 Minn. 225, 47 N. W. 786. A paper so referred to and described in a written instrument that it may be identified beyond all reasonable doubt may be, by such reference, made a part of the instrument, as if incorporated into the body of it. In re Board of Commrs. of Washington Park, 52 N. Y. 131.. It is not even necessary that the paper referred to should be annexed to, or deposited in the same place with, the instrument of which it is made a part by reference. It is the reference to tbe paper by proper description and identification, in a.manner and by words indicating an intent to make it a part of the instrument, that effects the incorporation of it for all purposes. Tonnele v. Hall, 4 N. Y. 140.
Our conclusion is that the case is no different on this appeal from what it was on the former. The findings of fact are not inaccurate or incomplete, and the testimony has not made it appear that the assessment or award of damages was indefinite or void.
■ We have not considered the claim made by counsel for the plaintiffs that by defendant’s answer it stood admitted that all the proceedings for the condemnation of this property were regular, and that a valid assessment or award was made by the board of public works, which valid assessment or award was subsequently confirmed by the board. It has been unnecessary. Nor has it been necessary to discuss other points made by counsel for defendant. They are without merit. ■
Order reversed, and upon the case being remanded the court below will modify its conclusions of law in conformity to this opinion, and cause judgment to be entered for plaintiffs in accordance with their respective interests; such interests to be made to appear in proper form.
St. Paul Code 1893, § 100.
St. Paul Code 1893, § 108.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.