Teick v. Board of Commissioners ( 1866 )

By the Oourt

'"Wilson, Ch. J.

The plaintiff in his complaint

alleges that the defendant was seized of the land in question, and that while he was so seized the defendant, under and by virtue of an act of the Legislature entitled “ An act to locate and open a State road from Yorkville, Carver county, to intersect the St. Paul road, south of Gibson’s, in Bloomington Township, Hennepin county,” approved March 4, 18.63, and without his consent, and against his will, broke and entered the said premises and took and converted and appropriated about six acres thereof to and for the purposes named in said act. That though the plaintiff has often demanded of the said defendant the payment to him of said damages, the defendant has not paid or secured the same or any part thereof. The answer admits that in May and June, 1863, under and by virtue of said act of the Legislature, the defendant broke and entered the premises in the complaint mentioned, and took and converted, and appropriated them to the purpose in the act mentioned, by laying out and opening a road or public highway over the same; and denies every other allegation. The special act under which it is alleged the defendant acted in entering upon said premises, declares that the road designated is thereby established a public highway; and it further provides, that on the filing of the plat and field notes in the office of the Register of Deeds of Carver county, and a copy thereof in the office of the Register of Deeds of Hennepin county, “ the location of said road shall be deemed complete.”

Hntil the map and duplicató were filed in the counties designated, we think there was no valid location of the road, and until such location the Commissioners had no authority to take or condemn the lands over which the road was laid. They could only take the land or an easement in it by a strict pursuance of the requirements of the statute, and as it is neither alleged nor proven, nor found as a fact by the referee, that the map or field notes, or a copy thereof, was filed in Hennepin county, it does not appear that the plaintiff has been divested of Ms title, or that the county is liable for the value of the land. But even if this was not so, the plaintiff could not obtain the relief prayed for in this action. The Legislature, under our Constitution, have not the power to take private property for public use without making provision for a just compensation therefor, to be first paid or secured to the owner. See Pierce on Kail ways, 171 and cases cited; Boston R. R. Co. v. Salem Bank, 2 Gray, 37.

When compensation is provided for, it must be ascertained and obtained in accordance with the course prescribed by the statute. See Redfield on Railways, 173 (2d Ed.) and note, and cases cited in note ; Stevens v. Middlesex Canal, 12 Mass. 468; Dodge v. Co. Com., 3 Met. 381-2. In no point of view, therefore, can the plaintiff in this action recover the value of the land over which the road was- laid; and as this is the principal relief prayed for, the judgment must be reversed and a new trial ordered. A “ case ” was made and settled below, and comes up here as a part of the judgment roll. The plaintiff’s counsel objects to this, and asks to have it stricken from the record. We think that the motion should not be allowed. The fact that the “ case ” is attached to the roll, is sufficient evidence that it was attached at the request of one of the parties, which is all that is necessary. Comp. Stat. 566, Sec. 75. The case, when thus attached, became part of the record, and it is the duty of this court, on appeal, to review any ruling or order (excepted to below) apparent on the record, and necessarily affecting the judgment. The decision or report of a referee is to be reviewed in the same manner as the decision of the court.

Judgment of the court below reversed, and new trial ordered.