State ex rel. Secombe v. Board of Park Commissioners , 33 Minn. 524 ( 1885 )

Berry, J.

Subdivision 9, section 4, of the Minneapolis park act, {Sp. Laws, 1883, c. 281,) enacts that “the damages appraised” for property proposed to be taken for parks “shall be paid out of the park fund, and shall be paid, or tendered, or deposited and set apart in the treasury of said city to and for the use of the parties entitled thereto, within six months from the confirmation of such appraisement and report” of the appraisers appointed by the board of park commissioners. This is the only provision which we find in the act touching the payment of damages,awarded as compensation for property taken upon condemnation, and for this reason we think it must be held applicable to all damages, whether appraised by the appraisers before mentioned, or by such as may, upon appeal, be appointed by the district court.

The consequence is that all damages appraised, — that is to say, whose appraisement is, as in the present instance, completed (no matter how) within six months from the confirmation spoken of,— become due at the end of that time, unless this result is controlled or prevented by some other provision of the act. As to when damages become due whose appraisement is not completed within the six months, by reason of an appeal or some other cause, we need not at this time inquire.

But the counsel for the board contends that the provision cited from the act is qualified and controlled by the last clause of subdivision 12, section 4, which enacts that “the board of park commissioners shall have the right, at any time during the pendency of any proceedings for the improvements authorized in this act, or at any time within 30 days after the final order of the court on any appeal from such proceedings, to abandon all such proceedings whenever it shall deem it for the interest of the city to do so.”

The counsel for the board of commissioners makes a very ingenious argument for the purpose of showing that the proceedings for acquiring land for a given park are treated by the act, and should be regarded by the courts, as a single whole, and that, until there is a final appraisement or determination of the damages to be paid with reference to each and every parcel of land proposed to be taken for such park, the proceedings for the improvements contemplated in establishing such park are pending within the meaning of the act. So that, if several appeals are taken, and, though some are determined, (as, for instance, by a reappraisement under the direction of the district court,) others remain undetermined, the right of abandonment as to all continues until 30 days after the final order of the court upon the appeal last determined. If this is not the exact form of the counsel’s argument, we think it the fair effect of it.

The argument appears to us rather to show what the act ought to he, to fully carry out its general purpose and insure its success, than what it is. We have been unable to give the provision as to abandonment the “equitable construction” for which the counsel contends, or to avoid the result, however undesirable, that this provision does not qualify or control that which requires payment of damages within six months after confirmation, to the extent claimed. By the fair reading of the act, as we interpret it, the proceedings are, as respects each parcel of land proposed to be taken, or each owner, as the case may be, several; and the right of one owner to payment of his appraised damages does not depend upon the right of another to payment, or upon the action of the authorities in regard to such other. See Park Act, Sp. Laws 1883, c. 281, § 2 and § 4, subd. 4, 7, 9, 10, 11, 12.

While it may be that where the six months had expired before “the final order of the court” in a particular appeal was made, that fact would operate to extend the time when payment of damages would be due to the particular appellant to a time 30 days after the making of such order, though after the expiration of the six months, the present case does not necessarily require us to determine whether it would or not.

In this case the confirmation was made March 22d; the final order on appeal July 28th; the thirty days after the order expired August 27th; while the six months from the date of the confirmation did not expire until September 22d. In this instance the damages were therefore appraised, that is to say, their appraisement was fully completed, and the 30 days after final order on appeal had elapsed, before the expiration of the six months. We can see no reason why the six-months clause should not be applicable to such a case.

This conclusion is of course based upon the act as originally appearing in Sp. Laws 1883, c. 281, and without any reference to the amendments of 1885, which seem to have remedied some of the defects of the original act as respects the right of abandonment, but are not applicable to this case.

Order affirmed.