Judge 1. M. Olsen Files

Decision Against Proposed

Minnesota Street

Improvement, Monday.

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CASE MAY BE

APPEALED STATE

SUPREME COURT

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Interpretations of Statute Governing Petitions for Public Works Given

in Memorandum.

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In a decision, dated Monday of this week, and filed with Clerk of Court Carl P. Manderfeld, Judge I. M. Olsen of this city has granted a writ of injunction against the city of New Ulm, the mayor, city clerk, city councilors and city engineer, restraining them from letting any contract, or taking any further action in regard to the proposed paving of Minnesota street, between Third and Eighth North streets, under the original petition.

May Appeal Case.

It is possible that an appeal will be taken, by the city, to the state supreme court, from the decision of Judge Olsen. The action was brought by William Fesenmaier, Anton Herlick, Franz Altmann, Simon Woratschka, Robert Meid1, Joseph Beyer, Paul Kuehlbach, R. F. Kruggel and William Emmerich. They were represented by the local law firm of Mueller & Erickson, while City Attorney Henry N. Somsen acted as counsel for the city and city officials.

Preliminary Proceedings.

Reciting the preliminary proceedings in the matter, as set forth in the pleadings, stipulations, evidence and arguments presented to the court for consideration, Judge Olsen states that the paving petition was filed with City Clerk William P. Backer, August 24, 1925, to be presented to the city council, under the provisions of Sections 1815-1828, G. S. 1923.

Petitioners Withdraw.

A hearing in the matter of the paving petition was set for, and subsequently held by the council on September 14, 1925, but before any action was taken on the petition, six of the petitioners presented to the council their written withdrawal and recall of their names and signatures. However, the council failed to give these withdrawals any consideration or effect, but ordered the improvement petitioned for, notwithstanding.

60 Own 70 Lots.

Along the five blocks included in the proposed paving, there are 70 lots abutting upon the part of the street to be improved, and the court finds there are 60 separate and distinct titles or ownerships covering the 70 lots. There are seven lots or tracts, where title has vested in heirs of deceased persons, the number of each heir running from four to 18 in the different cases, and the total number of persons having ownership in those seven tracts is 54. Among these cases are three life estates. In finding that there are 60 separate ownerships, the court counted each of these seven tracts as one ownership.

Had No Authority.

The petition for the improvement has 24 signatures, three of whom–Charles Marti, Leo A. Sprenger and White Eagle Oil Co.-owned no abut-ting property, and their names must be deducted, according to the court. The name of the board of education of Independent School District No. 1 was signed to the petition without proper authority, Judge Olsen finds, and, therefore, should be deducted. Prima facie the treasurer of the district has no authority to act for the district in a case of this kind, and no authority in him to sign the petition is shown.

20 Signers Remain.

This leaves 20 names on the petition. Two of these signers–Philip Kaufenberg and Angeline Mertz-are owners of life estates only, and the fee of their respective lots are owned by a number of other persons. Both of these life tenants are among the six petitioners, who withdrew their names.

Had Right to Withdraw.

That the six petitioners, who presented their withdrawals from the petition before the council on September 14, 1925, had the right so to do,and that thereby their names and signatures were withdrawn and eliminated from the petition, is the opinion of Judge Olsen. Thereby, the number of abutting property owners, whose names were signed to the petition, was reduced to 14.

Conclusions of Law.

As conclusions of law, the court finds: First, that the petition in question, at the time it was first presented to the council on August 24, 1925, was signed by 25 per cent of the property owners abutting upon the proposed improvement.

Second, that on September 14,1925,and before any action had been taken by the city council upon the petition,six of the signers thereof duly with-drew their names from the petition,and had the right so to do. That there-by the number of petitioners was reduced to less than 25 per cent of the property owners abutting upon the proposed improvement, and then and thereupon the city council had no authority to proceed further with or pursuant to the petition

Order of the Court.

“It is, therefore, ordered and decreed, that a writ of injunction issue herein as prayed for, enjoining the defendant, the city of New Ulm, and the defendants, the mayor, city clerk, city council and city engineer of the city of New Ulm, from letting any contract for the proposed improvement,or taking any further action in reference to said proposed improvement under or pursuant to the petition therefor, referred to in the foregoing findings.

“Let such writ issue.

“I.M. OLSEN,

“District Judge.”

In his memorandum, attached to the decision of the paving case, Judge Olsen states:

“The question of the right of petitioners to withdraw their names from the petition has been considered in the memorandum to the order granting the temporary writ.

“Interesting questions as to the interpretation of the language of Section 1815, G. S. 1923, now present themselves. The words used are: when petitioned for by 25 per cent of the property owners abutting upon any street or alley.

“It seems reasonably clear that the statute refers to the number of owners, rather than the amount of frontage.

“Section 1201, in reference to vacating streets, uses this language: ‘on petition of a majority of the owners of land abutting on any street or alley.’

“In speaking of this provision,the court says, in Tiedt vs. Village, 129 Minn. 259: ‘The language of the statute is clear, . . . the petition of a majority of the owners of land abutting on the ‘part thereof’ proposed to be vacated gives the council jurisdiction.’

Language Is Identical.

“Section 1545, the language used is,on petition of ‘a majority of the owners of property fronting upon any street.

“In Section 1779, the language used Is, on petition of a majority of the owners of property fronting on the street.’

“In Section 1874, the language used is, on petition of ‘a majority of the owners of the property fronting on the street.’

Distinction Recognized.

“That the legislature recognizes a distinction between percentage or majority of owners and proportion of frontage is shown by such provisions as Section 1205, where the language used is: ‘upon petition therefor, signed by a majority of all owners of real estate bounding both sides, and by owners of at least one-half of the frontage of the street, or part of street, to be improved.'”And Section 1907, which says:’ upon petition of the owners of more than one-half of the property affected.’

“But, in computing the number of owners of the lots, some difficulty is encountered. In the present case there are some nine or more instances where a particular lot or tract is owned jointly by two or more persons. Shall the owners of each such tract be considered as a unit and counted as one, or shall each joint owner be counted? If each joint owner be counted, then there are some 110 or more owners, and the petition clearly insufficient. If each distinct title or ownership be counted as a unit, irrespective of the number of joint owners of any given tract, then there are 60 owners, and the petition is sufficient, unless effect be given to the withdrawals.

Each Title a Unit.

“The decision is made on the basis that each distinct title or ownership may be counted as a unit, irrespective of the number of joint owners in any given tract, and that the withdrawal of names was effective and reduced the number of petitioners below the required percentage. The question of the status of life estates is interesting, but does not affect the result in any event.

Withdrawals Deciding Factor.

“If the frontage rule were to be applied, then the result would be that, if the withdrawals are given effect, then the frontage represented on the petition is less than 25 per cent; but, if the withdrawals are held ineffective, then the petition represents more than 25 per cent of the frontage.”

Brown County Journal

April 2, 1926