Foote v. City of Crosby

YETKA, Justice

(dissenting).

The majority refers to our prior decisions holding that trees may not be removed from city streets when their removal would be unnecessary, when the streets are unusable or have been abandoned, or when the trees do not present a clear obstruction to public travel. From this collection of cases, the majority concludes that the City of Crosby is entitled to remove four elm trees from the Footes’ property without paying any compensation. In reaching this conclusion, the majority ignores an important line of cases that should compel us to affirm the trial court’s order in this case. For this reason, I dissent.

Our constitution mandates that “[pjrivate property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.” Minn.Const. art. I, § 13. If the Footes’ four elm trees are private property and if the City of Crosby’s new street is for the public use, then our constitution requires that the city pay for destruction of these trees. Such a result is not without precedent.

Once a public body establishes a street, owners of abutting property have a right to rely on the permanence of the street. If *887use of the street is altered, or the grade of the street is changed so that adjacent property is damaged, the property owner is entitled to compensation. Cf. Johnson Bros. Grocery v. State, 304 Minn. 75, 229 N.W.2d 504 (1975) (awarding compensation because conversion of road into limited access freeway destroyed public access to business resulting in damage). We recognized the following rule in Sallden v. City of Little Falls, 102 Minn. 358, 113 N.W. 884 (1907):

Under [constitutional provisions stating that private property shall not be taken or damaged for public use without just compensation] the authorities are nearly uniform in holding the municipality liable for consequential damages caused by a change from an established grade; i. e., where a grade is once established by public authority, and private property is improved with reference thereto, a subsequent alteration or change in that grade to the damage of abutting property renders the municipality liable.

Id. at 359-60, 113 N.W. at 884 (emphasis added); see Maguire v. Village of Crosby, 178 Minn. 144, 146, 226 N.W. 398, 399 (1929); Sather v. City of Duluth, 123 Minn. 300, 301, 143 N.W. 906, 906 (1913); Wallenberg v. City of Minneapolis, 111 Minn. 471, 476, 127 N.W. 422, 423, on reargument, 111 Minn. 477, 478-79, 127 N.W. 856, 856 (1910) (per curiam).

Cross Avenue has an existing grade. Because the trees stand in the boulevard between the street and the sidewalk and because they were planted after the street was platted, the trees presumably were planted as improvements to the property made with reference to the existing grade. It is the proposed change in grade of Cross Avenue that will require the trees to be destroyed. Thus, this case fits squarely within the Sallden rule. The Footes should be entitled to consequential damages from the City of Crosby for the destruction of their trees.

Consequential damages include any reduction in value of the abutting land. See Victor Co. v. State, 290 Minn. 40, 44, 186 N.W.2d 168, 171-72 (1971); 2A Nichols on Eminent Domain § 6.4432[2], at 6-180 to -181 (3d rev. ed. 1969). The destruction of trees caused by a change of grade is included within the damages that are recoverable. See id. § 6.4441[11].

The majority attempts to distinguish Sallden, claiming that compensation is proper only for damage outside the line of the street, easement. Sallden cannot be interpreted that way. The language of that case makes it clear that the focus should be on property improvements destroyed by a change in the established grade, and that is exactly what is presented in this case. See, e. g., McEachin v. City of Tuscaloosa, 164 Ala. 263, 51 So. 153 (1909) (allowing compensation even though city owned tree that was destroyed by street improvement); Cook v. City of Ansonia, 66 Conn. 413, 34 A. 183 (1895); Seaman v. Borough of Washington, 172 Pa. 467, 33 A. 756 (1896).

Destruction of trees to widen a city street is no less a taking than demolition of a private residence. Once a street is paved, owners of abutting property have a right to expect that the grade will be permanent and their future improvements will not be damaged or destroyed. The majority’s contrary holding breaks away from more than 70 years of established precedent and runs afoul of the clear language of our constitution. Even when the grade of a city street has remained unchanged for half a century, property owners will now have to bear all of the risks of improving their land. If their improvements interfere with future grading of the street, they might bear tremendous losses, yet the public body will not compensate them for the damage it has caused.