1 Reported in 204 N.W. 934, 205 N.W. 640. Appellant owns a strip of land, in the city of Minneapolis, which is 1,661 feet long, east and west, and approximately 500 feet wide, lying immediately between the right of way of the Chicago, Milwaukee St. Paul Railway Company, on the north, and Twenty-eighth street on the south. The street is 80 feet wide its entire length, except where it abuts upon the tract mentioned, where it is but 40 feet in width. The city determined to widen, open and grade the street so that it would be 80 feet wide its entire length, and suitable for use. To that end, proceedings were commenced in 1923, under the provisions of chapter 20 of the city charter (G.S. 1923, §§ 1552-1556, L. 1911, c. 185, as amended), to acquire an easement in a strip of ground, 40 feet wide, along the south side of appellant's land abutting upon the street. The council appointed commissioners, a plat was filed, cost of improvement estimated and a report filed.
The plan, as indicated upon the map filed and adopted by the council, shows that no land was to be taken except the strip as above indicated. The report of the commissioners, appointed by the council, estimated the total cost of the improvement at $17,497.25 and recommended an assessment of $2.875 per front foot against all property abutting the street. The assessments for benefits and damages were made accordingly. A total net assessment of $4,815.52 for benefits to the remaining portion of appellant's land was made. The appellant objected to the confirmation of the award, which was filed and presented to the council, and by it overruled, which, in effect, affirmed the award. An appeal was taken by the railway company to the district court, where, on June 26, 1924, three commissioners were appointed by the judge to meet, view the premises, hear all proofs offered, de novo, and render their report and award. On July 15 the commission filed its award, assessing appellant's remaining land in the sum of $2,024 for net benefits, and stating therein as follows:
"We do hereby report to the court that after considering said tract and the damages for the taking of a portion of said tract in *Page 229 said proceeding, and considering and estimating the benefits and damages to the remainder of said tract not taken, that we hereby find and determine that the above named appellant and the following described land, to-wit: * * * is by the establishment of said proceeding, benefited in the sum of $2,024.00, and we hereby determine and assess the said sum as the benefits to said appellant and said tract in excess of the damages by reason of the taking of a portion of said tract and damages to the remainder of said tract."
Respondent moved the court for an order confirming the award and allowing compensation for the services of the commissioners. Appellant made a counter motion, to be heard at the same time, asking for an order remanding the award, with instructions to the commission to render a new report, stating specifically the amount which the remaining lands will be benefited by abutting upon a wider thoroughfare, the amount which the appellant will be damaged by the taking of its land, and the amount which the remaining lands will be benefited by the grading of the street, exclusive of benefits arising out of frontage upon a wider street; also the net difference between the two last amounts, and, if the foregoing be denied, then that the whole matter be remanded for specific findings as to the amount which the remaining lands will be benefited by the entire improvement, and the damages to appellant by reason of the taking of its land, and the net difference in the two amounts. The motions were submitted together, each upon the award and an affidavit of the attorney presenting the same. The motion, made on behalf of the city, was granted; the other denied in toto. From such order, the railway company appealed. It also procured a writ of certiorari to have the record reviewed. That the order, confirming the award is appealable is not questioned by respondent, and we think it is an appealable order.
The decisive question presented is whether the benefits to appellant's remaining lands, arising from both improvements, may be offset against the value of the land taken, without a specific finding and statement as to the value of the land taken and the benefits which the opening and grading of the street will be to the remaining *Page 230 lands of the appellant; also whether benefits, arising from the opening and grading of the street, may be offset against the value of the land taken.
We think the appellant should have been apprised of the amount which it was to receive for its land at the time it was to be seized and appropriated. We know of no reason why, in a proceeding to acquire private property for public use, the owner should not be informed as to the value placed upon the property to be taken and the manner in which the same is to be paid for. The decision, in the case of McKusick v. City of Stillwater,44 Minn. 372, 46 N.W. 769, applies. The law there under consideration was the same as that under which the instant proceeding was inaugurated. The improvement was the same — the widening, opening and grading of a public street abutting upon a tract of land, a part of which is to be taken. It was there held that the widening of the street and the grading of the same are essentially separate improvements, though they be incorporated in a single proceeding, and that the damages for the taking of the land with which to widen cannot be offset by the benefits to the remaining land, arising from the grading of the street. It was there held that damages from the taking of the land can be offset only by benefits arising from the taking, for instance, from the widening of the street. In the instant case, the difference between the benefits to the remaining land, derived from the widening, and those flowing from the grading of the street, seem to have been lost sight of. The difference is essential when it comes to the question of offsets.
It requires no argument to demonstrate that a proceeding to condemn and take private property, for public use, is essentially different than a proceeding for the grading of a public street. If the widening of a street is a benefit to an abutting tract of land, a part of which has been taken for that purpose, then such benefit may be properly offset against damages for the taking of a part of such tract, because it comes directly from the same improvement, i.e., the widening of the street. For the same reason, damages to abutting lands, caused by a heavy grade or a deep cut in front of such *Page 231 land, might be offset against an assessment of benefits thereto for the grading and improvement of the street, because they arise out of the same improvement. But, where the benefits, in such a case, flowing from the widening of the street, are not equal in amount to the value of the land taken, the difference must, under the Constitution, be paid in cash or secured.
Under this view of the situation, there must be a new award and a new trial. Further discussion of the matters mentioned in the briefs becomes unnecessary.
Reversed and remanded.
STONE, J., took no part.
AFTER REARGUMENT. On November 13, 1925, the following opinion was filed: