Warner v. Commissioners of Hennepin County

[141] By the Court Emmett, C. J. We have no hesitation in saying that, in our opinion, an issue of fact concerning the filing of the plat and field notes of the survey, mentioned in the special act referred to in the ajjplication, is fairly raised by the Defendants in the affidavits read at the hearing; and this issue must be regarded as material, because in no event could the Defendants be compelled to act in the manner desired by the applicant, until the road had first been established or its location completed. So long, therefore, as so important a fact as the location of the road is disputed, we cannot say that the Defendants can give no valid excuse for not opening it, and we must, in consequence, refuse the writ applied for. This not unlooked for tirm of the case renders it unnecessary to consider the remaining questions raised on the argument, some of which, however, are too important to be determined except upon the fullest argument and most thorough investigation. But we cannot forbear remarking that there was one proposition involved in the discussion which appeared to be well sustained by reason, and commended itself very strongly to the approval of our judgment. We refer to the position taken by- the Plaintiff’s counsel — that, where the Legislature by special act authorizes or requires a public road or highway to be made or established, and provides no means of paying for the same, or for ascertaining or paying the damages occasioned thereby, or for the property taken, the reasonable presumption is, that it is intended that such damages shall be ascertained, assessed and paid, and such improvements made, under the provisions of the general laws appertaining to the subject.