|
APPLICATION OF BALDWIN
<br />15 N.wsd tat
<br />meandered lake may be vacated
<br />tition of an int -rested property
<br />whether the public interest will
<br />served by such vacation.
<br />Minn. 185
<br />upon pe- is owned by Albert Jacoby, who consented
<br />owner is in writing to the partial vacation of the
<br />bt best street.
<br />3. Judicial notice will be taken of the
<br />character of Lake Minnetonka and the ex-
<br />tensive public use made of the lake for
<br />recreational purposes.
<br />4. The word "useless" in Atinn.St.1941,
<br />§ 505.14 (?Mason St.1927, § 8244), permit-
<br />ting vacation of a street when it is "use-
<br />less for the purpose for which it was laid
<br />out," mast be given its full and unrestricted
<br />meaning.
<br />5. Refusal to set aside a decree vacat-
<br />ing a public street located upon the shores
<br />of Lake Minnetonka upon petition of an ad-
<br />joining owner not personally served with
<br />notice of the vacation proceedings held
<br />erroneous.
<br />Appeal from District Court, Hennepin
<br />County; Levi DI. Hall, Judge.
<br />Proceeding in the matter of th,; applica-
<br />tion of Edward H. Baldwin and Hazel
<br />11aldwin to vacate a portion of Lake Street
<br />located on the north shore of St. Albans
<br />Bay of Lake :Minnetonka, Hennepin Coun-
<br />tv,%%herein a decree was entered as prayed.
<br />Arne Bergren and another subsequently
<br />filed a motion to set aside the decree. From
<br />an order denying the motion Arne Bergren
<br />and another appeal.
<br />Reversed.
<br />'Thomas Tallakson, of Minneapolis, for
<br />appellants.
<br />O. J. Grathwol, of Excelsior, and John-
<br />son, Sands & Brumfield, of Minneapolis,
<br />for respondents.
<br />STREISSGUTH, Justice.
<br />This is a proceeding under Minn.St.1941,
<br />§ 505.14, Mason St.1927, § 8244, for the
<br />vacation of a short stretch of Lake Street
<br />(abmit 150 feet) located on the north shore
<br />of St. Albans Bay of Lake Minnetonka in
<br />Vrcelsior township, Hennepin county, de-
<br />scribed as "All that part of Lake Street ly-
<br />ing hetween the southeasterly line of Coun-
<br />ty Road No. 82 and the southwesterly line
<br />of \\-cst Street extended to the shore of
<br />Lake Minnetonka, Bennett's Addition to
<br />Covington." The petitioners, Edward H.
<br />Baldwin and Hazel Baldwin, who are re-
<br />spondents here, own two lots, with a front-
<br />age of 50 and 51 feet respectively, abutting
<br />on Lake Street, while a third abutting lot
<br />15 N.W.2d-12%
<br />Appellants are the owners of a lake -shore
<br />lot abutting on the same street and lying im-
<br />mediately east of the portion sought to be
<br />vacated. They occupy their property only
<br />daring the summer months of each year
<br />but, during such period, have occasion to
<br />use the portion of Lake Street sought to
<br />he vacated as their most direct connection
<br />with county road No. 82, leading to Minne-
<br />apolis and Excelsior. They can, how-
<br />ever, by a more circuitous route, via West
<br />Street, also reach the county road.
<br />Lake Street was de licated to public use
<br />in 1883 by the plat of Bcrinett's Addition to
<br />Covington, filed in that year. However,
<br />the portion of the street here involved Las
<br />never been graded or otherwise improved
<br />by the township, and its use as a thorough-
<br />fare by the public generally h.is not been
<br />extensive.
<br />On August 14, 1942, on application of the
<br />Baldwins, the district court made an order
<br />fixing September 8 as the date of hearing
<br />on their petition to vacate the portion of
<br />Lake Street which has been describes.
<br />Pursuant to directions contained in the or-
<br />der for hearing, it was duly publishtd and
<br />posted and a copy served upon the chair-
<br />man of the township of Excelsior. The
<br />order did not direct service upon appellants,
<br />and they were not personally served, nor
<br />did they have actual notice of the proceed-
<br />ings until after a decree of vacation was
<br />entered.
<br />When the matter came on to be heard in
<br />d;- •t court no opposition appeared. The
<br />t irc, after hearing the petitioners,
<br />propriate findings, including one
<br />g the language of the petition, viz.:
<br />"'That the portion of said Lake Street so
<br />describer) is useless for the purposes for
<br />which said street was laid out; that all of
<br />the property owners abutting on said por-
<br />tion of said street are desirous of having
<br />it vacated, and that said portion of said
<br />street is now of no use to your petitioners
<br />or to any other person for the purposes for
<br />which said street was laid out."
<br />A decree vacating the described portion
<br />of Lake Street was accordingly entered. on
<br />September 14, 1942.
<br />All was well until the following spring.
<br />when the Bergrens moved back to the lake
<br />for the summer. Witb apparent innocence,
<br />they began using the vacated portion of
<br />
|