|
APPLICATION OF BALDWIN
<br />16 N.W.ld 101
<br />meandered lake may be vacated upon pe-
<br />tition of an interested property owner is
<br />whether the public interest will be best
<br />served by such vacation.
<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 Afinn.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," must 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 hake Minnetonka upon petition of an ad-
<br />joining owner no! personally served with
<br />notice of the vacation proceedings held
<br />erroneous.
<br />Appeal from District Court, Hennepin
<br />County; Levi M. Hall, Judge.
<br />Proceeding in the matter of the applica-
<br />tion of Edward H. Baldwin and Hazel
<br />Baldwin to vacate a portion of I_.ake Street
<br />located on the north shore of St. Albans
<br />Bay of Lake Minnetonka, Hennepin Coun-
<br />t•,%%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 />1 505.14, Alason St.1927, § 8244, for the
<br />vacation of a short stretch of Lake Street
<br />(about 150 feet) located on the north shore
<br />of St. Albans Bay of Lake Minnetonka in
<br />1:xcclsior township, Hennepin county, de-
<br />scribed as "All that part of Lake Street ly-
<br />ing between the southeasterly line of Coun-
<br />t, Road No. 82 and the southwesterly line
<br />of \Vest Street extended to the shore of
<br />Lake 'tlinnetonka, Bennett's Addition to
<br />Coy ington." The petitioners, Edward H.
<br />I1ald\%in 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,24--12%
<br />Minn. 185
<br />is owned by Albert Jacoby, who consented
<br />in writing to the partial vacation of the
<br />street.
<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 />during the summer months of each year
<br />but, during such period, have occasion to
<br />use the portion of Lake Street sought to
<br />be 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 roar.
<br />Lake Street was dedicated to public use
<br />in 1983 by the plat of Bennett's Addition to'
<br />Covington, filed in that year. However,
<br />the portion of the street here involved has
<br />never been graded or otherwise improved
<br />by the township, and it-; use as a thorough-
<br />fare by the public generally has not been
<br />extensive.
<br />On August 14, 19t in 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 described.
<br />Pursuant to directions contained in the or-
<br />der for hearing, it was duly published 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 />district court no opposition appeared. The
<br />trial court, after hearing the petitioners,
<br />made appropriate findings, including one
<br />following the languaee of the petition, viz.:
<br />"That the portion .,f said Like Street so
<br />described is useless for the purposes fur
<br />which said street was laid out; that all of
<br />the prol—rty owners abutting on said por-
<br />tion of s.tid 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 ertered.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. With apparent innocence,
<br />they began using the vacated portion of
<br />
|