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186 MlnsL 15 NORTH WESTERN REPORTER, 2d SERIES
<br />Lake Street as a means of access to their
<br />cottage. But, about June 1, Arne Bergren
<br />received a telephone call from the attorney
<br />for the Baldwins warning him to discon-
<br />tinue the use of ti„ varl,;cd street "or else
<br />he would be subject to legal process for
<br />doing so." Bergren immediately engaged
<br />his present attorney to investigate what had
<br />happened. With proper diligence, notice
<br />of a motion to set aside the 1942 decree and
<br />to permit the Bergrens to appear in op-
<br />position to the vacation of the street was
<br />served upon the Ealdwins, as well as upon
<br />the occupant and record owner of other
<br />abutting property, and upon the chairman
<br />of the town board. A copy of notice of mo-
<br />tion was also posted in three ?ublic places
<br />in the township.
<br />setting aside the decree does not appear
<br />from these affidavits and must remain a
<br />mystery.
<br />Notwithstanding the timely motion made
<br />by appellants, the district court, by order
<br />dated September 23, 1943, refused to set
<br />aside its former decree so as to permit ap-
<br />pellants to be heard in opposition to the
<br />application to vacate the street. The ap-
<br />peal is from that order.
<br />(1] 1. Throughout the proceedings be-
<br />low, the abutting owners have emphasized
<br />the nonuse of the vacated portion of Lake
<br />Street as a street or thoroughfare and the
<br />fact that appellants have another street as
<br />a means of access to their property. Ap-
<br />pellants, on the other hand, have stressed
<br />the claim of damagr_ to their own property
<br />Only the Baldwins appeared in formal caused by the vacation. Apparently lost
<br />opposition to the motion to reopen the pro in the sh tffle were the rights of the public
<br />ceedings. They relied mainly upon the in the lake itself, for neither party seems
<br />claims (1) that the Bergrens had not been to have given much consideration to the
<br />deprived of access to their premises, be- value of Lake Street, located as it is oil the
<br />cause West Street was available to them; shores of St. Albans Bay, in providing
<br />(2) that Lake Street hzd not been used as a lake frontage and shore line for the use of
<br />street or thoroughfare until 1940, when the the public for recreational purposes. Lake
<br />Baldwins filled in a portion of Lake Street Street having been located by the plat of
<br />adjacent to the county road and commenced Bennett's Addition on the shore of the bay,
<br />improvements on their own property; and its dedication to the use of the public will
<br />(3) that the vacated part of Lake Street(,be presrmed to have been intended "to
<br />"is useless to the public for the purposes enable the public to have access to the wat-
<br />for which it was laid out, has never been er for all proper public purposes." In re
<br />used by the public or Ly anyone for pur- Petition of Schaller, 193 Minn. 604, 259 N.
<br />poses as a street, and the public interests W. 529, 530 headnote.
<br />A. b— served by not using said platted
<br />street, in view of the location of said street
<br />and the complete accessibility of the public
<br />to the shores of Lake Minnetonka at the
<br />southerly end of West Street."
<br />Supporting the Baldwins in their efforts
<br />to prevent a reopening of the proceedings
<br />were the three town supervisors, who by
<br />affidavit asserted that, upon being served
<br />with notice of the original hearing in 1942,
<br />they had made a complete investigation
<br />and had concluded that the portion of Lake
<br />Street here involved "was no good for the
<br />purpose for which it was laid out and that
<br />there would be a 6eri.cjit accruing to the
<br />public by the proposed vacation." The
<br />supervisors further deposed "that no use-
<br />ful purpose would be served and that the
<br />interest of the public would be prejwdiced
<br />by order of this court setting aside the de-
<br />cree." Just what benefit the public would
<br />derive from the vac ,ion of the street,
<br />other than being saved the minor expense
<br />of maintaining 150 feet of it, or what
<br />pr4Zjudice would result to the public from
<br />[2] 2. The contest here is not a mere
<br />bout between private individuals with mem-
<br />bers of the public acting merely in the role
<br />of spec-tators. The public has a real and
<br />substantial interest in the outcome. "The
<br />yublic rights in these lakes, with which
<br />this state abounds, are of great value and
<br />importance," Witty v. Board of County
<br />Com'rs of Nicollet County, 76 Minn. 286,
<br />289, 79 N.W. 112, 113, and this court has
<br />always been zealous in protecting them.
<br />Lamprey v. State, 52 Minn. 181, 53 N.W.
<br />1139, 18 L.R.A. 670, 38 Am.St.Rep. 541;
<br />Madsen v. Larson, 117 Minn. 369, 135 N.
<br />W. 1003 ; State Y. Korrer, 127 Minn. 60,
<br />148 N.W. 617, 1095, L.R.A.1916C, 139;
<br />Erieksehen v. County of Sibley, 14? Minn.
<br />37, 170 N.W. 883; In re Petition of Schal-
<br />ler, supra ; In re Petition of Krebs, 213
<br />Minn. 344, 6 N.W2d 803; Petraborg v.
<br />Zontelli, Minn., 15 N.W.2d 174, decided
<br />June 9, 1944. And where, as here, it is
<br />proposed to vacate a street which is lo-
<br />cated upon a lake shore, the matter should
<br />receive "our most careful consideration.
<br />
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