| Minn. | Mar 15, 1892
The question here involved is whether this action is one for the recovery of real property, so as to entitle the plaintiff to demand a second trial under the statute. 1878 G. S. ch. 75, § 11.
It is evident, we think, from'the pleadings, that the real controversy here is over the title of the locus in quo, and the possession thereof, dependent upon the question of title, which possession, among other relief, the plaintiff seeks in its complaint. Such other relief is, however, merely incidental or ancillary to the main controversy, as we have indicated. The plaintiff, a municipal corporation, alleges that it is the owner of the ground in controversy, which is a public street, levee, and landing within the city, and is held by it for such purposes. The complaint also shows that the premises are occupied by the defendant with its depot buildings and tracks, “by means whereof a large portion of the said street, landing, and levee has been and is occupied and blockaded by the defendant, and the city and public are wrongfully excluded therefrom.” It is also alleged “that the occupancy and use of the premises by the defendant’s trains traversing the tracks render the streets and levee dangerous, and create a nuisance to the public.” The plaintiff asks that the defendant shall be required to remove such structures, and that said nuisance be abated, and “that said defendant may be ejected from all parts of the street, landing, and levee occupied or used by it or in its possession.” Other relief is also asked by way of injunction.
If the issue of title and right to the possession were decided in plaintiff’s favor, it would be entitled to recover the property in any event, which was the principal relief sought, irrespective of the question of other relief, which was altogether subordinate, if not immaterial, in the case.
The defendant, in its answer, takes issue with the plaintiff on the question of its title and right of possession, and avers that it (the defendant) is now the owner and in the actual possession of the entire parcel of land described in the complaint, “except a certain strip sixty-nine feet in width next the south line of blocks four (4) and three (3) in Hopkins’ addition,” referred to in the complaint, and, as a further defense, the defendant, sets up title by adverse possession. The main issue between the parties is clearly defined. The controversy is over the title and right of possession of the locus in quo, the recovery of which the plaintiff seeks and the defendant resists.
Upon a trial upon the merits, the case was determined adversely, to the plaintiff on the issue of adverse possession.
We have no doubt the ease falls within the provisions of the statute giving a second trial in actions for the recovery of real property, and the order of the court, refusing to strike the formal demand for a second trial from the record, is affirmed.