Downer v. St. Paul & Chicago Railway Co.

| Minn. | Jan 9, 1877

Gileillan, C. J.

It was held in this action, in the opinion filed in October, 1875, (22 Minn. 251" court="Minn." date_filed="1875-10-21" href="https://app.midpage.ai/document/downer-v-st-paul--chicago-railway-co-7963090?utm_source=webapp" opinion_id="7963090">22 Minn. 251,) that the plat of the town of Pepin was not made in accordance with the requirements of the statute, and that it could not operate as a statutory conveyance or dedication of the land in controversy to public use. It was necessary, therefore, in order to sustain the claim of the compan}', that it should prove a dedication in pais — that is, prove an intention and offer on the part of the owner, and an acceptance of such offer on the part of the public. Whether the whole evidence established such a dedication, even by estoppel, (if the public could claim it,) through the conveyance of lots according to the plat, wo are unable to say, for the statement of the case does not purport to contain the whole of the evidence. The only questions which can bo considered hero are those which are presented by the exceptions to the ruling of the court below, admitting evidence, and to its refusal to give to the jury the instruction requested by defendant.

The evidence, to the admission of which the exception was taken, consisted in the declaration of the owner of the land, made at the time of making the plat, to the effect that he did not intend to dedicate the hind to public use, but to reserve it for private use. Such declarations by the owner were held admissible in Wilder v. City of St. Paul, 12 Minn. 192. They are evidence of the party’s intention with respect to the land claimed to be dedicated, and, up to a dedication made irrevocable by acceptance on the part of the public, there is no doubt of the propriety of admitting them.

The instruction requested includes three propositions. If either of them was incorrect, there was no error in refusing to give the instruction. The second of these propositions was to the effect that the plat shows that the land in dispute was, by the owner, intended to be donated to the public use, as a public street or levee, at the time it ivas made and executed. This assumes that it was the province of the court to construe the plat, and declare, without submitting the question to the jury, its force and effect. Had the plat been made and recorded pursuant to the statute, so as to operate ipso facto as a conveyance of lauds dedicated to public use, it would have been for the court to construe it, and determine what was intended to be dedicated by it, just as the court construes conveyances and contracts between private persons. Hanson v. Eastman, 21 Minn. 509" court="Minn." date_filed="1875-05-01" href="https://app.midpage.ai/document/hanson-v-eastman-7963012?utm_source=webapp" opinion_id="7963012">21 Minn. 509. The rule in regard to coustruing writings is that, if the writing contains the contract — -if any was made between the parties — then the court, and not the jury, must construe it; but if the contract is shown partly by writing, and partly by oral testimony, then the entire question must go to the jury. 1 Taylor Ev. § 36; Wilkinson v. Storey, 1 Jebb & Syme, 509 ; Bolckow v. Seymour, 17 C. B. n. s. 107; Brook v. Hook, L. R. 6 Exch. 89. The same rule, doubtless applies to maps or plats.

The plat in question could not of itself have the effect of a conveyance, contract, or dedication to public use. It could only be used to establish a dedication in pais, by showing acts, circumstances, and declarations, evidencing an intention to dedicate to public use, existing at the time of the alleged acceptance by the public. It might be one of many acts, circumstances, or declarations tending to show such intention, and there might be others to disprove such intention. In this case there were, as appears from so much of the evidence as is contained in the return, acts, circumstances, and declarations, other than the plat, some going to prove, and some to disprove, such an intention. Of the evidence as to the intention given on the trial, the plat was only a single item. The case was one in which the entire question should be left to the jury, and the court was right in so leaving it.

Order affirmed.