Hall v. City of St. Paul, 56 Minn. 428

Hall v. City of St. Paul

56 Minn. 428 | Minn. | 1894

Canty, J.

The plaintiff claimingto be the owner of a part of two lots in the city of St. Paul, which was being used by the public as a street, brought this action to eject the public, and have restitution of said part of said lots. The defendant city answered that said part “is now, and for more than twenty years last past has been, a part and portion of a public street of said city, and during all of said time this defendant has been in possession of the same, and has improved and used the same as a public street.”

The city offered some evidence of such prescriptive right for twenty years, but the court below did not find this defense to be established. But a part of the evidence so offered was sufficient to prove a right in the city to the part of the lots in question for the purposes of a street, under 1878 Gf. S. ch. 13, §§ 47, 48, which provide, “that when any road or portion thereof shall have been used and kept in repair, and worked, for six years continuously as a public highway, the same shall be deemed as having been dedicated to the public, and be and remain, until lawfully vacated, a public highway, whether the same has ever been laid out as a public highway or not.”

Plaintiff objected to the evidence being received to establish such street under this statute, as not being admissible under the pleadings. The objection was overruled, and he excepted.

We are of the opinion that this was not error. It seems to us that an allegation “that during all of said time” (for twenty years) *432the defendant “has improved and used the same as a public street” is a sufficient allegation that it “used, kept in repair, and worked” the street for six years. The allegation that it “improved” the street would not always include the allegation that it “repaired and worked” the street. For instance, if it was a new street that had never been traveled, an allegation that it was “improved” would not mean that it was “repaired;” but, if it is being continually improved, while it is being continually used, those improvements must necessarily, in part at least, consist of repairs. Alleging such use and improvement for twenty years is sufficient to admit proof thereof for six years, the greater including the less.

The evidence was sufficient to establish the right of the city under this statute, the court below so found, and we are of the opinion that the judgment should be affirmed.

The appellant assigns as error that the court below erred in admitting evidence of a common-law dedication of the land in question as a street, as not admissible under the pleadings. He does not, in any manner, indicate what particular evidence he refers to, and the great mass of the evidence received would tend to prove adverse user, as well as a dedication by the abutting owner. The assignment of error is too indefinite, and raises no question in this court.

Judgment affirmed.

(Opinion, published 57 N. W. Rep. 928.)