34 Minn. 143 | Minn. | 1885
In the year 1850, a survey and plat of what is known as Bottineau’s addition to St. Anthony was made, but the plat, not being properly acknowledged and certified,, constituted no
The plaintiff claims title under the original proprietor, Pierre Bottineau. The defendants lay no claim to the land themselves, but deny plaintiff’s title and right of possession. The controversy embraces substantially two issues — First, whether the locus in quo was dedicated to public use for a public street and wharf; and, second,
Of course, a common-law dedication is meant, to establish which the defendant relies upon evidence of acts in pais of the original proprietor, including the survey and representations upon the plat, public user, and conveyances made with reference to the plat. It is, however, found by the trial court upon this issue “that there has been no dedication to or acceptance by the public of this tract of land as or for a public wharf or steamboat landing, and that no part of said land has been used for such purpose for more than twenty years prior to the commencement of this action.” This includes a finding that there were no acts in pais by Bottineau, either separately or in connection with and explanatory of the survey, sufficient to constitute a dedication. It would have been more satisfactory if the court had specifically found whether the locus in quo was designated on the plat by the words “public wharf” written thereon, — a very material question in the case, — but we think it must be assumed to be involved in the general finding, and determined in the negative. If more specific findings are deemed important or material, the defendant should have made an application to the court for such purpose. Smith v. Pendergast, 26 Minn. 318; Bradbury v. Bedbury, 31 Minn. 163.
The evidence that the original plat was so marked is circumstantial. The words in question do not appear on the plat now remaining of record in Bamsey county. No witness swears that they were originally placed thereon, or that he remembers seeing them there. But they appear upon copies, some of which were made for record in Hennepin county, though not certified by the register of deeds of Bamsey county, but which the witnesses believe were accurate from the circumstances under which they were made and compared. On the other hand, they do not appear upon other maps which were also made from the records at an earlier day, and which the compilers intended should be accurate copies, and which were copied from the original records. Though the evidence in defendant’s favor, taken in connection with the circumstances of the survey and situation of the premises and the navigation on the river as then contemplated,
Dedication of streets and public places, properly marked and designated upon the plat of a survey of urban property, is complete upon conveyances being made of lots included in such survey with reference to such plat, though not properly certified for record. Such conveyances work an estoppel in favor of the grantees, and no subsequent revocation can be made without their consent, and the rights so granted may be adopted and enforced by the public authorities. State v. Trask, 6 Vt. 355, S. C. 27 Am. Dec. 554, 568, notes and cases; 2 Dillon, Mun. Corp. § 640, (503:) Trustees of Watertown v. Cowen, 4 Paige, 510; Bartlett v. Bangor, 67 Me. 460; Village of Mankato v. Willard, 13 Minn. 1, (13.) It is clear, therefore, that the question of fact whether or not the land in question was represented on the plat to be a “public wharf” was important and material on the question of the alleged dedication. Assuming that it was not so marked, as we think we must, and it does not appear to be established by the plat itself, standing alone, that the blank space in question was intended to be set apart and dedicated for a public wharf or any special purpose. Downer v. St. Paul & Chicago Ry. Co., 23 Minn. 271; Cowles v. Gray, 14 Iowa, 1; Warden v. Blakley, 32 Wis. 690; 2 Dillon, Mun. Corp. § 641, (504.) Whether it was intended to be dedicated for some public purpose would properly be determined as a question of fact upon all the circumstances by the trial court. Eastland v. Fogo, 58 Wis. 274, and eases last above cited.
The claim is made that the space, at least, between Water street and the river is dedicated for a public wharf or landing, and purposes impliedly accessory thereto. This is a specific purpose distinct from that of a street merely, or a public square, and the public right is determined, by the character of the grant. The public take secun-dum formam doni. What the nature of the dedication is must, therefore, in some way be made to appear by proper evidence. And in this ease we are unable to say that the court erred in its inference that if the land in question was not so marked or designated, the fact that it was left a blank, open space was insufficient to show such dedication.
In any view of the case, then, the defendant’s use and appropriation of the premises was unauthorized, and was an unlawful interference with plaintiff’s riparian rights as owner of the soil. As against the owner of the soil, a trespasser cannot interpose as a defence the existence of an easement which the public or a third person may have in the premises. Jackson v. Hathaway, 15 John. 447; Gardiner v. Tisdale, 2 Wis. 115.
Order affirmed.