35 Minn. 314 | Minn. | 1886
The first question in this case is whether the deed (Exhibit B) from Johnson to Strobeck conveyed the fee of, or only an easement in, the premises in controversy. It purports to be a deed between Johnson and wife, parties of the first part, and Strobeck, “and others who do and may own property along the within-described alley,” parties of the second part, conveying to the said parties of the second part the premises in question, which are declared to be “deeded for alley purposes; and whenever it ceases to be kept and used for said
In the first place, it is evident that what was granted was not intended to be an exclusive right or interest in Strobeck, but in him, and “others who do or may own property along the within-described alley.” Two distinct tenements are here referred to, viz., the property “along the within-described alley,” and the land described in the deed, and here called an alley. A right of way as an alley was evidently intended to be imposed over the latter tenement for the benefit of the former. The right granted excluded the idea of the grantees taking actual possession. The right was merely one of accommodation (a right to pass over) as distinguished from those which are directly profitable. The grantee of such a right is not the owner or occupant of the estate over which the right of way is given. Such being the effect of this deed, Johnson remained the owner of the premises, and might afterwards dedicate the same as a public alley. Such dedication would not impair or interfere with the right of way granted to Strobeck.
If Johnson’s attempt to make a statutory dedication was ineffectual because the map was not recorded, yet it appears from the findings of the court (fourth and fifth) that there was a good common-law dedication. There was on the part of Johnson, the owner of the fee, an appropriation of the land to this specific public use, and on the part of the public an acceptance of the land for such use. The appellant suggests, although apparently with doubt, that there cannot be any such thing as a common-law dedication of land for streets or alleys in the city of Minneapolis; that the statutory method pre
k These premises, being a public alley, were exempt from taxation. It is claimed that this fact should have been made to appear by answer and proof in the tax proceedings, and that the tax judgment is now conclusive. Without entering at all upon the question of the conelusiveness of a tax judgment as against private persons, — which is now before us in another ease, — it is clear that it can have no force or effect whatever as against the rights of the public in these premises. At common-law the title to all public highways was in the king, for the benefit of all his subjects. In this country such title is in the state, either directly or through municipalities, or such agencies as it may create for that purpose, for the use and benefit of all its citizens. The rights or interests of the state in land are not subject to the provisions of the laws for the assessment and collection of taxes. The courts cannot, in these tax proceedings, acquire any jurisdiction over these public rights or interests. The state cannot be subjected to the jurisdiction of the courts, nor be compelled to defend in them. This was suggested in County of Chisago v. St. Paul & Duluth R. Co., 27 Minn. 109, (6 N. W. Rep. 454.)
Order affirmed.
