12 N.W.2d 783 | Minn. | 1943
In 1940, respondents, hereinafter referred to as Simms, made application for a Torrens title to the northeasterly or rear 59.2 feet of lot 10, block P, Tuttle's Addition to St. Anthony in the city of Minneapolis. They were the record title owners of the rear 55 feet thereof. Appellant, hereinafter called Fagan, answered, claiming title to all of lot 10 except the rear 55 feet thereof, and claiming further an easement over the northwesterly 10 feet and the northeasterly or rear 10 feet of the Simms property. Fagan holds the record title to all of lot 10 except the rear 55 feet thereof. Fagan had previously brought suit against Simms to enjoin the obstruction of the claimed easement. The cases were consolidated for trial and a referee appointed to hear the testimony and make findings of fact and conclusions of law. His amended findings, adverse to *285 Fagan in both cases, were approved by a judge of the district court, and judgments entered accordingly. Fagan appeals therefrom.
Lot 10 as platted fronts on Fourth street southeast and runs along Fourteenth avenue southeast toward Fifth street. According to the plat, it is 66 feet in width and 165.87 feet in length. The .87 of a foot which the survey overran the length stated on the plat does not affect the decision.
On July 9, 1887, Alfred G. Wilcox, predecessor in title to both Simms and Fagan and the then owner of all of lot 10, divided the property by a conveyance of the rear 55 feet, which started the separate chains of title. By the same instrument, the 10-foot easement for an alley, here in controversy, was created. Two buildings, hereinafter referred to as the Fagan and Simms buildings, were erected on lot 10 snug against each other, with each structure laterally supported by its own side wall. It is agreed that the Fagan building was erected and standing in place in 1887. The record does not reveal exactly when the first Simms building was erected. The permit therefor was dated May 9, 1887, and was issued to Carleton Copp. Copp was one of the grantees in the conveyance from Alfred G. Wilcox, the original grantor. While the permit shows on its face that the building was to be completed on July 1, 1887, there is nothing in the record to indicate that it actually was finished on that date. One witness testified that both buildings were standing in place snug against each other in 1888. This is the only testimony we find in the record relating back to that time. It is undisputed that the Simms building was erected 4.2 feet over the boundary and on the Fagan land according to the descriptions of the properties in the respective deeds thereof. The two buildings remained in place until approximately April 11, 1904, when the old Simms building was removed and the present Simms structure erected, leaving a space of 4.2 feet in the rear and 4.25 feet in the front between the two buildings. The title to this strip is claimed by Simms by adverse possession and practical location of the boundary line. *286
In using the easement for driveway purposes, it was necessary to drive on a portion of the rear of lot 9 in order to execute the sharp, right-angle turn. This practice continued until 1924, when one Degnan became the owner of lot 9. He put up a fence between the two lots and a gate. Simms had torn up the paving in the alley back of their building and subsequently built a roof-covered stairway on the northeasterly side of their building. Finally this was enlarged in 1937 and converted into a hamburger shop, which extended to the Fourteenth avenue entrance. The new structure completely closed the driveway for every purpose. The title to the alley is claimed by Simms as far as it is appurtenant to their property.
Fagan assigns as error the holding of the trial court (1) that title to the 4.2-foot strip between the buildings vested in Simms by adverse possession; (2) that a boundary line between the two original buildings was established by practical location; (3) that the easement for an alley right of way over the Simms property had been discharged by abandonment and by adverse user by Simms.
1. The original findings of the referee determined title to the 4.2-foot strip to be in Simms by adverse possession. Subsequently the findings were amended to include a determination of practical location of the boundary line between the original Fagan and Simms buildings. Simms contend that adverse possession commenced approximately on May 9, 1887, on the theory that the original Fagan and Simms buildings were in place and snug against each other on that date. From the record we cannot say with certainty that such possession did commence in the year 1887. It is conceded, however, that the buildings were in place in 1888, the following year. Whether the period of adverse possession is to be considered as commencing in 1887 or 1888 makes no difference. It is evident that Simms did not have continuous adverse possession for the necessary statutory period of 15 years. Their continuous possession was interrupted and broken by two conveyances made by the National Bank of Commerce, which had acquired *287
title in 1889 to the front 110 feet by foreclosure of a mortgage made by Alfred G. Wilcox and wife. In 1890, the bank, by general warranty deed, conveyed to the Fagan predecessors in title all of lot 10 except the rear 55 feet. In 1892, the bank acquired title to the remaining 55 feet from Simms' predecessors in title by a quitclaim deed from James W. Raymond and wife, grantees of Wilcox, and the then record title owners of the property and in actual possession thereof. It is clear that upon execution of the quitclaim deed, whatever right, title, or interest was vested in or claimed by the Simms predecessors in title, adversely or otherwise, in the 4.2-strip, inured as a matter of law to the bank and automatically to the Fagan predecessors in title. 2 Dunnell, Dig. Supp. § 2369; Sandwich Mfg. Co. v. Zellmer,
In 1931, Simms made an offer to Pagan to purchase this disputed strip for $1,000. This offer was made, according to Simms, for the purpose of permitting them to erect a contemplated stairway to the new Simms building on this piece of land. It would appear that in 1931 the Simms were conceding that Fagan owned this piece of property. Sarah Fagan testified to a conversation between herself and Leigh Simms as follows:
"A. Leigh Simms came in and said they wanted to remodel the upstairs of their building, and in order to do that they wanted to buy this 5-foot areaway. He said they wanted to put the stairway in the areaway.
"Q. Instead of in the building?
"A. Yes, they would have to cut in the building and it would interfere with their display space and they didn't want to do that. He offered me $1,000."
This conversation is corroborated by Leigh Simms as follows:
"Q. Did you have a conversation with Sarah Fagan at her house?
"A. Yes.
"Q. When was that?
"A. Several weeks after I had spoken to Ed.
"Q. And what was that conversation?
"A. In regard to the strip in between the two buildings.
"Q. What did you say?
"A. That I would like to purchase the strip between the two buildings.
* * * * *
"Q. Did you tell her any amount you would be willing to pay?
"A. I told her I was ready to offer $1,000 for it."
The offer was not made in contemplation of litigation, as Simms did not anticipate a lawsuit at that time. Another incident indicating the attitude of the parties with reference to this strip is the *289
erection by Fagan in 1931 of a chimney on her building which protrudes into this 4.2-foot strip. No objection appears to have been made by Simms. They permitted this to be done without complaint. This attitude is entirely inconsistent with a claim of title by Simms to the property. Evidence of adverse possession is to be construed strictly and is not to be made out by inference or presumption, but by clear and positive proof. The burden of proving the essential facts which create title by prescription rests upon the party who asserts it. Hoverson v. Hoverson,
2. It is contended by Simms that when Wilcox executed his conveyance dividing lot 10 in 1887 it was his intention to establish a boundary line between the two buildings by practical location. Since the record is silent whether the Simms building was in place on that date, we must indulge in speculation to conclude that there was any such intention. The building permit was taken out in the name of Carleton Copp, not in the name of Wilcox. It is a reasonable inference, therefore, that Copp, one of the grantees, erected the structure, and not Wilcox, the grantor, and that Carleton
Copp had at least an equitable title to the property on May 9, 1887, arising by virtue of some agreement to purchase the property from Wilcox. We cannot say, therefore, from the record, that when Wilcox conveyed the property he did so with the buildings snug in place against each other so as to spell out any intention on his part to establish a boundary line between the two buildings. A contrary inference is reasonable. Further, we do not believe the record indicates any intention of the parties to establish a boundary line by practical location after July 9, 1887. To establish a boundary line by practical location, it must appear that (1) the location relied upon must have been acquiesced in for a sufficient length of time to bar a right of action under the statute of limitations; or (2) the line must have been expressly agreed upon by the interested parties and afterwards acquiesced in; or (3) the parties whose rights are to be barred must, with knowledge of the true line, have silently *290
looked on while the other party encroached thereon and subjected himself to expense, which he would not have done had the line been in dispute. 1 Dunnell, Dig. Supp. § 1083; Beardsley v. Crane,
"* * * Defendant Stevens did not know, at the time of the erection of plaintiff's house, the precise location of the true boundary line, and he was not aware of the fact that plaintiff had extended his house over the true line, and he did not knowingly permit him to do so. So far as the erection of the house is concerned, there is clearly no evidence in the record upon which to base an estoppel by conduct."
There is no showing of knowledge of the true line in this case, nor any testimony from which knowledge may be inferred.
The original Simms building was removed in 1904, and the new building was erected 4.2 feet from the Fagan building at the rear and 4.25 feet from the front. This change is significant insofar as it indicates the intention of Simms to protect their new building against any possible claim of title by the Fagans to this strip of *291
land. Although Mrs. Simms testified that the reason for placing their new building at that distance from the property line was to provide for an air space between the structures, this does not, however, destroy the reasonable inference that the Simms were taking a precautionary measure. In the instant case it appears that the Simms, by the erection in 1904 of their new building 4.2 feet from the Fagan building, their offer to purchase the strip for $1,000 in 1931, and their acquiescence since 1931 in the erection of the chimney upon the Fagan building, have placed a practical construction upon the deeds inconsistent with the trial court's holding as to adverse possession or practical location of the boundary line. In order to ascertain the intention of the parties as to the meaning of the deed, consideration may be given to the practical construction placed upon the deed by the parties themselves. Sandretto v. Wahlsten,
3. Fagan contends that the finding of abandonment of the 10-foot easement is not sustained by the evidence, and that at most the testimony shows a nonuser, which is not in itself sufficient to establish an abandonment. An easement may be lost by abandonment though originating in grant. 2 Dunnell, Dig.
Supp. § 2855; Norton v. Duluth Transfer Ry. Co.
Affirmed on the issue of abandonment of the easement, and reversed as to the ownership of the 4.2-foot strip of land.
MR. JUSTICE LORING, absent because of accidental injuries, took no part in the consideration or determination of this case.