125 Minn. 484 | Minn. | 1914
In proceedings to register title to lots 4 and 5, in block 16, Second Glen Avon Division of Duluth, the court determined the applicant to be the owner thereof in fee. After denial of defendant’s motion to amend the findings and for a new trial, he appealed.
Applicant’s title is conceded, unless the city of Duluth, to whose alleged title defendant succeeded, acquired the same by adverse possession. Defendant’s principal contention is that the latter was conclusively established.
It appeared without dispute that on and previous to November 7, 1892, a Mr. Macfarlane owned the lots, his residence being near thereto, where he continued to live until his death, which occurred in December, 1908. His residence and the lots were situated in a then sparsely settled portion of the city. He, with other property owners of that vicinity, desired city fire protection, which up to that time had not been provided. On the date first mentioned he addressed a letter to the chairman of the committee on fire protection, as follows:
“I wish to state to you, as I did to the board of fire protection last Saturday, that if the fire protection which was asked for the Woodland Avenue District was furnished this fall, I will, if necessary to that end, donate a site with a fifty-foot frontage on Roslyn avenue, next to the Glen Avon public school, and agree to carry the cost of the building and its equipment up to say ten thousand dollars ($10,000), until such time as the city is in funds, say any time within eighteen months, upon the legally drawn order or orders issued by the city. The protection asked for is very much needed, and should in all fair*486 ness be pnt in at once. In tbe past twenty months there have been several fire' losses in that district, one amounting to about six thousand dollars ($6,000) which could easily have been averted by a small chemical engine.”
On the same date the board of fire commissioners sent the common council the following recommendation:
“We again take the liberty of recommending to your honorable body the necessity of fire protection for'the people of Woodland District. In consideration of the same, Mr. A. E. Macfarlane, of the American Exchange Bank, has agreed to donate to the city a fifty-foot lot for a fire department building, and he further agrees that, in case of a shortage in the fire department fund, he will carry the city orders at the usual rate of interest, for the expense of the same, provided it does not exceed ten thousand dollars.”
The city council, on November 14 following, adopted this resolution :
“Whereas, A. E. Macfarlane has offered to donate to the city of Duluth a site of 50 foot frontage on Eoslyn avenue, next to Glen Avon public school, for a fire engine house at Woodland, and has offered to carry the cost of a proper building and the equipment for an amount not exceeding $10,000, for a period not exceeding 18< months upon a legally drawn order or orders, to be issued by the city at the usual rate of interest. Be it resolved, that the offer of said A. E. Macfarlane be, and the same is hereby, accepted, and be it further resolved that the board of public works be, and they are hereby, instructed to enter into a contract for said lot and ascertain the cost of a suitable building for fire purposes and report same to this council at the next regular meeting thereof.”
The records of the board of public works, of date November 19, contain the following:
“The resolution of the common council relating to the offer of A. E. Macfarlane to donate to the city of Duluth a site of 50 foot frontage on Eoslyn avenue next the Glen Avon public school for a fire engine house at Woodland and to carry the cost of a proper building and its equipment for an amount not exceeding $10,000*487 for a pei’iod not exceeding eighteen months, was laid on the table.”
And of date December 19 :
“In the matter of a resolution adopted by the common council on November 14, 1892, instructing the hoard of public works to enter into a contract with A. E. Macfarlane for a fifty-foot lot on Eoslyn avenue in Glen Avon for the purpose of erecting thereon a fire engine hall, a report was ordered sent to the common council, stating that Mr. Macfarlane had consented to donate Lots 4 and 5, block 16, Second Division of Glen Avon, 100 feet on Eoslyn avenue; that the board had accepted the plans for the building, furnished by-Wagenstein and Baillie, subject to the approval of the council; architects to receive 5 % of the cost of the building for furnishing detail plans and superintending construction; that the estimated cost of the building was $4,000, and asking the order of the common council to advertise for bids for the construction of the building as soon as deed for the lots could be secured by the city.”
Outside of this record there is no evidence of Mr. Macfarlane’s relation to the change to the larger site, none of any conveyance thereof to the city, nor direct evidence of any gift of or consent to the city’s occupying it. However, it included the site first proposed. Contracts were thereafter let by the city for construction of the fire engine house, and it took possession of the lots and commenced building on February 10, 1893. The building was erected partly on a stone foundation, at a cost exceeding $4,000. It was completed in 1893 and from then for upwards of four years was occupied by the city with fire apparatus and crew, but was not thereafter used by it for any purpose. After its abandonment for fire purposes the city caused the doors to be locked, windows to be boarded up, and, several times during each year, until 1909, the renewal or renailing of the boards as found necessary, the property also being inspected by the fire department at various times during such period. On January 21, 1909, the city quitclaimed the property to one Joe Eoy for a consideration of $251. Shortly thereafter the grantee razed the building, and subsequently, on October 6, 1909, conveyed to defendant. Between the city’s discontinuance of use for fire purposes and the conveyance to Eoy, a church society and an individual used the property for a time for storage purposes, but by whose authority is not
The court found the city was never at any time in possession of the land in controversy holding adversely to the Macfarlane title, and further that defendant did not acquire any title thereto by adverse possession.'
There was also some testimony introduced by applicant, over de
Recurring now to the question of whether the city’s adverse possession was conclusively established, we approach the discussion, having in mind the weight to be accorded the trial court’s findings and the presumption that the city’s occupancy was in subordination to the true title, and further that the city’s acts regarding possession must be construed strictly and the character of the possession clearly shown. Preble v. Maine Cent. R. Co. 85 Me. 260, 27 Atl. 149, 21 L.R.A. 829, 35 Am. St. 366; 1 Dunnell, Minn. Dig. § 127. As said in Costello v. Edson, 44 Minn. 135, 138, 46 N. W. 299, 300:
“To determine whether particular acts or a course of conduct constitute adverse possession which, if continued, will bar the title of the original owner, regard must be had to the nature or quality of the acts, and to the situation of the property, as well as to the theory upon which the doctrine of adverse possession rests. The owner becomes barred of his right by reason of his acquiescence in the hostile possession of another under a claim of right, maintained for the period of 20 (now 15) years, and of which he has notice, or which is maintained under such circumstances that he is presumed to have notice.”
The circumstances of possession must be of such nature as to preclude a conclusion that the owner was misled by facts from which he might reasonably have supposed a mere trespass had been or was being committed, instead of the assertion of a claim of right. The acts of the invader are sufficient if they clearly show actual appropriation to his 'permanent and exclusive dominion and benefit; but they must visibly indicate intention of permanent occupation and appropriation. Actual residence on the land, however, is not necessary. McCauley v. Town of McCauleyville, 111 Minn. 423, 127 N. W. 190, 20 Ann. Cas. 828.
We think it clear, from the history of the transaction here involved, that Mr. Macfarlane intended to make an absolute donation to the city of a site for the fire house, and that the authorities so
We have not been unmindful of applicant’s insistence that the records from which we have quoted are incompetent to show the city’s intent; nor have we overlooked the argument based upon the inadequacy of the consideration for which the city sold the prop
Order reversed.