Nos. 11,023-(154) | Minn. | Jul 12, 1898
The St. Paul & Duluth Railroad Company, plaintiff herein, is the successor of the Lake Superior & Mississippi Railroad Company, and for many years has maintained a railroad track on Rice’s Point, in the city of Duluth, crossing two streets or highways known as “Garfield Avenue” (formerly “Third Street”) and “Arthur Avenue” (formerly “Fifth Street”). In the early part of June, 1897, the defendants tore up this railroad track where it was laid across Arthur avenue; and the plaintiff immediately replaced the track, and obtained an injunction from the court restraining the defendants from tearing up, removing or interfering with the track during the pend-ency of the action. The differences as to Garfield avenue were subsequently adjusted. The application for a permanent injunction as to Arthur avenue came on for hearing on its merits in September, 1897, at a general term of the district court of St. Louis county, and upon defendants’ motion the action was dismissed. A motion for a new trial was made and denied, and plaintiff appeals.
A considerable portion of the plaintiff’s evidence was introduced in support of its claim that it had acquired an easement in the nature of a right of way across Arthur avenue, the locus in quo, by adverse possession. Rice’s Point was platted in 1858. Arthur avenue, which appears upon this plat, was from 1881 up to 1896 a sandy or marshy waste; and during this time it had not been opened, used or worked as a public highway. It was not needed during such time for highway purposes, and had no actual, visible marks of existence for avenue or street purposes; and 15 years had not elapsed between the time when it was first required for public use as a highway and the commencement of this action. G. S. 1894, § 5155, provides
“That all the provisions of this title [“The Time of Commencing Actions”] as to the time of the commencement of civil actions shall*275 apply to municipal and all other corporations with like power and effect as the same applies to natural persons.”
This law would undoubtedly apply to this case if Arthur avenue had, during a period of 15 years, been opened, worked and used as a public highway by the city of Duluth prior to the commencement of this action. But the difficult question arises upon the fact that during part of said time it was not so opened, worked, used and recognized as a public street, nor needed for such purpose, by said city.
When a party makes a plat of his land, with streets and avenues marked thereon, and duly files the plat for record, the municipal corporation within whose boundaries the land is situate may adjudge when its necessities require the use of such streets and avenues for public purposes; and until it has so determined, taken possession, opened and. used it, the statute of limitations will not commence to run against it. The mere execution and filing of a plat by the owner of land cannot entail upon a municipal corporation the absolute duty to protect the streets thereon marked, as against occupants thereof. Its right in regard to the plat may remain dormant for a reasonable time, at least, but until such right springs into life no legal obligations arise against it. In this Western country, and especially during the so-called “boom times,” thousands of acres of land were platted, and frequently included land designated for street purposes, which, by reason of hills, rocks, marshes or deep water, at various places therein, were utterly unfit for public ways until improved, and often a,t great expense. Such designated street a municipal corporation is not bound to protect against occupants until the time arrives when such street, or part of it, is required for actual public use, and is actually opened.
Of course, this rule would apply to any street marked on a plat, where the dedication thereof is not accepted, and where it is not opened for public use. Hence persons in possession of such platted streets, or part of them, will, until the time arrives when such streets are required for actual public use, be presumed to hold subject to the permanent right of the public. Reilly v. City, 51
It is unnecessary to discuss at length the question of adverse possession of the locus in quo prior to 1881, as the evidence is too meager and insufficient to establish such possession. 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 him who asserts it. No such facts were proven in this case as to possession prior to the year 1881.
The next point raised by appellant is that the special acts of the legislature which incorporated the Lake Superior & Mississippi Railroad Company authorized the St. Paul & Duluth Railroad Company to construct its tracks across Arthur avenue, without need of further authorization. We have examined the material provisions of the various legislative acts bearing upon this case, and we find none of them authorizing the building of the track in question across Arthur avenue. If these acts can be construed as applicable to the main line, or even to a side track, where it crosses public streets and highways, they are inapplicable to a track of this character. It is not part of the main line, and cannot be properly considered a spur or side track. It is constructed nearly at right angles from the main line, extending a long distance through private property, and over the public streets not occupied by the main line. It is in fact a distinct branch of the main line, and we find no express or implied authority for its crossing Arthur avenue, the locus in quo in question.
It would serve no good purpose to go into any further details, or extend this opinion.
Order affirmed.