37 Minn. 256 | Minn. | 1887
Indictment for a nuisance in obstructing a public street. The state, on the trial, claimed that the land over which the alleged street ran was dedicated by the owner, one Holmes, to-public use as a street, and that the dedication was accepted by user-on the part of the public. Defendant purchased the land* from the heirs of Holmes, and claimed that it never was dedicated as a street; and that was really the only issue at the trial, for on,the evidence there was no dispute that for several years the public used it as a street, nor is there any that defendant blocked it up by building a fence across it.
At the opening of the trial the attorney for the state, in answer to a question asked by the court, stated that the only question was
The witnesses who had lots abutting on or near the alleged street were competent to testify to admissions by Holmes, notwithstanding he was dead; for they were in no sense parties to the action, nor were they “interested in the event thereof,” within the meaning of Gen. St. 1878, c. 73, § 8. They had no.interest other than such as was had by any one of the public at large who might have property incidentally affected by the existence or non-existence of the street. Their interest was the same in kind, though it might differ in degree. They had nothing to gain or lose by the direct legal operation and effect of the judgment to be entered. Marvin v. Dutcher, 26 Minn. 391, (4 N. W. Rep. 685.)
Proof, in such a case, of any public work done on the land to make it passable as a street, or near the approaches to it to facilitate access to it, and the public use of it, is admissible, not to show an intent to dedicate, but to prove acceptance by the public. That the witnesses who testified to Holmes’s acts and declarations, and the public use of the street, sought to buy the land from the owners, or that they signed, or circulated for signatures, a petition asking the village authorities to lay out a street over the land, might tend to show their opinion as to the legal effect of the facts, but has no tendency to impeach or impair the value of their testimony as to the facts.
Notwithstanding the ruling sustaining the objection to the witness Whitlock testifying to declarations of Holmes, he testified fully as
Order affirmed.
Berry, J., because of illness, took no part in this case.