30 N.W.2d 588 | Minn. | 1948
The village of Newport brought this action for a decree ordering defendants to remove obstructions from a street in that village and enjoining them from maintaining such obstructions. Plaintiff's complaint alleged a conspiracy on the part of defendants, but when no cause of action in conspiracy had been proved when plaintiff rested its case the parties stipulated that the trial should continue for the purpose of having the court determine the rights of the respective parties in and to the street.
The street here involved is First street, which by virtue of the original plat of the village of Newport was duly laid out, platted, and dedicated in 1857 as a public street of a specified width of 60 feet. Although in existence for nearly 90 years, it has never been improved or officially opened to public travel. On the other hand, it has never been vacated. First street runs in a north-south direction, roughly parallel to the Mississippi River, and is the first village street east of that river.
Defendants are the owners of lots abutting on both sides of First street. None of them held title to any of this property prior to the enactment of L. 1899, c. 65, prohibiting the occupant of a public way from acquiring title thereto by adverse possession. The earliest acquisition of title was by defendant Christine Verrier in 1903. Since acquiring title, each defendant has used First street as a part of his own property. Some have placed sheds and chicken coops thereon, while others have put in fences and gardens. Some have installed pumps, water systems, and cesspools in the street area. In 1942, defendants joined in a petition to the village council requesting the vacation of First Street. The petition was denied, and defendants were ordered by the council to remove from the street any fences, sheds, or other obstructions belonging to them. The refusal by defendants to do so and their assertion of title to the street right of way resulted in this lawsuit. *302
Defendants' claim to title is based on three grounds: (1) That defendants' predecessors in title prior to 1899 had by adverse possession destroyed plaintiff's easement for street purposes; (2) that plaintiff has lost its easement by abandonment of the street; and (3) that by long nonuser, with acquiescence in the concurrent occupancy of the street by defendants, plaintiff is estopped to assert its easement.
The trial court found that defendants had failed to establish any of these defenses. There is no claim that the conclusions of law do not follow from the findings of fact. The only question is whether the findings and conclusions are sustained by the evidence.
L. 1899, c. 65, prohibits the occupant of a public way which has been dedicated to public use from acquiring title thereto by adverse possession. See, 1 Dunnell, Dig. Supp. § 111. Therefore, defendants were obliged to show that the claimed adverse possession ripened into full title before 1899. The only witness who had any knowledge from personal memory and observation of the condition of the street for a period of 15 years prior to 1899 was Mrs. Verrier, one of the defendants. She testified that the part of the street on which the lots owned by defendant George E. Taylor fronted was fenced and used as a pasture for over 15 years prior to 1899; that that part of the street on which the lots owned by defendant Ralph W. Richardson fronted had been partially obstructed by a ware-house located partly in the street, but the warehouse was not placed there until about 1886. Therefore, this occupancy was for a period of less than 15 years prior to 1899. Mrs. Verrier could not recall who occupied the lots now owned by defendant Matt N. Weber before 1899, but she did recall that cattle and horses were at times staked in the street. Who owned the livestock or under what claim they were kept there she did not know. In 1889, one Holden E. Siegert acquired title to the Weber lots, and thereafter he placed a chicken coop and certain plastering equipment in the street. Siegert's intrusion upon the street was for less than the required 15 years. The part of the street on which the lots owned by defendant Ramby C. Rasmussen fronted had been used as a pasture before 1889. At one *303 time a railway construction crew erected a bunkhouse in the street, where it remained for about six months. On the lots owned by defendant Clinton E. Belden was the Stevens dwelling house, which from 1882 extended about three feet into the street until it was destroyed by fire at a time which may have been five or more years prior to 1900. The house was old in 1882, but there is no direct testimony as to how long it had stood on the same location. Mrs. Verrier's lots were bought in 1903 from the Diamond Jo Steamship Line. From 1883 until 1899, that company maintained a warehouse on the riverbank west of First street. From this warehouse to a ramp on the east side of First street extended a wooden footbridge, over which merchandise was carted to and from the warehouse. The bridge, which was from six to nine feet high, crossed First street and was supported by wooden pillars, some of which were in the street. The bridge appears to have been in place from 1883 until after 1899.
1-2-3. We cannot quarrel with the trial court's findings that there was insufficient evidence to support a claim that adverse possession had ripened into full title prior to 1899. We are governed by the well-recognized rule that adverse possession may be established only by clear and positive proof based on a strict construction of the evidence, without resort to any inference or presumption in favor of the disselzor, but with the indulgence of every presumption against him. The burden of proving the essential facts which create title by adverse possession rests upon the disseizor. St. Paul Duluth R. Co. v. City of Duluth,
4. Regardless of the status of the evidence, defendants are in no position to establish that the possession of their predecessors in title was hostile. First street, as previously noted, has never been improved or officially opened to the public since its dedication in 1857. In Pierro v. City of Minneapolis,
"* * * It is settled law in this state that when a street is dedicated by plat, the city may choose its own time to occupy, open and use the street, and until it does so, possession of the street by the abutting owner is not regarded as hostile and the statute of limitations will not commence to run." *305
In the earlier case of St. Paul Duluth R. Co. v. City of Duluth,
"* * * 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."
5-6-7. Here, we have no evidence of abandonment other than that of nonuser. Abandonment is a question of intention, and nonuser is only an evidentiary fact aiding in its determination. Mere nonuser for any length of time will not operate as an abandonment of a public street. Stadtherr v. City of Sauk Center,
8-9-10. Defendants assert that, aside from any question as to loss of easement by adverse possession or by abandonment in fact, plaintiff is estopped to assert its easement by reason of long-continued nonuser, coupled with acquiescence in defendants' concurrent occupancy of the street. The shield of estoppel is not available to them. In Steele v. Fowler,
"The doctrine of estoppel is not applicable to municipal corporations as freely and to the same extent that it is to individuals. When it is applied, the basis of application is usually not because of the nonaction of the officers of the municipality, but because they have taken some affirmative action influencing another, which renders it inequitable for the corporate body to assert a different set of facts." See, 19 Am. Jur., Estoppel, § 168.
Clearly, mere nonuser, a form of nonaction, is insufficient to provide a basis for estopping a municipality. The reason for this rule was expressed by Mr. Justice Mitchell in Parker v. City of St. Paul,
"* * * The rights of the public are seldom guarded with the degree of care with which owners of private property guard their rights, and, consequently, acts or omissions which might weigh heavily against private persons cannot always be given the same force against the public. Moreover, streets, levees, and the like are often laid out on land acquired for or dedicated to such purposes with reference to future as well as present requirements, and therefore it is not legitimate to assume that the property has been abandoned merely because it has not yet been used by the public."
Long nonuser, although accompanied by acquiescence by a municipality in the occupancy of a platted but unopened street by abutting *307
property owners, is insufficient without more to raise an estoppel against the municipality, in that such occupants are presumed to hold possession subject to the permanent rights of the public. St. Paul Duluth R. Co. v. City of Duluth,
As illustrative of the essentials necessary to raise an estoppel against a municipality, we have the recent decision of City of Rochester v. North Side Corp.
In the words of the trial court, it is indeed unfortunate that these defendants made such extensive improvements before determining what, if any, rights they had to the street.
The order of the trial court is affirmed.
Affirmed.