12 Minn. 192 | Minn. | 1866
By the Cowrt
The land upon which the city of St. Paul is built was settled upon and occupied as the site of the town of St. Paul, before it was purchased from the government of the H. S. In 1818, Louis Roberts purchased. from the government the legal sub-division of which the strip of land in question — “St. Charles street,” — is a part, and in June, 1819, the government issued to him a patent therefor. In January, 181-9, Roberts sold a portion of his tract embracing the premises in question to H. Jackson, under whom the plaintiff claims title. Prior to this Roberts had deeded to Daniel Hopkins, a lot fifty by one hundred feet, which it is claimed by the defendants’ counsel, embraced part of the premises in question; but whether this Hopkins’ tract did in fact embrace any part of the premises claimed by the
On January 19th, 1849, Jackson sold part of his tract ad-, joining this strip to Charles Cavalier, and in the deed described the premises sold as bounded on one side by, and “fronting on” this strip, which he designated “St. Charles street.” (This strip has since been known as “St. Charles street.”) Subsequently he sold other portions of his said tract, including his entire interest except this parcel, to Franklin Steele. Of the land sold Steele, a part lay east of and contiguous to this strip, and a part west of and contiguous to it, and in Steele’s deed, Jackson described each part of the premises conveyed as bounded on one side by “ St. Charles, street.” In 1854, the Territorial Legislature granted to St. Paul a city charter, in which is the following provision :
“ The Common Council shall, at the first meeting appoint three’ commissioners, one from each ward who, with the city surveyor or such other assistant surveyor as the common council may appoint, shall cause a new and accurate survey to be made of the lines and boundaries of all the streets, alleys, sidewalks, public grounds, wharves or landings, and blocks, and cause to be established such permanent landmarks as they may deem necessary, and to cause an accurate plat or
In pursuance of this provision of the city charter, the city caused to be prepared, in 1854, a map of the city which is hereafter designated the “ Folsom Map.” This map does not designate the premises in question a street. The owners of lots in the town of St. Paul, among whom was H. Jackson, caused a map of the town to be made, which they signed February 28th, 1849. On this map “ St. Charles street ” was not laid down, nor were the premises in question designated as a street. This map is hereafter referred to as the “ map of St. Paul.” There were also published as a mere private enterprise, hi 1850, 1851 or 1852, a map of St. Paul, called “ The Conway and Nichols Map,” on which “ St. Charles street” was laid down. The evidence, we think, clearly shows that this-map was not published prior to 1851; certainly not before late in the autumn of 1850. The evidence shows that Jackson, at different times declared that he did not intend to dedicate to public use the land in question. This plaintiff having acquired Jackson’s interest to said strip of land, claims it as his private property. The defendant alleges that it is a public street duly dedicated to the use of the public. For the purpose of determining this adverse claim, the plaintiff brings this action under Ohap. 75 of the General ¡Statutes. Sections one and two of said chapter read as follows:
Possession of the plaintiff (by-himself or tenant) and an adverse claim by the defendant are the only facts which the statute requires to constitute a cause of action. This action is not brought to determine the plaintiff’s title but the defendant’s claim. This is the language of our statute, and seems clearly to us to be its meaning, and it has been so held by this court in State vs. Fish, 2 Minn., 153.
The plaintiff must, in order to recover, prove his possession. The burden is then on the defendant tojprove his adverse claim. In such an action the title or right of a third party could not properly be litigated, and if it could, the fact that such ,third party had a well founded claim or title would be no justification of a defendant for making an unfounded or false claim. If a defendant’s claim is unjust it should not be supported, whatever may be the rights of the plaintiff as against third parties. Possession is prima facie evidence of title, and in- all cases may ripen into title, and every false or unfounded adverse claim is a trespass on the rights of the person in possession, which no third party has a right, either morally or legally to commit. Whether possession is legal is a question that concerns only him in possession and the legal owner or person legally entitled to the possession, and neither the law nor public policy will allow thóse who have no interest in the question to call on him who is prima facie owner for proof of the validity of his claim. It is a well settled
It is insisted that the deeds to Cavalier and Steele describing the portion of Jackson’s lot deeded to them as “fronting on” and “bounded by” “St. Charles Street,” estop this plaintiff from denying that “ St. Charles Street ” was dedicated to public use. This position-we think is not tenable. In order as we have seen to raise a statement or admission by one party from the rank of evidence to the dignity of an estoppel, it must not only be shown that its retraction will be injurious to the other, but that the injury results from a cou/rse of acUon induced by the admission. Where a dedication is accepted by. the public, the presumption is that it cannot be revoked without prejudice to rights that may have been vested on the faith of the dedication, and the owner of the servient estate will not be permitted to revoke the dedication under such circumstances; but until there is an acceptance on the part of -the public “ the dedicator may revoke his act; it remains a mere voluntary proposition. ” Baker et al. vs. City of St. Paul, 8 Minn. 494. But it not having been admitted or found as a fact by the jury, either that Jackson intended to dedicate, or that the public accepted the dedication or acted on the faith of it, or that rights vested on the faith of such dedication would be prejudiced by its revocation or denial, there is no ground whatever for holding as a legal proposition that the language of description or recitals in said deeds estopped this plaintiff from showing, as against this defendant, that Jackson did not dedicate these premises to public use.
"We think the charge in this respect was erroneous. The land in question was purchased from the government of the U. S. in the fall of 1848, and a patent was issued therefor in June, 1849. Jackson, prior to the issuance of the patent, had the equitable title, the H. S. having the mere naked fee. It was under these circumstances, Jackson’s land, as against every person else. He had a right to convey or dispose of it in any way, and if he dedicated it to the public there is no reason why he should not be estopped from revoking such dedication to the prejudice of any individual, or of the public. A party is as much estopped from acting fraudulently or unjustly with reference to property to which he has not strictly and technically a legal title, as with reference to property to which his title is perfect.
The doctrine of estoppel applies with equal force and on the
Proctor vs. Town of Lewiston, 25 Ill., 153. In this case the Supreme Court of Illinois lays down the law on this subject as follows: “It was the right of the defendant to have his declarations, as well as his acts, go to the jury as evidence of his intention. Nor should he be confined to acts and declarations made at the time when he placed the fence on the line of the alleged road, but his subsequent acts and declarations should all go to the jury. The more remote from the time the alleged dedication ivas made, the less weight no doubt would they be entitled to as tending to rebut the intention of the dedication, but it would be for the jury to determine whether such declarations were the result of a change of purpose and a design to resume a dedication which lie" at the time intended in -fact to make to the public, or whether they were consistent with the original purpose.” See also on this point, 2 Smith's lead, cases, 225-6, a/nd cases there cited. For the same reason the plat of the town of St. Paul, (Bronson’s map) was properly admitted in evidence; whether legally executed as a plat in accordance with our statute, is - immaterial. It was at least a declaration by
Franklin Steele testified that he bought property of Jackson in January, 1849, and' took another deed in 1850. That Jackson at the time of the transfer had a map. “I think (he says) at that time there was a plat of the city, and also a smaller one of the block itself, (31). * * * I think I objected to the small diagram as not being accurate ; he said it was not necessary to put that on record (plat of 31). He said something about recording a plat of the town; that the map of the city was imperfect and not completed. * * * St. Charles Street was on the plat of 31, he showed me; don’t recollect of its being on the general map. * * * There was a large map, I recollect, examined when I purchased the property; I think it belonged to Conway & Nichols. He had the map and showed it to me after we went over the ground; I saw it afterwards in Judge Lambert’s office. As ‘to the small map, when I objected-, he stated that a correct map had been or would be placed on file.”
P. F. Lott says as to the map: “I had mj’ office in Jackson’s house, in fall of 1849 ; I moved my office to Third street afterwards, but boarded with him. I had a map (the Nichols’ map,) in my office on Third street.”
C. P. Y. Lull says : “It was got up about 1850.”
H. F. Masterson says : “My best recollection is that the map was issued late in 1850, or spring of 1851.”
Joel "Whitney says: “He was interested with Nichols in publishing it. I think it was published in 1852. I arrived in September, 1850.”
This evidence was all before the court when the map was offered. The only ground on which the map could be evidence, is that Jackson had affirmatively assented to its correctness, and the only evidence of such assent is that he made the sale to Steele with reference to it. This sale was made to Steele in January, 1819, and the evidence most clearly shows that the map had not been issued at that time. The court therefore, was correct in refusing to receive the map as evidence.
As to the question of abandonment we do not deem it necessary to examine at length the charge of the Court. We are unable to find in this case the least evidence of an abandonment of the easement except as it may be inferred from the non user of the right. Whether non user for any length of time would bar the right of the public to an easement once clearly obtained is a question perhaps not free from doubt, but there perhaps can be no doubt on general principles but that an abandonment will not be presumed from non user for a lapse of time less than that which would raise the presumption of a grant. See 2 Smith’s Leading Cases, 227; Wash. on Easement, sec. 6, chap. 5; Corning vs. Gould, 16 Wend., 534-5; 2 Wash. on Real Prop., (2d Ed.,) sec. 3, page 23, et seq.
The non-user in this casé, if indeed there was a non-user for any given time, was for a period much less than twenty years, and it was not of such a character as to show any intention of abandoning the easement, (if an easement ever existed.) General travel on this street necessarily ceased on account of the grading down of Third and Bench streets, making it nearly inaccessible. There was no claim or holding-adverse to the public, except by the plaintiff and his grantors, which was never acquiesced in. Under such, circumstances,
As to the taxation of “St. Charles street,” and the making of the Folsom map, without showing it, it is sufficient to say that the city could not, either by such taxation or omission from the map, vacate a street, and we have no right to presume that they intended to attempt what they had no power to do¡ The Folsom map was clearly prima facie evidence. It was made in pursuance of an act of the Legislature, and under the supervision of the City Council, and the presumption is that it in accordance with the act under which it was made showed all the streets. But it was only prima facie evidence of this. The Legislature manifestly never intended to permit the City Council to vacate streets by merely omitting them from the map. The map on general principles would only be prima facie evidence, and the act in pursuance of which it was made makes it nothing- more. In passing on the question of dedication an important question for the jury must be whether the evidence taken together shows that Jackson intended such dedication, and the fact that he left open the strip of land in question to the public as a street would doubtless be considered evidence of such intention. But if the evidence also showed that it was necessary or convenient for Jackson to have this open as a way to his house and place of business, it would be for the jury to say whether his permission of its .use by the public under such circumstances was any evidence of an intention to grant a perpetual easement. This we think was a question of fact for the jury and not a presumption of law. The plaintiff for the ptvrpose of showing his possession, offered in evidence a certificate of redemption dated May, 1865, showing that W. P. Warner had redeemed said strip of land from the sale thereof in Bamsey County for taxes of 1862 and 1863. The defendant having objected to it this evidence should not have been received
We have no means of ascertaining from the question what answer it was intended to call forth. Mr. Hopkins’ declarations as to the street, would ordinarily not be evidence; but if the defendant’s counsel, as they intimate, wished to prove that Hopkins, while owner of a part of “ St. Charles street,” dedicated the same to public use as a street or under such circumstances assented to the dedication of the street by Jackson, his declaration as to such dedication or assent, would be competent evidence. But we infer that they wished to show Ms declaration generally “ as to the street,” and such declaration would not be evidence. It seems very clear that the case turns on the question of Jackson’s dedication, as the plaintiffs do not pretend that any failure or refusal of Hopkins to assent to or acquiesce in such dedication rendered it imperfect or inoperative. But as it is possible that the declaration of Hopkins might be evidence, the answer to the general question propounded should have been heard, the court limiting the defendant to the proof of such declarations only as would be competent evidence. Whether the certifi
We think that this was competent evidence of the question of acceptance of the dedication by the public. If there was a dedication of these premises, it is to be .presumed that the fact wasdknown to the citizens of the town or city of St. Paul, and the act of each individual done on the faith of such dedication, (and not in pursuance of the express or implied covenants of any agreement with the owners of the servient estate,) are evidence tending to show an acceptance by the public. The common law does not require an acceptance to be proven by acts done or authorized by public officers ; and' though the acts of a single individual would ordinarily be very unsatisfactory evidence of a public dedication, its weight is to be determined by the jury. The last error alleged in the case is that the evidence does not justify the verdict. It is not for us to determine on which side is the •preponderance of evidence. That is for the jury. But manifestly there was not such a lack of evidence as to justify the court in setting aside the verdict on that account. The judgment is set aside and a new trial ordered.