38 Minn. 122 | Minn. | 1888
The plaintiff seeks to recover damages against the defendant, for certain acts of trespass to several village lots alleged to belong to him, and specifically described as lots 8, 9, 10, 11, 12, 13, and 14, in block 10, in Demmon’s addition to North Minneapolis, ■according to the recorded plat of the same. The pleadings, however, .admit that the defendant has duly taken and appropriated for its railroad, by virtue of condemnation proceedings, under Gen. St. 1878, c. 34, title 1, lot 13, the front 55 feet of lots 8 and 9, and also that part ■of the street lying in front of and adjoining lot 14, above described, and that it has built its railroad upon the front 55 feet of lots' 8 and ■9, over and upon the front portions of lots 10 and 11, and in the •street in front of lots 12 and 13, and in the street over the strip condemned in front of lot 14.
1. As respects lots 8, 9, and 13, the trespasses complained of eon■sisted in excavations or embankments caused to be made by the company in that half of the street in front of and next adjoining the lots. By the descriptions under which the lots were condemned and appropriated, the company took presumptively to the centre of the street; .and, subject to the rights of the public, the defendant may enter upon and may use that portion of the street so acquired for its improvements, just as it may use and occupy any other portions of the lots in question. Under a description of village lots eo nomine, as platted, the land in the street passes as parcel of the lots, and not as appurtenant. In re Robbins, 34 Minn. 99, (24 N. W. Rep. 356.) And under that description, the title, right, or interest acquired, whatever it be, in the street is presumed to be included in the estimation of the value or damages in the condemnation proceedings, and such estimation is usually deemed to be the value of the lots as described, whether in such proceedings under railway charters the company acquires the ■fee, or the land for its corporate purposes only. Robbins v. St. Paul, S. & T. F. R. Co., 22 Minn. 286. No damages were recoverable by plaintiff for the alleged trespasses to these lots.
3. As to the lots 10, 11, and 12, the defendant established on the trial, by indisputable evidence, its ownership of the paper title regularly derived from the patentee of the United States, and is the actual owner thereof in fee, and entitled to the possession of the same, unless its grantors were disseized and barred by an actual adverse possession which has inured to the benefit of plaintiff, and ripened into a right of possession equivalent to title.
The plaintiff, to support his title, offered evidence tending to show that one Peter Poncin, who had no color of title to these lots, in or before the year 1864, entered and occupied block 10, in which they are included, in connection with the adjoining blocks 9 and 11, which were all inclosed together, including the streets. The evidence also tended to prove that Poncin had and claimed title to block 9, except one lot, and upon this block he resided and erected substantial improvements ; and blocks 10 and 11, which were inclosed in part by line fences of the neighbors, connected by a fence built and maintained by him, together with the intervening streets, were used by him, in connection with block 9, chiefly for pasturage and tillage. His occupancy continued down to the year 1871, when he made a sale and conveyance to one Fluhrer, who immediately entered into possession, lived upon block 9, and used and occupied the other blocks as Poncin had done. After several years, Fluhrer died; but his widow continued in possession until she sold to the grantor of plaintiff in the year 1879, who immediately succeeded to her possession, and has since retained the same. No deeds or record evidence of these sales and transfers were introduced by plaintiff, though admitted to be in writing; but the plaintiff claims that it sufficiently appears from the evidence in his behalf that the entry of Poncin was hostile, and the
Whether, upon a careful examination and analysis, the plaintiff’s ■evidence would be found to sustain this contention, we deem it unnecessary to decide, for the reason that we are of the opinion that the record evidence of the transfers referred to, introduced by the defendant, make it manifest that, as respects the three lots in question, there was no privity between the several successive occupants, and that the plaintiff has not yet acquired title thereto by adverse possession.
It appears that in 1863 a tax deed of the seven lots described in the complaint, and certain lots in block 11, was issued by the auditor of the county to a tax purchaser. In 1871 the owner of the title to lots 10, 11, and 12 in controversy bought in and acquired the interest of such tax purchaser, and in 1867 the owner of the tax title conveyed his interest in block 10, except the three lots last above mentioned, to Catherine Poncin, wife of Peter Poncin, and thereafter, in October of the same year, a lease was executed and placed on record by Catherine Poncin and husband to one Kecgelsperger, of all the lots in block 9, except lot 7, and in addition 15 lots in blocks 10 and 11, . but excepted therefrom lots 10, 11, and 12 aforesaid, and such lease expressly recited that the title to the 15 lots referred to was a tax title. The conveyance of the Poncins to Fluhrer was a quitclaim, deed, dated May 15,1871, and recorded May 18,1871. The description therein was as follows: “All of block 9, and also all of blocks 10 and 11, Demmon’s addition to North Minneapolis, intending to convey only those lots in said blocks 10 and 11 which - have been quit-claimed to said parties of the first part, or either of them, by conveyance of tax titles. In the said block 9, there is excepted lot 7, as not belonging to the said parties of the first part. ” On the first day of May, 1879, the deed under which plaintiff claims was executed, and afterwards duly recorded, and contained a description of the same 15 lots in blocks 10 and 11 above mentioned as being acquired under the tax sale, but did not include lots 10,11, and 12, block 10, in question here.
We are now to consider the exception of the defendant to the refusal of the court to instruct the jury that, upon the evidence in the
The cardinal rule of construction is to ascertain and give effect to the intention of the parties to the deed; and to this end the court must consider all parts of the instrument, and the construction must be upon the entire deed, and not upon disjointed parts of it. And if the language is ambiguous, and it is necessary in order to ascertain the intent of the parties, evidence of the circumstances, including the situation of the parties and of the property, and the state of the title, maybe received. French v. Carhart, 1 N. Y. 96, 102; Norris v. Beyea, 13 N. Y. 273, 283; Jackson v. Myers, 3 John. 388, 395, (3 Am. Dec. 504;) Coleman v. Beach, 97 N. Y. 545, 553 ; Austrian v. Davidson, 21 Minn. 117. It is competent for the grantor to convey such interest in or portion of his lands as he chooses, and to adopt any
In Bates v. Foster, supra, the description of certain lands granted was followed by these words: “Meaning hereby to convey to the said Bates the same premises and title as conveyed to me by David Witham, and no more.” The case closely resembles this. It was held that the interest acquired by the grantor from Witham alone passed. Says the court: “The defendant in his deed says he intended to convey the same he received from Witham, and no more; but it is said that these words are repugnant to what goes before, and are therefore void. Such a construction is not admissible, unless they are necessarily so inconsistent that both cannot stand together. Whatever may have formerly been the rules of construction in this respect, in modern times they have given away to the more sensible rule, which is, in all cases, to give effect to the intention of the parties, if practicable, when no principle of law is thereby violated.” Metcalf, Contracts, 290; Miller v. Hannibal & St. Joseph R. Co., 90 N. Y. 430. Substantially similar clauses received a similar interpretation in Flagg v. Bean, 25 N. H. 49; Ousby v. Jones, 73 N. Y. 621; and Bent v. Rogers, 137 Mass. 192.
In the deed before us, the exception of lot 7, in block 9, is clearly good; and as to blocks 10 and 11, the intention to include only the lots which the grantor had acquired from the tax purchaser, and to
Fluhrer went into possession under this deed, which is the evidence of what he purchased, and Ponein abandoned the possession. The transaction indicates that the latter did not claim'these lots as owner, and that he considered his occunancy-JihereofL sandwiched as they were -between the lots which he held under the tax deed, and included in one general inclosure, as merely precarious. The possession of Fluhrer must be referred to the deed, and, as to these lots, there was no privity between him and Ponein. He merely succeeded to the possession of the latter, but there was no unity of possession under an original hostile entry by Ponein. As held in Sherin v. Brackett, 36 Minn. 152, (30 N. W. Rep. 551,) to establish adverse possession it need not be continued in the same person; but, when held by different persons, it must be shown that privity existed between them. Each succeeding occupant must show title under his predecessor in order to link his possession with that of the latter under the original entry. Ang. Lim. § 413; Christy v. Alford, 17 How. 601; San Francisco v. Fulde, 37 Cal. 349. Thus, as between testator and devisee, or ancestor and hejr, the disseizin commenced by the former is continued in the latter in accordance with his title, and is referred to the original entry. It is plainly distinguishable from a case of successive entries and new disseizins. Haynes v. Boardman, 119 Mass. 414. The possession of the heir or purchaser is regarded a continuance of that of the ancestor or grantor on account of his privity of title to the land. Leonard v. Leonard, 7 Allen, 277, 282. If there is no privity, a new and distinct disseizin is made by each disseizor. Sawyer v. Kendall, 10 Cush. 241. And in Ward v. Bartholomew, 6 Pick. 409, it was distinctly held that, where a disseizor conveys part of the land, and the grantee under color of the deed enters upon the whole, the possession of the first disseizor will not avail the grantee in regard to the part not embraced in the deed. No connected or continuous adverse possession is shown in this case between Ponein and Fluhrer, or between Fluhrer and the plaintiff, and Poncin’s deed ex
Judgment reversed, and cause remanded.