Parker v. City of St. Paul

• Decision Date: 10 November 1891
• Citation: 50 N.W. 247,47 Minn. 317
• Parties: Theodore E. Parker v. City of St. Paul
• Court: Minnesota Supreme Court

50 N.W. 247

47 Minn. 317

Theodore E. Parker v. City of St. Paul

Supreme Court of Minnesota

November 10, 1891

Ejectment, brought in the district court for Ramsey county for lots in the city of St. Paul. Defence, title under a warranty deed of the lots from plaintiff and his wife executed September 13, 1884, conveying the lots to defendant the deed stating, after the granting clause, tat it "is made only for a perpetual easement for the purpose of a public street or levee over and upon the above described property as condemned by the board of public works of the city of St. Paul for such street or levee along the bank of the Mississippi river in the Sixth ward of the city of St. Paul, and by the said board of public works confirmed on the 28th day of July, 1882." In his reply the plaintiff alleged in extenso the proceedings in a "pretended condemnation" of the lots in 1881 and 1882, for a public street or levee, under Sp. Laws 1881, c. 120, and that at the time of the conveyance he supposed that the city had acquired an easement by such proceedings, and therefore, for the consideration expressed in the deed, conveyed the easement. He alleges that the condemnation proceedings were wholly void, and also that defendant has abandoned the project of the street or levee, has never built or opened it, and does not intend to do either. He also alleges that about May 1, 1889, the defendant, without his consent, inclosed all the lots in controversy with a good and substantial fence, and built two substantial and permanent dwelling-houses, and has since maintained them, on the property, and that this is, and was by defendant when doing it known to be, wholly destructive of any easement the defendant may have acquired by the condemnation proceedings and by the deed. A motion for judgment on the pleadings was made by defendant, and granted by Brill, J. The plaintiff appeals from the judgment.

Judgment affirmed.

P. M. Qvist, for appellant.

Daniel W. Lawler and Hermon W. Phillips, for respondent.

OPINION

Mitchell, J. ^[1]

The condemnation proceedings instituted by the defendant under the provisions of chapter 120, Sp. Laws 1881, cut no figure in this case, and it is wholly immaterial whether they were valid or void, as the city rests its right to the possession of the premises in controversy exclusively upon the deed from plaintiff set out in the answer, the execution of which is admitted in the reply. Neither is it necessary to consider whether that deed conveyed the title in fee, or, as claimed by plaintiff, only an easement for the purposes of a street or levee; for, conceding the city's right to be only the latter, it would constitute a complete defence to plaintiff's action, (which is the ordinary action of ejectment,) unless that right has been extinguished. The only claim to that effect in the reply is that this easement has been lost by abandonment, and the only facts alleged as constituting such abandonment are two, -- one of nonuser, and the other of misuser; the first, being the bare fact that no street or levee has ever been constructed, opened, or used over and across the premises; and the second, that in 1889 the city fenced the premises with a substantial and permanent fence, and erected thereon two dwelling-houses, which it still maintains, which was done for a purpose...