Brakken v. Minneapolis & St. Louis Ry. Co.

• Decision Date: 17 July 1883
• Citation: 31 Minn. 45
• Parties: JOHN A. BRAKKEN <I>vs.</I> MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY.
• Court: Minnesota Supreme Court

31 Minn. 45

JOHN A. BRAKKEN vs. MINNEAPOLIS & ST. LOUIS RAILWAY COMPANY.

Supreme Court of Minnesota.

July 17, 1883.

Plaintiff brought this action in the district court for Freeborn county, for damages alleged to have been sustained from the construction of defendant's railway across a street or road on which his residence was situated, his lot fronting four rods thereon, and extending back seven rods. The street did not extend westward beyond his lot, but connected, on the east, with the streets of the village of Albert Lea, and there was no means of access to his residence from the east, except over this street or road, without passing over private property. The defendant, in building its railway, made a cut diagonally

across this street or road, 35 feet distant, at the nearest point, from plaintiff's lot. This cut was seven and one-half feet deep and 35 feet wide at the top. The approaches to the railway, which was built in the cut, were not graded, and thus all convenient access to plaintiff's lot was cut off, and it was made practically inaccessible except over private property. The excavation was made and the railway built in 1877. The defendant, in its amended answer, denied plaintiff's title to the lot, alleged title in fee in itself to the land occupied by the excavation, and denied the existence of any easement therein for the public or the plaintiff.

After the decision of a former appeal (reported, 29 Minn. 41,) the cause was retried before Farmer, J., and a jury. At this trial it appeared that one Lucius P. Wedge once owned in fee the plaintiff's lot, the place of the excavation, and the intervening and adjacent property, and died seized thereof, in 1858, his widow, Mary F. Wedge, (afterwards, by remarriage, Mary F. Armstrong,) and his only son, Clarence, being his sole devisees of all such real estate. In 1874, Mrs. Armstrong, (being then a widow,) as executrix, sold and agreed to convey to plaintiff the lot described in his complaint, and he at once entered into possession, and built thereon a house in which he has since resided. In the contract of sale the lot is described by metes and bounds, without reference to any street or plat; but there was evidence that, in the negotiations for the sale, Clarence Wedge (who negotiated it) exhibited to plaintiff a plat showing a street or road in front of and extending eastward from the lot, as alleged in the complaint, and stated to the plaintiff that this street was dedicated to public use. In January, 1878, Mrs Armstrong and Clarence Wedge, for a full consideration, conveyed in fee to the plaintiff the strip in which the excavation was made, with covenants of warranty and against incumbrances. There was much evidence introduced upon the question whether Mrs. Wedge and Clarence had ever made a valid dedication of the land in the alleged street to public use, and upon the question of the existence of any easement thereon in favor of plaintiff, and many exceptions were taken to...