Brakken v. Minneapolis & St. Louis Railway Company
| Decision Date | 31 December 1881 |
| Citation | 11 N.W. 124,29 Minn. 41 |
| Parties | John A. Brakken v. Minneapolis & St. Louis Railway Company |
| Court | Minnesota Supreme Court |
This action was brought in the district court for Freeborn county and was tried before Farmer, J., and a jury, resulting in a verdict of $ 700 for plaintiff. The testimony in behalf of plaintiff as to the value of the house and lot ranged from $ 1000 to $ 1500. Defendant appeals from an order refusing a new trial.
For the errors above indicated the order denying a new trial is reversed, and a new trial granted.
John Whytock, for appellant.
J. H Parker, for respondent.
This suit was brought for consequential damages, alleged to have been sustained by the plaintiff, from the construction of the defendant's railroad across a street upon which the plaintiff's residence was situated. The plaintiff's lot fronted four rods on the street, and extended back seven rods. The street did not extend westward beyond the plaintiff's property, but communicated on the east with the streets of the village of Albert Lea, and there was no means of access to his residence, except from the east over this street without passing over private property. The defendant, in the construction of its railroad, made an excavation seven and a half feet deep, and 35 feet wide at the top, diagonally across the street, at a distance of 35 feet at the nearest point from the line of the plaintiff's lot, and not intruding upon his soil. The approaches to the railroad were not graded, and the excavation cut off all convenient access to the plaintiff's lot, and rendered it practically inaccessible except over private property. The plaintiff claimed that at the time of the construction of the railroad this street was, and now is, a public street, having been dedicated to the public and accepted as such. The defendant insisted that it was private property, and that neither the public nor the plaintiff had any easement in it, and that, if it was a public street, the plaintiff had not shown any special injury to himself from its obstruction different from that sustained by the general public.
As there must be a new trial for errors hereinafter mentioned, we deem it sufficient to say upon these questions that no formal act of the corporate authorities, by way of accepting a street dedicated by the owner of the soil, is necessary to its establishment as such. A common-law dedication of a street or highway may be shown by the acts of the owner of the land indicating an intention to dedicate, and acceptance may be shown by user by the public, and by an actual assumption of care and control by the public authorities, as by grading or working upon it. We are of opinion that the evidence was sufficient to justify the jury in finding that the street in question was a public street. City of Mankato v. Warren, 20 Minn. 144; Kennedy v. Le Van, 23 Minn. 513.
With reference to the other point, it is well settled that the owner of lots abutting on a public street, whether he owns the soil to the centre of the street or not, has a special interest in the street different from that of the general public. It may not be very important to the general public whether they shall be able to get to the private property of an individual, but it is important to the individual whether he should be able to get to and from his residence or business, and whether the public have the means of getting there for social or business purposes. If there be an obstruction in the street in front of or near his abutting property, so as to prevent access to it, the damage which he sustains is different, not merely in degree, but in kind, from that experienced in common with other citizens, and he may maintain a private action for the special injury to him, notwithstanding there is also a remedy in behalf of the public. In most of the cases which have arisen, the obstruction in the street was immediately in front of the lot of the party complaining of it, but the reason of the rule, and therefore the rule itself, extends to the case of any obstruction which cuts off all means of public access to the plaintiff's lot. Wilder v. De Cou, 26 Minn. 10, 1 N.W. 48; Lackland v. North Missouri R. Co., 31 Mo. 180; Hawley v. Mayor of Baltimore, 33 Md. 270; Park v. Chicago & S.W. R. Co., 43 Iowa 636; Bissell v. New York Cent. R. Co., 23 N.Y. 61.
The second branch of the case relates to questions of damages. At the request of the plaintiff's counsel the jury were allowed to view the premises. The court instructed the jury The defendant excepted to this instruction. In Chute v....
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