Brisbine v. St. Paul & Sioux City R. Co.

• Decision Date: 12 July 1876
• Citation: 23 Minn. 114
• Parties: ALBERT G. BRISBINE <I>vs.</I> ST. PAUL & SIOUX CITY RAILROAD COMPANY.
• Court: Minnesota Supreme Court

Page 114

23 Minn. 114

ALBERT G. BRISBINEvs.

ST. PAUL & SIOUX CITY RAILROAD COMPANY.

Supreme Court of Minnesota.

July 12, 1876.

The St. Paul & Sioux City Railroad Company, in March, 1874, presented its petition to the district court for Ramsey county, setting forth, among other things, that it would be necessary for it to appropriate, for the purposes of its road, certain real estate in the city of St. Paul, described in the petition as follows: "Commencing at a point in the centre line of Wabasha street, north of, and nineteen feet distant

from, the centre line of the main track of said railroad as constructed; thence westwardly, and parallel to said centre line of said railroad track, to a point in the prolongation southwardly of the east line of block number 35, in the original town of St. Paul, as platted and on file in the office of the register of deeds of said county of Ramsey, which point is nineteen feet from the said centre line of said railroad track, and twenty feet from the south-east corner of said block 35; thence westwardly, and parallel to, and twenty feet distant from, the south line of said block 35, to a point in the centre of St. Peter street; thence southwardly on the centre line of St. Peter street prolonged to the centre of the channel of the Mississippi river; thence down the centre of said channel eastwardly to the centre line of Wabasha street prolonged; thence northwardly along the centre line of Wabasha street to the place of beginning; subject, however, to the easement now existing in said premises as a public street and levee."

The petition further sets forth "that the names of the persons and corporations, the owners of said property, or some part thereof, as far as known to your petitioners, are the following, to wit: Hiram Rogers, Thomas Holyoke, Albert G. Brisbine, D. A. Robertson, Elizabeth Whitacre, widow and legatee of Robert Whitacre, deceased, and the city of St. Paul."

In accordance with the prayer of the petition, three commissioners were appointed by the court, who thereafter met and examined the line of railroad and the property sought to be taken, etc., and described in the petition, and heard the allegations and proofs of the parties interested, and made and filed their report, making a separate assessment of damages to each of the owners of land, property, easement, or other right sought to be taken — it being stated in the report "that the said award of damages is made upon the basis of said petition, to wit, that the said taking, appropriation and use of the said property by the said railroad

company is and will remain subject to the easement now existing in said premises as a public street and levee;" but no other streets than Wabasha and St. Peter are mentioned in the report, nor does it contain any description of the levee mentioned, or any further reference to it. After describing the property of Elizabeth W. Whitacre, and the damages awarded to her, the report proceeds: "That we award to Albert G. Brisbine, owner of the following-described land and property — to wit, commencing at a point south of, and twenty feet distant from, the centre line of block 35, aforesaid, prolonged; thence eastwardly, and parallel to, and twenty feet distant from, the south line of said block 35, fifty-three feet, more or less, to the west line of land owned by Elizabeth W. Whitacre, widow and legatee of Robert Whitacre, deceased; thence southwardly along said last-named line to the centre of the channel of the Mississippi river; thence westwardly up the centre of said channel, fifty-three feet, more or less, to the said centre line of said block 35, prolonged; thence northerly along said last-named line to the place of beginning — as the amount of damages arising to him, the said Albert G. Brisbine, from the taking thereof, as stated aforesaid, the sum of fifty dollars." The commissioners also awarded damages to the city of St. Paul for the taking of a piece of land described in the report, and added that these three tracts constitute the identical property described in defendant's petition. From this award the plaintiff appealed to the district court for Ramsey county.

At the trial before Wilkin, J., it appeared that in the original town of St. Paul, as surveyed in 1847, block 35 is bounded on the north by Bench and Third streets, on the east by Wabasha street, on the west by St. Peter street, and on the south by a strip of land, marked on the plat of such survey, filed in 1849, as Water street, and stated in the certificate on the plat to be thirty feet in width; and that the block is 100 feet in depth from the north to the south line. It also appeared that all the land between the north line of block 35 and the river, as it then existed, was part of lots 1 and 2, of section 6, township 28, range 22, according to the survey by the United States. It also appeared that the property described in the petition, and sought to be condemned by defendant, was composed of a strip of land ten feet wide off the south side of Water street, as described on the plat, and of land south of Water street, and between it and the present margin of the river, and thence to the centre of the channel; and that the land between block 35 and the present margin of the river lay at the foot of the bluff, the top of which, at the north line of block 35, is about ninety feet above the level of the river.

The court ruled that the plat, not being in compliance with the statutory requirements, was ineffectual to work a statutory dedication of Water street to the public; and the defendant introduced evidence tending to show a commonlaw dedication of land south of block 35 as a street, and the user and improvement of such street by the public. The defendant also introduced evidence tending to show that, at the date of the plat, block 35, as marked thereon, extended to the river; that the street south of it had been constructed by the city, since the date of the plat, by filling the river with material taken from the bluff, and that all the land between the south line of block 35 and the margin of the river, at the date of the award, had been reclaimed from the river, since the making of the plat, by means of filling done by the city of St. Paul and by the defendant. On the other hand, the plaintiff introduced evidence tending to prove that, at the date of the plat, there was, between block 35, as therein described, and the river-margin, at the point in question, a strip of land varying in width from thirty feet at the east end of block 35, to eighty feet at the west end of the block. The location of the property sought to be condemned is shown in the diagram on page 118, in which the entire property sought to be taken is enclosed within dotted lines, and the line of the river is shown as it existed at the

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

date of the award. That portion for which compensation is claimed by plaintiff comprises the strip, 53 feet in width, enclosed on three sides by dotted lines, and extending to the river. On the original map or plat above mentioned, the river bank is indicated as north of, and nearly parallel with, the railroad track marked on the diagram, and on that map there is nothing between the south line of block 35 and the river to indicate the south line of a street. The track of defendant's railway was laid across the land sought to be condemned, in 1869, and has ever since been used by defendant.

The paper title shown by plaintiff was as follows: Lots 1 and 2, before mentioned, were granted by the United States of Louis Robert, by patent of June 1, 1849. Prior to the issuing of his patent, and on January 24, 1849, Robert had conveyed, by metes and bounds, to one Randall, a tract of eleven acres, forming part of lots 1 and 2, and including all the land between the north line of block 35 and the river, the plat before mentioned being made after the conveyance from Robert to Randall, and not signed by the latter. On May 10, 1852, Randall conveyed to plaintiff and D. A. Robertson "all that parcel of land which is bounded by Bench street, Wabasha street, the low-water mark on the Mississippi river, and St. Peter street, which parcel of land includes block numbered thirty-five in the original town plat of St. Paul, Minnesota Territory." On April 24, 1855, Robertson made to the plaintiff a quitclaim deed of "all that piece or parcel of land between Wabasha and St. Peter streets, in the town (now city) of St. Paul, lying east of a line drawn from a point on Bench street, on the north line of block 35, equidistant from said Wabasha and St. Peter streets, to a point also equidistant from said last-mentioned streets, on a line drawn in the Mississippi river, opposite said lands and parallel with the south line of said Bench street, as it is laid down at the point first above fixed on the block aforesaid."

On this branch of the case the defendant introduced in evidence the following conveyances by plaintiff, viz.: On September 10, 1855, the plaintiff conveyed to Robert Whitacre "all of the east half of block 35 in the original plat of said town of St. Paul, save and excepting the following: Beginning at the centre of the north line of said block 35, on Bench street; thence easterly along the said north line fifty-three feet; thence southerly, parallel with a line dividing said block in the centre, as heretofore established by said party of the first part and D. A. Robertson, to a line drawn in the Mississippi river, parallel with the south line of said Bench street; thence westerly, along said line in said river, to said division or centre line of said block; thence northerly, along said division or centre line, to the place of beginning." On October 2, 1860, the plaintiff and his wife conveyed to Aaron G. Byram (to whom they had previously mortgaged the same property) "fifty-three (53) feet off the west side of the east half of block numbered...