Case v. Favier

• Decision Date: 01 January 1866
• Citation: 12 Minn. 48
• Parties: JAMES R. CASE v. LOUIS FAVIER.
• Court: Minnesota Supreme Court

Page 48

12 Minn. 48

JAMES R. CASEv.

LOUIS FAVIER.

Supreme Court of Minnesota.

Appeal from order of district court, Dakota county, denying a new trial.

The opinion states fully the facts.

L. Van Slyck and Gorman & Davis, for appellant.

Claggett & Crosby and A. M. Hayes, for respondent.

McMILLAN, J

This is an action of trespass quare clausum fregit. The complaint charges that on the twenty-second of December, 1864, at the town of Nininger, county of Dakota, state of Minnesota, the defendant did break and enter the close of the plaintiff, to-wit: lots 5, 6, 7, 8, 9, 10, 11, and 12 in Nininger's addition to the town of Nininger, and then and there placed upon and within the boundaries of said close, large quantities of wood, and expelled the plaintiff therefrom, etc., and claiming damage in the sum of $35.

The defendant's answer denies each and every allegation in the complaint, [and alleges] that the lots described in the plaintiff's complaint constitute part of a public levee in the town of Nininger, as originally laid out and platted, and recorded in the office of the register of deeds; that said property was dedicated to the use of the public by the original proprietor; that it has always been used since said time as such levee, and has been improved by the corporate authorities of said city as levee property, and has been so used without objection, except by the plaintiff, on or about the twenty-second of December, 1864.

The reply denies that the property in question was ever platted and donated by the owner as a public levee.

The plaintiff, on the trial, introduced in evidence a deed from John A. W. Jones, the date of which is not mentioned, to him, conveying lots 8, 9, 10, 11, and 12 mentioned in the complaint, and testified that he entered into possession of the premises at the date of the [deed] and occupied the same up to December, 1864; that defendant entered upon the premises described in the complaint on that day, and piled wood thereon, all over the lots mentioned in the complaint, part of which, also occupied by the plaintiff, were leased by plaintiff; that plaintiff told defendant at the time that the premises were his. The defendant himself also testified that the plaintiff forbade him on that day to put the wood on the premises.

From the testimony of A. Reed, defendant's witness, it appears that the wood was put by the defendant on the premises described in the complaint, which are embraced in the government subdivision described as the W. ½ of the S. E, ¼ of section 18, township 115, range 17, and that the wood was piled on what was known as the Califf farm. The defendant also introduced a [patent] from the United States to Peter M. Califf, dated March 19, 1857, conveying, inter alia, the premises last mentioned, also a deed from Califf to Nininger, dated August 1, 1856, for same premises. There were several exceptions taken to the rulings admitting certain portions of the testimony of the witness Reed, but the objections, we think, were not well taken, and do not deem it necessary to consider them at length.

Several witnesses were then called by the defence, the substance of whose testimony was that from 1856 the premises in dispute were used by the public as a public levee, without objection from any one till plaintiff objected; that steam-boats landed and received and discharged freight, etc., at it daily, and that in winter it was used by the public for piling wood on; that in its natural condition it was a bluff; that in 1856, Nininger, with other citizens, was at work digging down the bluff, making a level space; that plaintiff was there. One witness states that when the town plat of Nininger was left for record, blocks 211, 212, and 213, in Nininger's addition to Nininger city, were then vacant, and shown to the witness by John Nininger as the steam-boat landing; that in 1858 the place was improved as a levee by the town in its corporate capacity. It also appeared that the premises had been taxed as private property.

At the close of the defendant's testimony the plaintiff offered in...