City of St. Paul v. Chicago, Milwaukee & St. Paul Ry. Co.

• Decision Date: 16 February 1891
• Citation: 45 Minn. 387
• Parties: CITY OF ST. PAUL <I>vs.</I> CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 387

45 Minn. 387

CITY OF ST. PAULvs.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Supreme Court of Minnesota.

February 16, 1891.

Appeal by plaintiff from an order of the district court for Ramsey county, refusing a new trial after a trial before Wilkin and Brill, JJ., a jury being waived.

H. J. Horn and O. E. Holman, for appellant.

H. R. Bigelow, W. H. Norris, and Flandrau, Squires & Cutcheon, for respondent.

GILFILLAN, C. J.¹

In this action the plaintiff alleges that it is the owner of the land lying between a line running from the south corner of lot 6, along the southerly line of blocks 3 and 4 of Hopkins' addition to St. Paul, to the westerly line of Wacouta street, and the Mississippi river; and also that said land is a public levee, and that the defendant is unlawfully obstructing the levee by buildings erected and railroad tracks laid thereon, excluding the plaintiff and the public therefrom, which constitute a nuisance; and the complaint asks that the nuisance be abated, and the defendant ejected from the land. The answer admits possession by defendant of, and alleges that it owns, the land described in the complaint, except a strip 69 feet in width along the southerly line of said blocks, and that it and its predecessors have been in the continuous adverse possession thereof for more than 20 years, and formally pleads the statute of limitations. The litigated issues in the case are upon the adverse possession. Upon those issues it is immaterial whether the action is one to abate a nuisance, the only nuisance consisting in defendant's possession and use of the land, or one in ejectment; for, if defendant has acquired title by adverse possession, the action cannot be maintained in either view. The cause was tried without a jury, and judgment ordered for defendant, and from an order denying its motion for a new trial the plaintiff appeals.

The court did not state in its findings the specific acts or facts constituting color or claim of title or the possession of the real estate, but states the general conclusion of fact: "That the defendant, and those from and under whom defendant claims and derives title, have had and maintained actual, open, notorious, and exclusive possession of said land whereof defendant is now in possession as aforesaid, continuously and uninterruptedly, for more than twenty years last past, and from a time more than twenty years prior to the commencement of this action; and that such possession of said premises, by said defendant and those from and under whom defendant claims and derives title, has been throughout said period, and all thereof, adverse to any and all other person or persons whatever, and under claim and color of title." Error is assigned upon various parts of this general finding as not supported by the evidence, and also upon other findings of fact based on and necessarily following upon the facts above stated, and also upon others not material, if the facts above stated are sustained. We shall consider only the facts which the court might well find from the evidence, going to make up the general conclusion of fact above stated. The following is a summary of the essential facts, which the court might find from the evidence, and which we assume it did find, in order to arrive at its general conclusion:

In 1854, one Hopkins, being the owner of the land thus platted, executed and filed the plat of Hopkins' addition to St. Paul. This plat is two blocks in width, from east to west, one of the southern tier of blocks extending from Broadway to Rosabel street, the other from Rosabel street to Wacouta street. Opposite the latter, across Wacouta street, is block 29 of the town of St. Paul. The southerly tier of lots in each of these three blocks front southerly or towards the Mississippi river. Between the southerly two blocks in Hopkins' addition and the river the space on the plat is marked "Levee," and on the plat of St. Paul the space between said block 29 and the river is marked "Landing." There was at that time, and for some time after, a sort of island or bar, surrounded by water when the river was high, extending westerly from Broadway far enough to lap over upon a part of said block 29, and which covered the front of some of the south-fronting lots in said block 29, and the front of some, if not all, of the south-fronting lots in the two blocks in Hopkins' addition. In 1856 this island was surveyed by the United States surveyor. On the plat of the survey filed in the office of the surveyor general it was designated as "Island 11," in section 5, township 28 N., of range 22 W. Had the land thus surveyed been in law separate from the abutting shore land, so that the United States might have disposed of it after having sold such shore land, it would, under the congressional and territorial land-grant acts of 1857, have come, as land "in place," within the grant to the Minnesota & Pacific Railroad Company. It was apparently, upon the records of the land-office, a part of those grants, and in 1863 the commissioner of the general land-office certified it to the state as land passing under the congressional grant. In 1862 the rights and franchises, including the land grant, of the Minnesota & Pacific Railroad Company, became vested in the St. Paul & Pacific Railroad Company, and, so far as affects the issues of this action, they passed to the First Division of the St. Paul & Pacific Railroad Company, on its organization, in 1864. Through the foreclosure, in 1879, of the mortgages of the latter company, such rights and franchises, including the lands and railroad, passed to the St. Paul, Minneapolis & Manitoba Railway Company. In 1880 that company conveyed the land in controversy to the defendant, which since that time has used it for the purposes of its railroad. The land-grant acts we have referred to, and the records of the survey in the land-office, constitute color of title in the Minnesota & Pacific Railroad Company, and in its successors, as its rights in the land grant passed to each. This is the claim of title under which adverse possession is claimed, and it cannot be questioned that the entry upon "Island 11" was made under that claim.

The entry upon the land under this claim of title was in 1862. In that year the St. Paul & Pacific Railroad Company entered upon the island, and laid a track, upon trestle-work, nearly its entire length from east to west, constructed a freight house, and continued to use both in connection with, and as part of, its railroad. The ground was low, and there was a slough between the island and the main-land, and that company commenced filling with earth to make the land suitable for its use. The possession passed to the First Division of the St. Paul & Pacific Railroad Company in 1864, and that company continued to fill, and build and lay tracks, and to use the land. The evidence is not very definite as to the extent thus actually occupied, but we think it sufficient to justify a finding that, as early as the beginning of 1867, that company was practically in the actual possession, to the exclusion of any other possession, of the land here in controversy. And the actual possession of but a part of the land, being under color of record title to the whole, extended the possession for the purpose of adverse holding to all of it not in the actual possession of some other person. A paper or record color of title is, of course, not equivalent to actual possession. There must be open, notorious possession of such a character as to be notice to the owner that the land is possessed under a claim of title hostile to his title. When there is such possession, and the land consists of a single tract, paper color of title to the whole tract serves to define the limits of the adverse holding. If the owner of the entire tract is in actual possession of a part, his possession constructively extends to the whole, except so far as it is excluded by actual adverse possession in another. In that case the adverse holder's possession is limited to what he actually possesses, and is not extended by construction. And such would be the effect of another adverse holding, especially if under a senior paper color of title to the whole. No one had title to the whole island. Most, if not all, the lots in Hopkins' addition, and the lots in block 29, town of St. Paul, fronting the landing or levee, had been conveyed by the original owners to different persons. The title of each grantee extended, subject to the public right, across the landing or levee to the river, and the actual possession by any grantee of his lot, or any part of it, extended constructively to the part of the levee or landing in front, subject to such public right. Of the different grantees of such lots, Mr. Schurmeier, who owned two of such lots in block 29, was the only one who appears to have been in actual possession of any part of his lot. The part of the island fronting his lots is not here in controversy. His lots were at the westerly end of the island. The entry and actual possession by the St. Paul & Pacific Railroad Company and its successors was east of Schurmeier's line. Such possession extended to and was limited by that line.

To this apparent adverse possession for more than 20 years before the action commenced, divers objections are made by the plaintiff. These objections may be stated as follows: (1) The possession was not held for the 20 years under the same claim of title. (2) There was not exclusive possession for that period. (3) The claim of title under which the entry was made was abandoned before the end of the 20 years. (4) There was, at different times during that period, recognition of the right or title of the city.

The break in the claim of title is argued to have taken place upon the transfer by the St. Paul, Minneapolis & Manitoba Railway Company to the defendant. That transfer, so far as relates to the land in controversy, was by deed,...