City of Winona v. Huff

• Decision Date: 01 January 1865
• Citation: 11 Minn. 75
• Parties: THE CITY OF WINONA vs. HENRY D. HUFF.
• Court: Minnesota Supreme Court

11 Minn. 75

THE CITY OF WINONAvs.

HENRY D. HUFF.

Supreme Court of Minnesota.

Appeal from judgment of district court, Winona County.

Ejectment for block 104, City of Winona, claimed by plaintiff as a public square, under a dedication by a town plat made and recorded by defendant. The cause was tried by a referee, and the plaintiff had judgment.

Smith & Gilman, for appellant.

Norton & Mitchell, and Berry & Waterman, for respondent.

McMILLAN, J.

This is an action brought by the City of Winona to recover possession of certain premises claimed as a public square in said city. The title of the plaintiff to the premises is based upon an alleged dedication by the defendant under ch. 26, p. 369, Comp. Stat.

It appeared from the record existing in the office of the register of deeds at the time of the trial, that a plat or map embracing the premises in question was recorded, but not accompanied with a surveyor's certificate, or certificate of acknowledgment. To entitle the plat to be recorded, or constitute a statutory dedication, the acknowledgment required by the statute is necessary. Baker et al. v. The City of St. Paul, 8 Minn. [491].

The object of the plaintiff was to prove the existence, at a former time, of the record of the certificate and acknowledgment required by the statute, the loss of such record, and then to prove its contents by parol. This it was competent to do. After proof of the loss of a record, its contents may be proved like any other document, by any secondary evidence, when the case does not from its nature disclose the existence of other and better evidence. 1 Greenl. Ev. § 509, and authorities cited. In addition to the evidence going directly to prove the record of the certificates referred to, the plaintiff introduced evidence to show the actual survey and platting of Winona, and to identify such plat as the one recorded, and that the plat thus recorded was delivered to the defendant as preliminary to a notice to defendant to produce the original plat, for the purpose of laying the ground for the admission of parol testimony of the contents of the record. This was the proper course. Before the contents of the record could be proved, except by the record, its loss must be shown, and since the nature of the record in this instance indicated the existence of the original map, that was the next best evidence, and until the proper excuse was shown for its non-production, parol evidence was not admissible. 1 Greenl. Ev. § 509, above cited.

Various exceptions were taken in the course of the trial, which we proceed to notice. The plaintiff offered in evidence sections four and six of ch. 16, of the Laws of 1855, entitled "A bill legalizing the Town of Winona and for other purposes," to the admission of which the defendant objected that the same was immaterial. This act was approved March 1, 1855, and distinctly recognizes the fact of the record of the town plat of Winona as laid out by Henry D. Huff, and surveyed by H. J. Hilbert, and recorded in the office of the register of deeds for the County of Winona, January 1, 1855, and, we think, was admissible as evidence of the fact of the record of the plat, the presumption being, that the statutory requisitions to entitle the plat to record were complied with. 1 Greenl. Ev. § 491. The plaintiff, having identified the reception book of instruments for record in Winona County, offered in evidence the following entry: "Date of reception, January 1, 1855, 8 P. M. Grantor, Henry D. Huff. Grantee, blank. To whom delivered, H. D. Huff. Fees received, $135.10. Remarks, Recorded book A of town plats, page 16." This was objected to, on the ground that the reception book shows that there was no grantee named in the instrument filed for record, and the evidence is immaterial. We shall have occasion hereafter to refer to the first ground of objection. It will suffice for the present to say we think these objections were properly overruled. The record is one required by law to be kept by the officer in whose custody it was, and, if for no other purpose, was admissible as evidence of the possession of the plat by defendant. The plaintiff here gave notice to the defendant to produce the map, to which the defendant objected, on the ground that the notice to produce was not given in time, which was overruled by the referee, and defendant excepted. Mr. Mitchell, a witness recalled by the plaintiff, testified: "My recollection is that the map purported to be executed and acknowledged by H. D. Huff. As to the body of the plat, so far as I noticed, it seemed to conform to plat `A'" (the existing record which had been previously identified). This evidence was objected to by the defendant, in time, on the grounds: First, that the plaintiff has not laid sufficient foundation for the reception of said evidence of the contents of the plat. Second, that since the plaintiff has produced and put in evidence a plat of record, they are bound by such record.

The question of sufficiency of notice to a party to produce a written instrument in his possession, is one which depends upon the circumstances in each case, and is a preliminary matter addressed to the judgment of the court; and it would require a plain instance of injury to call for the interference of this court upon that ground. 1 Greenl. Ev. §§ 560, 561, and notes. But it is unnecessary for us to determine the objections, since the defendant, before the close of his case, without objection from the plaintiff, produced in evidence the original map, with a certificate of record as found by the referee. The evidence offered by the plaintiff, of conveyances by the defendant to various parties, describing the premises conveyed according to this plat, and distinctly referring to the record of the plat, was clearly competent to show a knowledge of the fact of the record of the plat by the defendant, and a recognition and ratification of its record, which in view of the testimony of one of the defendant's witnesses after the production of the plat, that he left it for record without the knowledge of the defendant, was quite material.

The various offers of the defendant to prove by parol the facts of the acknowledgment or non-acknowledgment of the plat and the contents of it, are controlled by a different principle. The object was to prove by parol the contents of a written instrument prima facie in the possession of the party offering the testimony. Before this is competent, the party must prove the loss or destruction of the instrument without his culpability, which was not attempted in this case. In any event the map was subsequently produced by the defendant, and he is not injured. The defendant offered to show that taxes had been assessed and paid by him to the county, down to and including the year 1858, upon the block in question; to which the plaintiff objected and the objection was sustained. If the plaintiff had relied upon a dedication in pais, then we see some force in the testimony, but since a statutory dedication was claimed by the plaintiff, if sustained, the land was not taxable for any purpose, and the testimony was immaterial. The evidence was offered, no doubt, in reference to a dedication in pais, if such should be claimed by the plaintiff, but neither the testimony nor the pleadings justified its admission on that ground.

This disposes, we believe, of the exceptions on the trial, and we come to the finding of the referee. As to the conclusions of fact by the referee, the rule is well settled that if there is testimony in the case upon which the finding may reasonably be sustained, the court will not interfere with it. In this case that rule is applicable, and we are of opinion that the findings of fact by the referee are sustained by the evidence within this rule, and in the further examination of the case we shall regard these findings as conclusive. We proceed to the consideration of the conclusions of law by the referee which embrace the important questions in the case. The first conclusion of law as found by the referee is, that from the acts and facts found by him as stated in his finding, the defendant legally dedicated to the public, said block 104, as and for a public square, under the name of Winona Square.

It appears from the findings of the referee, that on the face or on the body of the map or plat of the survey, block 104 (the disputed premises) was marked "Winona Square," and the certificate of the defendant attached thereto was as follows: "I hereby certify that the above plat of Winona was by me directed to be surveyed, marked out and platted, and dedicated, the streets, alleys, three squares, viz.: No. 33, marked Public Square, No. 103, marked Winona Square, No. 99, marked Wabashaw Square, also two levees, for public use and benefit forever."

It is by no means certain that under such circumstances, the plat must not in any event, prevail over the certificate, since the statute would seem to constitute the plat the operative instrument (Comp. Stat. 370, ch. 26, § 5), and the certificate in the nature of an authentication of the plat to entitle it to record, the essential parts of such certificate being, that the survey and plat were made by the authority of the signer of the certificate, and to attest the survey; the remaining portion of the certificate, being matter of identification or description of the plat merely, and, for all other purposes, being surplusage, might be disregarded. But if this is not the case, yet the rule is that if there be a...