Dawson v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 01 January 1870
• Citation: 15 Minn. 102
• Parties: WILLIAM DAWSON v. ST. PAUL FIRE & MARINE INS. CO.
• Court: Minnesota Supreme Court

15 Minn. 102

WILLIAM DAWSONv.

ST. PAUL FIRE & MARINE INS. CO.

Supreme Court of Minnesota.

Appeal by defendant from an order of the district court, Ramsey county, overruling a demurrer to the complaint.

Brisbin & Warner and H. J. Horn, for appellants.

G. L. Otis and I. V. D. Heard, for respondent.

BERRY, J.

This is an appeal from an order overruling a demurrer to the complaint. The complaint alleges that the defendants have entered into possession of a certain strip of land, situate in St. Paul, called St. Charles street; have excavated and are now engaged in excavating the soil thereof, and are erecting and threatening to continue to erect a stone building thereupon, which will occupy the northerly 100 feet of said strip, and prevent travel thereon. The prayer of the complaint is that the defendants may be adjudged to restore said strip of land to the condition in which it was before they intermeddled therewith, and that they may be enjoined from proceeding with the excavation and with the erection of the proposed building. This relief is asked upon two grounds: First, because, as is alleged in the complaint, St. Charles street is a public street and highway, which the plaintiff, as a citizen of St. Paul, and a property-holder therein, is entitled to use, pass over, and have kept open as a street. No damage special and peculiar to the plaintiff is alleged to have accrued from the acts of the defendants, nor to be likely to accrue from the future prosecution or the completion of the work complained of. Neither does it appear that the plaintiff is the owner of, or in the occupation of, any premises fronting upon and adjacent to said so-called St. Charles street, from which fact, according to some of the cases, special and peculiar damages (though nominal in amount) might be inferred. Haynes v. Thomas, 7 Ind. 38; Tate v. Ohio & Miss. R. Co. Id. 483; Carlin v. Paul, 11 Mo. 32; Bingham v. Doane, 9 Ohio, 165; Schurmeier v. St. P. & P. R. Co. 10 Minn. 105, (Gil. 59.)

Upon this state of facts the plaintiff does not show himself entitled to the relief prayed for, so far as his prayer is based upon the theory that St. Charles street is a public street or highway. Where no peculiar and special damage is sustained by a private person in consequence of the obstruction of a public highway, which obstruction is a public nuisance, the remedy is only by indictment, or perhaps by suit in the name of the state, or of some one authorized to act for and vindicate the rights of the public. Stetson v. Faxon, 19 Pick. 154; President, etc., Harvard College v. Stearns, 15 Gray, 6; Lansing v. Smith, 8 Cow. 146; Fort Plain Bridge Co. v. Smith, 30 N. Y. 62; Carpenter v. Mann, 17 Wis. 155; Washb. Easem. 569. Nor in such cases will an injunction be granted at the suit of a private person. Washb. Easem. 577; Brainard v. Conn. R. Co. 7 Cush. 506; Hartshorn v. South Reading, 3 Allen, 501.

The other ground upon which the relief prayed for in the complaint is asked, is that the plaintiff is entitled to a private way over the so-called St. Charles street. The facts upon which this claim of a private way is based, as set up in the complaint, are as follows: On the thirteenth day of January, 1849, Louis Roberts, being the owner of certain lots of land, conveyed a portion thereof to Henry Jackson. The description and situation of the portion so conveyed will appear from the following diagram, which will be sufficiently accurate for the purposes of this opinion. All the land exhibited on the diagram, and lying between Third and Bench streets, including the strip marked St. Charles street, was conveyed to Jackson, except the part marked "Hopkins' lot:"

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

On the nineteenth day of January, 1849, Jackson conveyed the part marked "Cavalier lot" to Charles Cavalier, and in the deed to Cavalier the part so conveyed is described as follows, viz.: "The following piece or parcel of land, etc., known and designated as follows, viz.: fronting on St. Charles street 50 feet, and bounded on the north by the line of Daniel Hopkins 100 feet; south by the line of Henry Jackson 100 feet; and west by the land of said Henry Jackson 50 feet, — the said lot being 50 feet in front and 100 feet in depth." On the twenty-second day of January, 1849, and on the twenty-first day of January, 1859, Jackson conveyed to Franklin Steele all the land mapped on the foregoing diagram and lying on the east and west sides of St. Charles street, except the two lots designated as the Hopkins lot and Cavalier lot. On the sixteenth day of August, 1851, Steele conveyed the tract marked on the diagram as the Mahoney lot to Jeremiah Mahoney, and on the thirteenth of June, 1860, Mahoney conveyed the same to the plaintiff. The deeds from Jackson to Cavalier, from Jackson to Steele, from Steele to Mahoney, and from Mahoney to the plaintiff, all refer to and mention St. Charles street, either as a boundary, or as a starting point from which distances are reckoned; and the premises conveyed by each of said deeds are conveyed with all the privileges and appurtenances to the same belonging.

The complaint also alleges that through sundry mesne conveyances the plaintiff has become and is the owner of a portion of the tract conveyed as aforesaid to Cavalier, and of a portion (other than the Mahoney lot) of the tract conveyed to Steele as aforesaid, with all the privileges and appurtenances to such portion belonging; but no particular description of either of such portions is given in the complaint, nor does it appear whether or not they front upon or adjoin St. Charles street.

The complaint further alleges that St. Charles street was on the eighteenth day of January, 1849, and prior thereto, and ever since has been and is a strip of land 35 feet in width and 330 feet in length, extending from Third street to Bench street then and ever since, and now two public streets in the city of St. Paul, in said county, and that said Henry Jackson was the owner of the fee in said strip from the time of the said conveyance to him by Louis Roberts, until the year 1856, and that the said strip of land was at the time of said conveyance, and prior and subsequent thereto, and at the time of the conveyance to Cavalier, hereafter referred to, used and styled by the public and said Jackson as a street, and that said Jackson, prior to said purchase by said Steele, and at said purchase, exhibited to said Steele a plat of said block 31, which said plat exhibited and showed said strip of land to be a street, and that said Steele, in making said purchase, relied upon the representation on said map that said strip of land was a street, and that this plaintiff, when he purchased the said parcel of land from said Mahoney, and the other parcels of land of which he claims to be the owner as aforesaid, "believed that said strip of land was a public street, and relied on such belief in paying to said Mahoney, and the parties from whom plaintiff purchased" the other parcels, "the purchase money therefor."

The plaintiff's claim of a private way is stated in these words, viz.: "The complaint further shows that under and by virtue of said conveyances the plaintiff became seized and entitled to a right of way over said...