Delisha v. Minneapolis, St. P., R. & D. Elec. Traction Co.

• Decision Date: 06 May 1910
• Citation: 126 N.W. 276,110 Minn. 518
• Parties: DELISHA et ux. v. MINNEAPOLIS, ST. P., R. & D. ELECTRIC TRACTION CO.
• Court: Minnesota Supreme Court

110 Minn. 518

126 N.W. 276

DELISHA et ux.

v.MINNEAPOLIS, ST. P., R. & D. ELECTRIC TRACTION CO.

Supreme Court of Minnesota.

May 6, 1910.

Appeal from District Court, Dakota County; F. M. Crosby, Judge.

Action by Joseph Delisha and wife against the Minneapolis, St. Paul, Rochester & Dubuque Electric Traction Company. Verdict for plaintiffs, and defendant appeals from an order denying a new trial. Affirmed.

Syllabus by the Court

A perpetual easement for a railway right of way over land is an incumbrance thereon and an interest therein.

A contract by a married man to convey a right of way over land owned and occupied by himself and family as a homestead is void without the signature of his wife.

The husband in this case owned a quarter section of land, less 6 acres in the southeastern corner thereof. His dwelling house, which he and his wife occupied as a homestead, was located on the north half of the quarter. He executed a contract, which his wife did not sign, whereby he agreed that, upon the survey of defendant's line, he would convey to it an easement for a permanent railway right of way across the quarter, without designating any particular part thereof. The right of way was afterwards surveyed and built on part of the north half of the quarter. Held, upon a consideration of the evidence, that the trial court correctly instructed the jury that the north half of the quarter was the plaintiffs' homestead, and that the contract was void as to that part of the right of way located thereon. Boutelle & Chase and R. T. Boardman, for appellant.

Hodgson & Lowell, for respondents.

START, C. J.

The plaintiffs are, and were during the times herein stated, husband and wife, and brought this action in the district court of the county of Dakota to recover possession of a strip of land taken by the defendant for the purpose of constructing its line of railway over the N. W. 1/4 of section 4, township 113, range 20, owned by the plaintiff Joseph Delisha. The answer was to the effect that the land was taken by the defendant for its right of way by virtue of a written contract between it and the plaintiff Joseph Delisha, granting a right of way over his land. The contract was not executed by his wife. The reply alleged that the contract was made upon certain conditions, which had not been performed, and, further, that the land was the homestead of the plaintiffs. The jury found for the defendant upon the issue whether the contract was a conditional one. The trial court instructed the jury that, in case the contract was not conditional, then it was valid as to the south half of the quarter section and invalid as to the north half thereof, for the reason that it was the homestead of the plaintiffs, and that they were entitled to damages only for the taking of the north half of the quarter section by the defendant for its right of way. Verdict for the plaintiffs in the sum of $600. The defendant appealed from an order denying its motion for a new trial.

The trial court by its instruction to the jury necessarily determined as a question of law that the north half of the quarter section was the homestead of the plaintiffs at the time the contract was made and that it was void as to the homestead. The correctness of this instruction is the principal question raised by the assignments of error meriting consideration. The undisputed evidence established the facts following:

The plaintiffs' farm is a regular quarter section, less six acres in the southeast corner thereof, which is owned and occupied by a church. The plaintiffs' dwelling house and farm buildings were located on the north half of the quarter, near the northeast corner thereof, in which they were, and had been for some eight years, residing at the time, August 24, 1907, the contract with the defendant was made. They then had no other home or homestead. After the making of the contract, and in September, 1907, the plaintiffs took a lease for a term of three years of a farm adjoining their own, upon which there was a dwelling house with other farm buildings, which were located across the highway from their own. The lease required the plaintiffs to keep the buildings on the demised farm occupied, and they accordingly removed from their own house into the one leased, where they were living and carrying on both farms at the time of the trial of this action. They left some of their household furniture in their own house, and members of the family occasionally lodged therein. Their removal from their own house was for the purpose of complying with the terms of the lease, and with the intention of returning to their own house and home on the expiration thereof. They claimed the north half of the quarter as their homestead, but it does not appear that any notice of such claim was filed. The contract in no manner indicated upon what part of the quarter section the defendant's right of way was to be constructed. It simply provided for a right of way four rods wide over and across the quarter section, and that when the defendant should locate and survey the right of way the plaintiff Joseph Delisha should execute a proper conveyance of an easement of permanent right of way over the land. The right of way as...