Downer v. St. Paul & Chicago Ry. Co.

• Citation: 23 Minn. 271
• Parties: JOHN B. DOWNER, Assignee, <I>vs.</I> ST. PAUL & CHICAGO RAILWAY COMPANY.
• Decision Date: 09 January 1877
• Court: Supreme Court of Minnesota (US)

23 Minn. 271

JOHN B. DOWNER, Assignee,vs.

ST. PAUL & CHICAGO RAILWAY COMPANY.

Supreme Court of Minnesota.

January 9, 1877.

This was a proceeding instituted by defendant to condemn, for the use of its railway, certain land which is described in the petition, and in the award of the commissioners, as follows: "Certain lands in the village of Read's, bounded westward by Richards street, northward by the Mississippi river, eastward by Read's addition to Pepin, and southward by a line parallel with and sixty feet northward of the northern line of block twenty-eight (28) in the recorded plat of the town of Pepin." For his damages for

the taking of the property by the defendant the commissioners awarded to the plaintiff the sum of one dollar, from which award he appealed to the district court. Upon a former trial of the case, in the district court, the defendant relied on a statutory dedication of the premises to public use, evidenced by the recorded plat of the town of Pepin. The plat was admitted in evidence, against plaintiff's objection, to prove such dedication, and the defendant had a verdict; but, on appeal to this court, a new trial was granted, it being held that the plat did not sufficiently comply with the statute to effect a statutory dedication. Downer v. St. Paul & Chicago Ry. Co., 22 Minn. 251.

At the second trial, which was had in the district court for Wabasha county, before Mitchell, J., the defendant relied on and sought to prove a common-law dedication of the land in question by one Richards, of whom the plaintiff is the assignee in bankruptcy, prior to the commencement of defendant's proceedings for condemnation.

The original map or plat of the town of Pepin was introduced in evidence by both parties, as correctly describing the premises, which are there represented as in the diagram on page 273, except that the dotted lines, indicating the west and south lines of the property, do not appear upon the plat. It was shown by parol that there was a public street, sixty feet in width, in front of block 28, and between that block and the property in dispute.

The defendant having introduced evidence tending to prove a dedication of the premises, by Richards and the other original proprietors, for a public levee, to rebut this evidence the plaintiff, among other things, called S. A. Kemp, one of the original proprietors of the town and signers of the plat, who testified, under objection and exception, that it was the original intention to leave these premises as public property, but that the witness objected, and wanted it left as private property, and the other proprietors acceded to his wishes.

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

The defendant's counsel requested the following instruction, which was refused, and exception taken:

"The map introduced in evidence covers the property in dispute, and shows that the same was, by the proprietors of the town of Pepin, intended to be donated to the public use, as a public street and levee, at the time it was made and executed, and is prima facie evidence of intent to dedicate it to the public use."

The jury found a verdict for plaintiff for $1,946; a new trial was refused, and defendant appealed.

Seagrave Smith, for appellant.

Wilson & Taylor, for respondent.

GILFILLAN, C. J.

It was held in this action, in the opinion filed in ...