Farrant v. First Div. St. Paul & Pacific R. Co.

• Decision Date: 01 January 1868
• Citation: 13 Minn. 286
• Parties: MARTIN FARRANT v. FIRST DIVISION OF THE ST. PAUL & PACIFIC R. CO.
• Court: Minnesota Supreme Court

Page 286

13 Minn. 286

MARTIN FARRANT

v. FIRST DIVISION OF THE ST. PAUL & PACIFIC R. CO.

Supreme Court of Minnesota.

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

The complaint did not directly allege the existence of "First street" as a highway, but in several places refers to it in this manner: "Said lots all front on First street in said city," "the grade of said First street," etc. The contents of the complaint in other respects are stated in the opinion.

H. R. Bigelow, for appellant.

Young & Webb, for respondent.

McMILLAN, J.

This is a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

It does not appear as distinctly as it should that "First street," mentioned in the complaint, is a public highway; but from the several allegations as to the existence of "First street," and the establishment of a grade thereon by the proper authorities of the town of Minneapolis, we are inclined to think it should be inferred that First street is a public thoroughfare or highway. If we are correct in this, we think there can be no doubt that the demurrer was properly overruled. It appears from the complaint that the plaintiff was the owner of three lots, each fronting 55 feet on First street, in Minneapolis, making an aggregate front of 165 feet; that he sold to the defendant a right of way for its road through these lots, to-wit, 25 feet on each side of the center of said railroad, making in all 50 feet wide from the north-easterly end of the lots, where said railroad enters them, and extending through to First street; that the frontage of said lots on First street, owned by and belonging to the plaintiff, is 115 feet, and extends the same width through the entire length of said lots. It is correctly urged by the appellant's counsel that the rear of the lots being the north-easterly end thereof, they must necessarily front the south-west, and the course of First street, on which they front, must be north-west and south-east. The track of the defendant's railroad, therefore must run along the north-westerly or south-easterly side of the plaintiff's lots, and cross First street at right angles, so that the front line of the plaintiff's property extends at right angles from the track of the road, 115 feet along First street.

The injury complained of is not for filling up the premises over which the defendant's right of way...