Harrington v. St. Paul & Sioux City R. Co.

• Decision Date: 01 January 1872
• Citation: 17 Minn. 188
• Court: Minnesota Supreme Court
• Parties: LYMAN C. HARRINGTON and others v. ST. PAUL & SIOUX CITY R. CO.

Page 188

17 Minn. 188

LYMAN C. HARRINGTON and others

v. ST. PAUL & SIOUX CITY R. CO.

Supreme Court of Minnesota.

Appeals by defendant from judgments of the district court, Blue Earth county.

There were four actions by different plaintiffs, owners of lots in the city of Mankato, fronting on public streets along which the defendant, without compensation to or consent of such owners, had constructed and was operating its railroad. The complaints asked judgment for recovery of possession, for damages, and for an injunction.

Brisbin & Palmer, for appellants.

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Davies & Dickinson and Jas. Brown, for respondent.

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RIPLEY, C. J.

These cases were argued together, but questions arise in some which do not in all. We will dispose of the former first.

In the case of Comstock, the complaint alleges ownership in the plaintiff of block No. 11, in Van Brunt's addition to Mankato, having a frontage of 292 feet on Van Brunt street, over which defendant's road is contructed, as to which the answer denies any knowledge or information sufficient to form a belief.

At the trial plaintiff proved that on the twenty-fifth of January, 1868, the then owner conveyed said block to her in fee. A witness called for plaintiff testified, on cross-examination, (the plaintiff objecting thereto as immaterial and irrelevant, but which objection was overruled by the court,) that "a portion of this property has been sold since the suit began; warranty deed; 150 feet front on railroad has been sold, running west from north-east corner."

The court finds, as matter of fact, that plaintiff, ever since the said twenty-fifth of January, has been the owner in fee-simple and in possession of said premises; that by reason of the acts of defendant complained of, she has sustained damage to the amount of $25; and, as conclusions of law, that she is entitled, besides such damages, as against defendant, to recover possession of the tract of land lying between her said block and the center line of said street, as occupied by defendant, and to a perpetual injunction as prayed in the complaint.

The defendant objects that "the testimony (meaning the plaintiff's testimony generally) applies indiscriminately to the whole property; and the finding of damages relates to the whole property. So of the recovery of the possession and the injunction. This we claim to be error affecting the action, for which a new trial should be awarded." As to the testimony, no objection was made to any of it at the trial, for the reason now alleged. Its reception, therefore, can be no ground for a new trial.

With respect to the other ground of objection, it is to be considered that, even if the plaintiff had sold the whole block since the commencement of the suit, the fact must be alleged by way of supplemental answer before evidence of it would be admissible. 1 Chit. Pl. 657; Gen. St. c. 66, § 108; 7 Johns. 194; 20 Johns. 414; 1 E. D. Smith, 273; Rundle v. Little, 6 Q. B. 174. Defendant could not, therefore, avail itself of any statements of this character elicited, on cross-examination, against plaintiff's objection.

With respect to the damages it is also to be observed that the right to recover damages for trespasses committed prior to a conveyance of the land would not pass by the deed, plaintiff might nevertheless recover a judgment therefor. Gen. St. c. 75, § 4. To lay the foundation, therefore, for an objection that the finding included subsequent damages, the date of the sale should, at all events, have been definitely fixed.

In the case of Stella M. Davies, on the other hand, her right to recover damages or other relief is objected to on the ground that it had accrued to her grantor before her purchase, and that, therefore, she bought cum onere.

The argument is, in brief, that the lands had been previously taken for public use, and the right to damages accrued and took effect then, to the then owner. This confounds a taking of private property for public use by proceedings according to law, with an unauthorized trespass.

If the theory on which plaintiff recovered be correct, as it is not pretended that defendant has ever taken any steps to condemn her land, it has been appropriated to defendant's uses, in the maintenance and operation of its railroad thereon, without any authority of law whatever, and defendant in so doing is a trespasser. The damages claimed and given in this action are not assessed as compensation for plaintiff's land taken for public use, but for such unauthorized acts.

Defendant's acts, moreover, are a continuing trespass. Plaintiff's grantor, no doubt, might maintain an action against defendant for damages sustained up to the conveyance to plaintiff; but plaintiff also has her remedy for those which she has sustained since. Whether defendant had such a possession prior to the deed to her, (plaintiff,) as that her grantor could have maintained ejectment, is nothing to her. If so, and he did not see fit to, she may, if the defendant continues its unlawful possession. So, if the defendant's acts are a nuisance, it is no answer to say they were a nuisance to her grantor also. She may have an injunction, though he did not see fit to obtain one. Gen. St. c. 75, § 25.

An insurance agent, called as a witness for plaintiff, was allowed to testify, the defendant objecting, that the location and operation of the railroad increased the hazard of fire to plaintiff's buildings.

The defendant cites, in support of the exception taken to the admission of the evidence, two Pennsylvania decisions, to the effect that such increased risk is not proper to be considered in estimating the compensation to be paid for land taken by a railroad company under its charter. Without discussing that question it is enough to repeat that this is no such proceeding; that if defendant's road was a nuisance as respects plaintiff, she was entitled to relief. Such an increased risk certainly interfered in the most direct way with the plaintiff's comfortable enjoyment of her property, and was therefore competent to prove the existence of such nuisance. Gen. St. c. 75, § 25.

Mrs. Elizabeth Copp's premises are a part of the town-site of Mankato, lots one (1) and three (3) in block fifty-nine (59) in Mankato, according to Brewer's plat thereof, and front on Fourth street. To her claim to the ownership of the fee to the center of said street in front of her said lots, subject only to the public easement therein for a highway, it is objected that by the act of congress under which said town-site was entered, and that of the legislature, she acquired under the deed to her from the trustee no title to any part of the street; that the title to the street remained in the trustee.

We see no reason why the trustee's deed to plaintiff did not pass to her the legal title to the fee of the land to the center of the street adjoining her lots, as in the ordinary case of conveyance of lands adjoining a highway.

The lands comprising the town-site of Mankato were entered by the judge in trust for the several occupants thereof, according to their respective interests; that is, all the lands comprised in said town were so held. If any occupant had theretofore dedicated any part thereof to public use as a street, the judge would hold the title to such land in trust for him, subject to such easement in the public.

The judge finds that plaintiff was one of such occupants, and also finds facts from which a dedication of the streets delineated on Brewer's plan to public use by the occupants of the town-site would be inferred. What occupant other than plaintiff could have dedicated the portion of said street to its center, adjoining the lots in question, is not conceivable on these findings.

The law (Comp. St. 385) made it the trustee's duty to convey the title to any lot to the person entitled thereto, according to his right or interest in the same as it existed at the time of entry, and the judge finds that the trustee duly conveyed the title in fee to said lots to plaintiff. Prior to said deed she must, therefore, have been, as one of the occupants of said town-site, the occupant of said lots.

The streets must have become such by dedication by those who, before such dedication, were the several occupants of the whole town-site, and who, after such dedication, remained in the exclusive occupation respectively of the several lots and parcels of land fronting on or adjoining said streets; as to which streets they had parted, as against the public, with any right of occupation inconsistent with the public easement.

If there was a dedication of this street, it must, then, have been a dedication by the occupants of the lots fronting thereon, each of so much, to its center, as adjoined their lots respectively, unless we suppose, without evidence and contrary to all probability, that the strip of land constituting the street was settled on and occupied in that shape prior to any division of the town-site into lots and blocks.

It follows, from what has been said, that plaintiff's title by occupancy gave her a right to a conveyance in fee of her lots, and of the street in front thereof, as aforesaid, subject to said easement. If she had bought the lots and the street in front thereof, subject to the public use, by contract which stipulated therefor in so many words, a conveyance of the lots would have executed the bargain, for it would have passed the fee in the street. The judge held the lots and street in trust for her. Why should not his deed of the lots be held to execute his trust as to this street also?

The objection that by the act of congress of March 3, 1857, granting the right of way over the public lands to the railroads then contemplated, and by the territorial act of May 22, 1857, disposing of the land grant, the defendant acquired a prior right to that of plaintiff, overlooks the...