Hurley v. City of West St. Paul
| Decision Date | 07 June 1901 |
| Docket Number | 12,582 - (137) |
| Citation | 86 N.W. 427,83 Minn. 401 |
| Parties | MARY HURLEY and Others v. CITY OF WEST ST. PAUL and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Dakota county by John Hurley plaintiff, to determine the adverse claims of defendant city of West St. Paul to the certain real estate in possession of plaintiff, and to restrain defendants from entering upon and grading the same as a public street. The case was tried before Crosby, J., who found in favor of plaintiff. Thereafter Mary Hurley, and others, were substituted as plaintiffs in place of John Hurley, deceased. Subsequently on motion of plaintiffs, the court made an order amending the findings of fact. From this order and from an order denying a motion to vacate the amended findings and for a new trial defendant city appealed. Both orders affirmed.
Amendment of Findings.
A trial court has authority and power to amend its findings of fact and conclusions of law at any time prior to the removal of the cause from its jurisdiction by appeal.
Records of Public Officer -- Highway.
Records of public officers are the best evidence of their contents and existence, and secondary evidence thereof is admissible only upon proper showing that the originals are lost, and cannot be produced; and this rule applies as well to ancient official proceedings and documents as to those of recent date. Evidence examined and held sufficient to support a finding by the trial court that the highway in question in the action was not laid out by the public authorities.
Common-Law Dedication.
Common-law dedications are divided into two classes, -- express and implied. In each it is necessary and essential that there be a surrender or an appropriation of the land by the owner to the public use. A showing of an intent to dedicate is indispensable. Such intent is evidenced by some explicit or positive declaration or manifestation of a purpose by the owner to surrender the land, or by some act or course of conduct on his part from which legal inference of such purpose may be drawn. Evidence in this case examined, and considered, and held sufficient to support and sustain the findings of the trial court that the locus in quo was not, by plaintiff, or his predecessor in title, dedicated to the public use, within the rules of law above stated.
J. P. Kyle, for appellant.
Hermon W. Phillips and William Pitt Murray, for respondents.
This is an action to determine the right of the public in and to a strip of land adjoining on the east what is known as "Oakland Avenue" in defendant city. The cause was tried in the court below without a jury. Plaintiffs recovered, and defendant appeals.
Some time after the trial of the action, and after findings had been made and filed directing judgment for plaintiffs, defendant moved the court below upon a settled case for a new trial of the action, and plaintiffs made a counter motion for certain amendments to the findings of fact. Both motions came on for hearing at the same time. The court denied the motion for a new trial, but granted plaintiffs' motion for amended findings. Defendant complains of this action on the part of the court as erroneous, and wholly without authority. We only mention the point because of the apparent earnestness of the counsel in presenting it. It has, however, no merit. There is no question at all as to the authority of a trial court to correct and amend its findings of fact and conclusions of law at any time prior to the removal of the cause from its jurisdiction by appeal. Jones v. Wilder, 28 Minn. 238, 9 N.W. 707; State Sash & D. Mnfg. Co. v. Adams, 47 Minn. 399, 50 N.W. 360.
The merits of the case present several questions, but only two of the more important ones require special consideration. As the result of our deliberations with reference to them finally ends the litigation, it becomes unnecessary to go further into the record in this opinion. The controversy between the parties is whether a public highway exists upon and over the land in question. Unless there be a highway at that place, plaintiff is entitled to recover, for there is no question as to his ownership of the land. It is claimed on the part of defendant: (1) That in the year 1855, by proceedings duly had for that purpose, the highway in question was duly laid out by the proper authorities of Dakota county; that, as so laid out, the same included the strip of land in controversy; and (2) that, if it be found that the highway was not duly and legally laid out, the same was dedicated to the public by plaintiff and his predecessor, and that the public acquired an easement therein to the width of sixty-six feet by such dedication. Plaintiff controverts the claim that the highway was duly laid out by the public authorities, and claims that there is no sufficient evidence to prove that fact. He also denies the dedication of the strip of land to the public, or that the public acquired an easement therein by user or otherwise. There is no question between the parties but that a highway exists, and has existed for many years, at the location and vicinity of this avenue. The serious contention between them is as to the east boundary of the same. Plaintiff concedes the existence of a highway, but denies that the east line thereof extends beyond the line of a fence erected by him years ago. So the real question in the case is whether, upon any ground, or for any reason, the east line of Oakland avenue extends beyond the line of plaintiff's fence, so as to take in and include the locus in quo.
With this statement of the case, we come directly to the defendant's first contention, namely, that a highway was duly laid out and established to the width of sixty-six feet by the authorities of Dakota county in or about the year 1855. If laid out or dedicated to that width, it would include this land. It is claimed by defendant in this connection that in the year 1854 a petition was duly presented to the board of county commissioners of Dakota county, in which county the land in question was located, praying that body to lay out and establish a highway over the route of the present Oakland avenue, and that pursuant to this petition viewers were appointed, and a surveyor ordered and directed to make a survey of the proposed road. Some witnesses, who were residents of the locality at that time, gave oral testimony of the survey, and of the fact that the timber and brush in the center of the proposed road were cut out; but there is no evidence, oral or otherwise, of any action taken by the board of county commissioners. The only record having any tendency to show the laying out of the road at that time is a copy of the surveyor's report found among the files in the office of the county auditor. The road was laid out and established, if at all, under and pursuant to the provisions of R.S. 1851, c. 13. Under this statute the board of county commissioners had exclusive power to establish public roads, and the report of a surveyor in proceedings for that purpose was required to be filed with the register of deeds. That officer was at the time ex officio clerk of the board, and required to keep a record of their proceedings. It must be presumed that he performed that duty, nothing appearing to the contrary, and that the records so kept are still in existence. There is no evidence that the records have been lost or destroyed, and, so far as we are informed, no effort was made to ascertain whether or not they are still preserved, and within reach.
The existence and purport of records may be supplied by parol proof when the best evidence thereof is not obtainable. The records themselves, being the best evidence, must be produced, and the rule permitting secondary evidence of their existence and contents applies only where it affirmatively appears that the originals are lost or destroyed. Such was, in effect, the holding of the court in the case of Town v. Rovelstad, 105 Wis. 410, 81 N.W. 819. It is there said, in referring to the report of a surveyor of the location of a highway in a case similar to this, that:
"From such an official act, which is required and authorized only after certain preliminary steps, results a presumption that such steps were in fact taken, where, as here, the lapse of many years has made proof of the facts by ordinary evidence impossible."
This is in line with the authorities generally. City of Winona v Huff, 11 Minn. 75 (119); Board of Education v. Moore, 17 Minn. 391 (412); Groff v. Ramsey, 19 Minn. 24 (44); Pittsfield v. Barnstead, 38 N.H. 115; 1 Jones, Ev. §§ 198, 199, 211. The rule applies to all documentary evidence, whether written instruments or records...
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