Koerper v. St. Paul & Northern Pacific Ry. Co.

• Decision Date: 14 January 1890
• Citation: 42 Minn. 340
• Parties: CATHERINE KOERPER and others <I>vs.</I> ST. PAUL & NORTHERN PACIFIC RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 340

42 Minn. 340

CATHERINE KOERPER and othersvs.

ST. PAUL & NORTHERN PACIFIC RAILWAY COMPANY.

Supreme Court of Minnesota.

January 14, 1890.

Plaintiffs brought this action in the district court for Hennepin county, to recover possession of block 13 in Bottineau's second addition to St. Anthony on which they alleged the defendant had built its railway, and $3,000 for withholding it. The defendant, in its answer, admitted that it had built its railway in certain streets opposite lots 5 and 6 of the block, and alleged a grant from the city of Minneapolis of the right so to occupy the streets, and that it had acquired the right to build opposite lot 6 by condemnation proceedings against the person then appearing of record to be the owner of the lot. It further alleges that it had paid no compensation to the owners of lots 5 and 6, except as before stated, and that it "is ready and willing to pay such compensation on having the same assessed by the jury trying this action, provided the plaintiffs on the trial shall establish their right to recover said premises." At the trial before Hooker, J., the plaintiffs offered to prove that block 13 was worth without the railway $12,000, and with it but $8,000. The offer was rejected on the ground that the evidence of damage must be limited to lots 5 and 6, and the plaintiffs excepted. The jury assessed plaintiffs' compensation at $300 for the taking of lot 6, and $200 for lot 5. A new trial was refused, and the plaintiffs appealed.

Geo. C. Ripley, C. E. Brennan, S. A. Booth, and Jackson, Atwater & Hill, for appellants.

D. A. Secombe, for respondent.

MITCHELL, J.

We think this case is controlled by the principles announced in Wilcox v. St. Paul & Nor. Pac. Ry. Co., 35 Minn. 439, (29 N. W. Rep. 148,) and Peck v. Superior Short Line Ry. Co., 36 Minn. 343, (31 N. W. Rep. 217.) The property in question, block 13 in Bottineau's second addition to St. Anthony, was urban property which had been platted and divided into 10 lots. Presumably this division was with a view to its disposal and ultimate use in such subdivisions. If nothing more should be shown, each lot should be treated as a separate tract. Prima facie that character had been given to it by the proprietors; and, if any facts existed sufficient to rebut this presumption, the burden was on plaintiffs to prove them. No evidence was offered to show that the property possessed any special adaptability for use as one tract for any particular purpose, or...