Parker v. City of St. Paul

• Decision Date: 10 November 1891
• Citation: 47 Minn. 317,50 N.W. 247
• Parties: PARKER v CITY OF ST. PAUL.
• Court: Minnesota Supreme Court

47 Minn. 317

50 N.W. 247

PARKERvCITY OF ST. PAUL.

Supreme Court of Minnesota.

Nov. 10, 1891.

(Syllabus by the Court.)

1. Where a city has acquired, by purchase or dedication, an easement in land for the purposes of a public street or levee, mere non-user for any length of time will not operate as an abandonment; at least until the time arrives when the street or levee is required for actual public use, and when the municipal authorities may be properly called upon to open or prepare it for such use.

2. Neither will a misuser by the municipal authorities constitute an abandonment.

Appeal from district court, Ramsey county; H. R. BRILL, Judge.

Action of ejectment by Theodore E. Parker against the city of Saint Paul. Judgment for defendant. Plantiff appeals. Affirmed.

P. M. Qvist, for appellant.

D. W. Lawler and Hermon W. Phillips, for respondent.

MITCHELL, J.

The condemnation proceedings instituted by the defendant under the provisions of chapter 120, Sp. Laws 1881, cut no figure in this case, and it is wholly immaterial whether they were valid or void, as the city rests its right to the possession of the premises in controversy exclusively upon the deed from plaintiff set out in the answer, the execution of which is admitted in the reply. Neither is it necessary to consider whether that deed conveyed the title in fee, or, as claimed by plaintiff, only an easement for the purposes of a street or levee; for, conceding the city's right to be only the latter, it would constitute a complete defense to plaintiff's action, (which is the ordinary action of ejectment,) unless that right has been extinguished. The only claim to that effect in the reply is that this easement has been lost by abandonment, and the only facts alleged as constituting such abandonment are two,-one of non-user, and the other of misuser; the first, being the bare fact that no street or levee has ever been constructed, opened, or used over and across the premises; and the second, that in 1889 the city fenced the premises with a substantial and permanent fence, and erected thereon two dwelling-houses, which it still maintains, which was done for a purpose entirely foreign to the purposes for which the deed was given. It is not necessary here to determine whether the public rights in land dedicated or purchased for street or other similar purposes can ever, under any circumstances, be lost by mere non-user. It may be said, however, that there is a valid reason for a distinctionin this regard between public and private rights. The rights of the public are seldom guarded with the degree of care with which owners of private property guard their rights, and, consqeuently, acts or omissions...