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

• Decision Date: 23 November 1888
• Parties: MICHAEL PIERRO <I>vs.</I> ST. PAUL & NORTHERN PACIFIC RAILWAY COMPANY.
• Court: Minnesota Supreme Court

Page 451

39 Minn. 451

MICHAEL PIERRO vs. ST. PAUL & NORTHERN PACIFIC RAILWAY COMPANY.

Supreme Court of Minnesota.

November 23, 1888.

Appeal by plaintiff from an order of the district court for Hennepin county, Hicks, J., presiding, refusing a new trial after verdict for defendant.

Jordan, Penney & Hammond, for appellant.

D. A. Secombe, for respondent.

DICKINSON, J.

The decision upon a former appeal in this action is reported in 37 Minn. 314, (34 N. W. Rep. 38.) After a new trial and a verdict for the defendant, the plaintiff has appealed from an order refusing another new trial. The cause of action here asserted is trespass upon an injury to a strip of land 62 feet in width, consisting of the westerly 22 feet of several lots in Bottineau's second addition to Minneapolis, with the adjacent 40 feet, comprising that half of Main street upon which such lots abut. The street had not been opened to public travel, as is alleged, and the plaintiff had inclosed and was using it for private purposes. Upon the trial there was offered and received in evidence the record of a judgment of the circuit court of the United States in an action by this plaintiff against this defendant corporation, awarding to the plaintiff a recovery of $20 damages, with costs. That action had been commenced in the district court of the state, but was removed to the federal court. The cause of action appearing in the copy of the complaint in the circuit court was the entry of the defendant upon, and its wrongful possession of, the westerly 22 feet of the plaintiff's lots, numbered and described as in the complaint in this action, except that they are there designated as being in "Bottinen's addition to Minneapolis." A recovery of possession was sought, together with the value of the use and occupation. In connection with the record from the circuit court, the defendant, in the trial of the present action, offered in evidence the complaint in that cause in the district court, in which the land was described as being in "Bottineau's addition." This evidence was properly received. The proof last referred to was sufficient to show prima facie the identity of the lots designated in the complaints in the two actions, and that the word "Bottinen" instead of "Bottineau," in the copy of the complaint sent to the circuit court, was the result of clerical error.

In deciding the former appeal in this action (37 Minn. 314; 34 N. W. Rep. 38) it was held by the majority of the court that a recovery for the use and occupation, in an action for that purpose and for the recovery of possession of the land, was a bar to a subsequent action for injury to the estate caused during the same period of occupation. Therefore there could be no recovery in this action for the alleged damage with respect to the 22 feet which was the subject of the former...