Rich v. City of Minneapolis

• Decision Date: 08 November 1887
• Citation: 35 N.W. 2,37 Minn. 423
• Parties: Samuel M. Rich v. City of Minneapolis
• Court: Minnesota Supreme Court

35 N.W. 2

37 Minn. 423

Samuel M. Rich v. City of Minneapolis

Supreme Court of Minnesota

November 8, 1887

Plaintiff brought this action in the district court for Hennepin county, to recover the value of stone removed from a street in the city of Minneapolis, the plaintiff being the owner of the land abutting upon that portion of the street from which the stone was taken, and the stone having been taken by contractors engaged in grading the street under a contract with the city. The action was tried with a jury before Young, J., and when plaintiff rested his case a dismissal was ordered. Plaintiff appeals from an order refusing a new trial.

Order reversed.

Merrick & Merrick, for appellant.

Seagrave Smith, for respondent.

OPINION

Mitchell, J.

It clearly appeared from the evidence introduced by plaintiff that the city of Minneapolis had no right to take these stones. It was not necessary to remove them for the purpose of grading or improving the street, as they were below the grade line. The public acquires in a street only a right of way, with the powers and privileges incident thereto. Subject to this right, the soil and mineral in a street belong to the owner of the fee, the same as if no street had been laid out. When the surface of the land is above grade line, so that in order to grade and improve the street it is necessary to remove superincumbent materials, this may be done, and probably such material may be used, if necessary, in improving other parts of the street; but the public easement justifies only the taking of material which the process of the construction or repair of the street requires. Althen v Kelly, 32 Minn. 280, (20 N.W. 188;) Robert v. Sadler, 104 N.Y. 229, (10 N.E. 428.)

The evidence also shows, or tends to show, that the city, acting within its general powers, made a contract with certain parties to grade the street, in which, among other things, it was provided that, in consideration of their grading the street, the contractors were to receive and be permitted to quarry, take away, sell, or use as their own, all the rock in this part of the street, and that, in pursuance of and under this contract, they took out and disposed of the stone in question. Under these facts the contractors were the agents of the city in the premises, and the city responsible for their acts. Sewall v. City of St. Paul, 20 Minn. 459, (511.)

If the plaintiff owned the land abutting on the street, he presumably owned the fee in the street, such being the established presumption of the common law. 3 Kent, Comm. 432; Thomp. Highw. 26, 27. Therefore, inasmuch as the evidence showed that the plaintiff owned the lots on both sides of the street, subject to certain reservations by his grantors, he presumably owned the stone in the street, unless covered by these reservations. This action being purely one for the value of the stone removed, and the evidence introduced being directed solely to that question, of course plaintiff could not recover unless he owned the stone. He acquired title to the lots on one side of the street from one Rogers. It appears that these lots were subject to a prior lease from Rogers to one Aronson, who...