Sanborn v. Duyne

• Citation: 96 N.W. 41,90 Minn. 215
• Decision Date: 10 July 1903
• Docket Number: 13,496 - (152)
• Parties: JOHN B. SANBORN and Another v. FRANK VAN DUYNE
• Court: Supreme Court of Minnesota (US)

96 N.W. 41

90 Minn. 215

JOHN B. SANBORN and Another v. FRANK VAN DUYNE

Nos. 13,496 - (152)

Supreme Court of Minnesota

July 10, 1903

Action of ejectment and for equitable relief in the district court for Ramsey county. The case was tried before Bunn, J., who found in favor of defendant. From a judgment entered pursuant to the findings, plaintiffs appealed. Reversed, and new trial granted.

SYLLABUS

Deed -- Easement for Levee -- Void Lease.

Plaintiffs were in 1883 the owners in fee of certain lots near the west bank of the Mississippi river in St. Paul, and conveyed to said city, by a properly executed deed, a "perpetual easement for the purpose of a public levee over and upon" the same. The city never constructed a levee thereon, and the lots have never been used for levee purposes. Prior to this conveyance the city attempted to acquire the lots for levee purposes by condemnation proceedings, but the same were, when completed, deemed invalid, and were, in effect, abandoned, though plaintiffs demanded the damages assessed to them therein; but the city refused to pay the same except upon the execution of the deed aforesaid. In 1891 the city, acting under and pursuant to Sp Laws 1891, c. 34, leased the property to defendant for private purposes. Defendant took possession thereof, erected buildings thereon, and now occupies the same, carrying on a manufacturing business. Though plaintiffs knew of defendant's occupancy of the property, they made no claim thereto until shortly before the commencement of this action. Held:

1. That the city acquired an easement only by the deed from plaintiffs, the latter retaining the fee to the land together with such right of possession and beneficial use as would not be inconsistent with an exercise of the rights granted the city. The legal rights of the parties are in no way affected by the condemnation proceedings, but are fixed by the deed of conveyance.

2. That the lease of the property by the city to defendant, under Sp Laws 1891, c. 34, was void, and conferred no right of possession in defendant as against plaintiffs. The act of the legislature under which the lease was made is unconstitutional, as attempting to divert property acquired by the city for a public use to an inconsistent and private use.

3. That plaintiffs are not estopped from asserting their rights against defendant.

4. That defendant's possession of the property is, as against plaintiffs, wrongful and unlawful. The latter may maintain this action, and are entitled to such relief as the evidence may show them entitled to.

John B. & E. P. Sanborn, for appellants.

The city never acquired under this deed, and never had the exclusive right to the possession and use of this property as against the appellants, who are the owners of the fee. The city has simply an easement or right to use the lots for the purpose of a public levee. That is a privilege distinct from the ownership of the soil, and it is not a tenancy. The appellants, as owners of the fee, are entitled to every use, and the value of every use to which this property can be put so long as such does not interfere with the lawful use which the city makes of it under its easement. The owners of the fee in land which is subject to an easement for the purposes of a right of way, a street, highway, public square or public levee have the exclusive right in the soil for every purpose of use or profit which does not interfere with the easement, and may maintain actions for any encroachment upon that right. 2 Dillon, Mun. Corp. (4th Ed.) §§ 633, 656b, 663; Washburn, E. & S. (4th Ed.) § 9, p. 10, and page 252; Elliott, Roads & S. (2d Ed.) § 230; Dovaston v. Payne, 2 Smith, Lead. Cas. 160; Bailey v. Sweeney, 64 N.H. 296; Jordan v. Woodward, 40 Me. 317; Peck v. Smith, 1 Conn. 103; Gardiner v. Tisdale, 2 Wis. 115; Weisbrod v. Chicago, 21 Wis. 609.

The owner of the fee, which is subject to an easement for the purposes of a right of way, a street, highway, public square, landing or levee, is entitled to possession against one who has entered upon the same and erected a structure and become a permanent occupier or encumbrancer of the land to the exclusion of the owner of the fee, and is using the same for a purpose foreign to the purposes of the easement, and the owner may recover in ejectment against such person. Gardiner v. Tisdale, supra; Weisbrod v. Chicago, supra; Proprietors v. Nashua, 104 Mass. 1; Woodruff v. Neal, 28 Conn. 165; Morgan v. Moore, 3 Gray, 319; Roby v. New York, 65 Hun, 532; Coburn v. Ames, 52 Cal. 385; Strong v. City, 68 N.Y. 1; Pomeroy v. Mills, 3 Vt. 279; Lyon v. McDonald, 78 Tex. 71.

The owner of the fee in land, which is subject to an easement for the purposes of a right of way, a street, highway, public square, landing or levee, is entitled to an injunction against any one who is occupying or using the same for private purposes, or for any purpose foreign to the purposes of the easement, to restrain such use. Williams v. New York, 16 N.Y. 97; Appeal of Lance, 55 Pa. St. 16; O'Neal v. City, 77 Tex. 182; Glasgow v. City, 87 Mo. 678; Belcher v. St. Louis, 82 Mo. 121; Warren v. Mayor, 22 Iowa 357; Robert v. Sadler, 104 N.Y. 229; Bradley v. Pharr, 45 La. An. 426; Perry v. New Orleans, 55 Ala. 413; Bean v. Coleman, 44 N.H. 539.

In the case at bar the defendant is committing continuous and repeated trespasses upon the property in question. On that ground and to prevent a multiplicity of suits and constantly recurring actions for damages, the plaintiffs are entitled to maintain this suit and to an injunction. United States F.L. & E. Co. v. Gallegos, 89 F. 769, 773; 2 Beach, Inj. §§ 1129, 1146; Tallman v. Metropolitan, 121 N.Y. 119; Uline v. New York, 101 N.Y. 98; Galway v. Metropolitan, 128 N.Y. 132, 145; Evans v. Ross (Cal.) 8 P. 88.

A suit in equity is the only adequate remedy in such a case, and the injury is such as to authorize such suit. Barrett v. Mt. Greenwood, 159 Ill. 385; Attorney General v. Sheffield, 19 Eng. L. & Eq. 639, 648; Clowes v. Staffordshire, 8 Ch. App. 125.

It is immaterial how much or how little the plaintiffs have been injured or damaged, so far as their right to recover in this case is concerned. Bradley v. Pharr, supra; Robert v. Sadler, supra.

B. H. Schriber, for respondent.

The city of St. Paul acquired an absolute title in fee simple to the property in question by its condemnation proceedings. Sp. Laws, 1881, c. 120, § 1; Sp. Laws, 1874, c. 1, §§ 9-17. The voluntary acceptance of damages by the owners, in the absence of fraud or mistake in fact, operates as a waiver of whatever errors may have existed in the proceedings and estops the party from disputing their legality. 2 Dillon, Mun. Corp., §§ 592, 593, and cases cited; Mills, Em. Dom., 329; Felch v. Gilman, 22 Vt. 38, 41; Town v. Town of Blackberry, 29 Ill. 137; Rees v. City, 38 Ill. 322, 334; Kile v. Town, 80 Ill. 208, 211; Magrath v. Municipality, 13 Up. Can. Q.B. 629, 633; City v. Copeland, 106 N.Y. 496, 500; Brooklyn v. Armstrong, 45 N.Y. 234, 239; Hartshorn v. Potroff, 89 Ill. 509, 511, citing Morgan v. Ladd, 2 Gilm. 414; Bigelow, Est. § 652; Daniels v. Tiearney, 102 U.S. 415, 421; Boulder v. Lower, 22 Colo. 115; Pike v. Stallings, 71 Ga. 860; Barhans v. Union, 48 N.Y.S. 702; Denver v. Middaugh, 12 Colo. 434; Wm. Deering & Co. v. Peterson, 75 Minn. 118; Hunt v. Roosen, 87 Minn. 68.

The city of St. Paul acquired the fee title to the property in question by the deed delivered by plaintiffs, irrespective of the condemnation proceedings. Soukop v. Topka, 54 Minn. 66, 70; 3 Washburn, Real Prop. (6th Ed.) § 2289; Caldwell v. Fulton, 31 Pa. St. 475, 484; Vail v. Long Island, 106 N.Y. 283.

The act of 1891 (Sp. Laws 1891, c. 34) authorizing the common council to lease the property in question was a valid exercise of legislative authority and the respondent has a valid leasehold interest in the premises. Nicoll v. New York, 12 N.Y. 121, 130, 134; Rexford v. Knight, 1 Kern. 308-314; United States v. Case Library, 98 F. 512; Brooklyn v. Armstrong, supra; Kings v. Stevens, 101 N.Y. 411, 416; City v. Copeland, supra; Eldridge v. City, 120 N.Y. 309, 313; Fairchild v. City of St. Paul, 46 Minn. 540, 544. If the municipal corporation holds the full title to the ground for public uses without restriction, the legislature may direct and regulate purposes for which the public may use it. 2 Dillon, Mun. Corp., § 651; Van Ness v. Mayor, 4 Pet. 232; Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U.S. 672, 680; Crolley v. Minneapolis & St. L. Ry. Co., 30 Minn. 541, 543, and cases there cited. If the legislature of the city attempts to divert the premises from the use to which they were dedicated, the premises would not revert to the donor. City of St. Paul v. Chicago, M. & St. P. Ry. Co., 63 Minn. 330, 352; Parker v. City of St. Paul, 47 Minn. 317. If the dedicated property be appropriated to an unauthorized use, equity will cause the trust to be observed or the obstructions removed. 2 Dillon, Mun. Corp. (4th Ed.) § 653; Curran v. City, 83 Ky. 628; Goode v. City, 113 Mo. 257, 276; Coffin v. City of Portland, 27 F. 412; Barclay v. Howell's Lessee, 6 Pet. 498.

If the title of the city was limited to an easement for the purpose of a public levee, the easement not having been extinguished, the city is still entitled to the exclusive possession of the property, and the plaintiffs have no right to prosecute an action to recover possession of the premises for themselves. Montgomery v. Santa Ana, 104 Cal. 186, 197; Taylor v. Armstrong, 24 Ark. 102, 105.

Plaintiffs cannot recover in ejectment. It is not sufficient that the claimant in such action have a good title, but he must also be entitled to the possession of the lands which he seeks to recover. Atkins v. Horde, 1...