Village of Benson v. St. Paul, Minneapolis & Manitoba Railway Co.
| Decision Date | 28 July 1898 |
| Docket Number | 11,147 - (214) |
| Citation | 76 N.W. 261,73 Minn. 481 |
| Parties | VILLAGE OF BENSON v. ST. PAUL, MINNEAPOLIS & MANITOBA RAILWAY COMPANY and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Swift county against defendant railway companies to enjoin the obstruction of an alleged public street. The cause was tried before Powers, J., without a jury, and judgment was ordered in plaintiff's favor. From an order denying their motion for a new trial defendants appealed. Reversed.
Street across Railway -- Finding not Sustained by Evidence.
Evidence considered, and held insufficient to sustain a finding of a dedication of the locus in quo as a public street.
M. D Grover and S. L. Campbell, for appellants.
To constitute a common-law dedication there must be an intent to dedicate the land for a public highway on the part of the owner, and an acceptance by the public. Wilder v. City of St. Paul, 12 Minn. 116 (192). See also People v. Jones, 6 Mich. 176; Baker v. Johnston, 21 Mich. 319; Talbott v. Grace, 30 Ind. 389; Irwin v. Dixion, 9 How. 10. On the question of acceptance, see Hamilton v. State, 106 Ind. 361; Amsbey v. Hinds, 46 Barb. 622; Town v. Templeton, 71 Ill. 68; Tallman v. People, 12 Mich. 401; Lee v. Lake, 14 Mich. 12; City v. Detroit, 23 Mich. 173, 208. The permissive use by the public concurrently with the use by the owner has been uniformly held insufficient to create an adverse right in the public by way of dedication by the owner. Irwin v. Dixion, supra; City v. Canavan, 42 Cal. 541; Tucker v. Conrad, 103 Ind. 349; Griffin's Appeal, 109 Pa. St. 150; Com. v. Philadelphia, 132 Pa. St. 288.
F. M. Thornton and T. F. Young, for respondent.
As to what constitutes a common-law dedication, see Wilder v. City of St. Paul, 12 Minn. 116 (192); Case v. Favier, 12 Minn. 48 (89); Village of Mankato v. Willard, 13 Minn. 1 (13); Morse v. Zeize, 34 Minn. 35; Klenk v. Town of Walnut Lake, 51 Minn. 381; Brunswick v. City, 88 Ga. 68; Village v. Jenison, 86 Mich. 567. As to acceptance by public of dedication, see Wilder v. City of St. Paul, supra; Kennedy v. Le Van, 23 Minn. 513; Brakken v. Minneapolis & St. L. Ry. Co., 29 Minn. 41; Morse v. Zeize, supra; State v. Eisele, 37 Minn. 256; Hall v. Kauffman, 106 Cal. 451. As to street crossings through railroad yards, see Commissioners v. Detroit, 93 Mich. 58; Battle v. Tiffany, 99 Mich. 471.
Part of the year 1870, the First Division Company of the St. Paul & Pacific Railway Company, the predecessor in interest of defendants, owned the land constituting the town site of the village of Benson, including the right of way across said land, 250 feet wide. It constructed its road through said land, built its depot and had its cars running on said road by July 1, 1870; and it platted the town in October, 1870. This plat was admitted in evidence, and shows that the railroad right of way divided the village into two parts, with some 28 blocks and parts of blocks on the north side of said right of way, and about 12 blocks and parts of blocks on the south side thereof. Various streets are designated on the plat, -- some running east and west, and some running north and south. Those running east and west extend the full length of the plat, while those running from north to south do not appear on the plat to extend across the railroad right of way, although if the lines were prolonged, the streets on each side of such right of way would connect, as the ends thereof are directly opposite each other.
On the north side of, and along and parallel with, this right of way, and extending nearly across the plat, is Atlantic avenue, 50 feet wide. The division between the railroad right of way and Atlantic avenue is designated by a line on the plat which crosses all of the streets running north and south; but there is no line crossing the streets on the north side of the avenue, the space being open to connect with the streets. The streets on the north side of the right of way, and running north and south, are designated by numbers, while those south of the right of way are not so designated, either by numbers or names, although located directly opposite, and in line with, the streets on the north side of the right of way. Upon the map, Twelfth street -- the one in controversy -- is cut off from the right of way by the south line of Atlantic avenue, which is drawn directly across Twelfth line is drawn directly across Twelfth street, showing that it stops at the right of way. In other words, the line of Twelfth street is not prolonged across the right of way.
The lines drawn upon a map mean something, and are put there for a purpose. Courts give effect to such lines, as well as to the language found upon a plat. Gilbert v. Emerson, 60 Minn. 62, 61 N.W. 820.
This plat was filed for record in the office of the register of deeds on October 7, 1870, in accordance with law, and hence its contents must be deemed a matter of public notoriety.
We understand that counsel for respondent concede that there were no streets in said village, marked "Dedicated," across said railroad right of way, and that plaintiff's right of action is predicated upon acts of the appellants, and which it is claimed were sufficient to constitute a dedication at common law.
We have not referred to the map so made by the railroad company for the purpose of showing that from its appearance there could be no presumption that it did not dedicate any of the streets therein marked, but for the purpose of showing that the legal effect of the lines drawn upon the plat clearly shows that it was the intent of the railroad company not to dedicate any part of its right of way as or for Twelfth street. It not only shows a want or failure of dedication in this respect, but its express meaning is, by the lines on its map, to assert formally and directly that it did not dedicate any streets across its railroad right of way; and by filing its map in the office of the register of deeds the public were warned accordingly.
With this intent so expressly stated, and with this warning to the public, have the railroad company and the village so acted that the essential requirements necessary to constitute a common-law dedication have been complied with? The action is one to compel the defendants to remove obstructions from the alleged street crossing, and to replace upon said crossing certain planking which defendants had removed. As the original plat expressly rebuts any presumption that the railroad company intended to dedicate a crossing over its right of way at Twelfth street, the burden of proving that it has by its acts dedicated for public use this crossing rests upon the village of Benson, the plaintiff herein.
One of the principal grounds relied upon by plaintiff to show a common-law dedication is that at the crossing in question the railroad company in July, 1870, put in a plank crossing. It...
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