Village of Mankato v. Willard

• Decision Date: 01 January 1868
• Citation: 13 Minn. 1
• Parties: VILLAGE OF MANKATO v. J. A. WILLARD and others.
• Court: Minnesota Supreme Court

Page 1

13 Minn. 1

VILLAGE OF MANKATOv.

J. A. WILLARD and others.

Supreme Court of Minnesota.

Appeal by both parties from the judgment of the district court, Blue Earth county.

Franklin H. Waite, for plaintiff, cited:

Willard & Barney and James Gilfillan, for defendant, cited:

WILSON, C. J.

The premises involved in this litigation are situated in the village of Mankato, on the bank of the Minnesota river, and are claimed and used as a levee or public landing. The lands embraced in the site of the village were purchased in May, 1858, from the government of the United States, by the Hon. Charles E. Flandrau, then a judge of the supreme court of the territory of Minnesota, in trust, for the several use and benefit of the occupants thereof, under the act of congress entitled "An act for the relief of citizens of towns upon lands of the United States under certain circumstances," approved May 23, 1854.

It is, among other things, alleged in the complaint that the plaintiff was incorporated a village in March, 1865, and has been, since May, 1865, the owner in fee-simple, in trust for the public, for its use as a levee and public landing, of the locus in quo, which is, and has been since April, 1852, used as a public landing, and which has been dedicated to the public for the use aforesaid by the proprietors thereof; that in December, 1864, the Hon. Lewis Branson, successor of Hon. Charles E. Flandrau, as trustee, conveyed said premises to the defendants, who claimed under one Wardlaw, who claimed to be entitled thereto by reason of his occupancy under the town-site act aforesaid; that the deed to the defendants was recorded in the office of the register of deeds of Blue Earth county, in which is the village of Mankato, in February, 1866; that prior to the record of the deed plaintiff never heard of any adverse claim to the said piece of land; that plaintiff is informed and believes that defendants claim title thereto adverse to the title of the plaintiff and to the occupancy and use by the public; "that the deeds were executed in fraud of the rights of this plaintiff and of the public; that the defendants intend to use the said deeds for their own benefit, and to the prejudice of this plaintiff and of the public, who have a right to use the said river and levee and public landing; that each of said deeds is a cloud upon the title of the plaintiff to the said levee and public landing, and also upon the interest of the public to use the same and the part of the river adjacent thereto, and cannot be removed from the record of the office of the register of deeds aforesaid; and also that such deeds may subject this plaintiff to further litigation, while the facts will be no longer capable of complete proof. Wherefore, the plaintiff prays that the defendants be adjudged to produce the said deed and deliver the same up to be cancelled, and also for such other relief as the court may deem just."

The defendants, in their answer, deny that the plaintiff is owner in fee of the premises or entitled to any estate, interest, or easement therein, or that either the plaintiff or the public has or had any right to the use thereof or to an easement therein, or that either has used said premises or ever had possession thereof for a landing or levee, or that said landing or levee, so called, was ever dedicated to public use. And they claim title in themselves, under Wardlaw, in fee-simple, free from any easement or right of any kind in the public.

The defendants also allege that Wardlaw, under whom they claim, settled upon and occupied lot 1, in section 7, township 108, range 26, which includes the premises in question; that he was entitled, by virtue of his occupancy, to a deed of said lot from the trustee aforesaid; that he filed with the trustee a statement in writing, claiming such deed, within the time prescribed by law for that purpose; that no other person applied for a deed of the land in question; and that the trustee made a deed to the defendants, Wardlaw's assignees, in pursuance of said application.

The findings of fact of the judge below, who tried the case without a jury, are very full. There do not appear to have been any exceptions taken to the rulings of the court.

From the findings it appears that Wardlaw applied for lot 1; that the defendants succeeded to his claim or right thereto and that in pursuance of his application a deed was made to them of these premises; and that no other person applied for a deed of said lot, or any part thereof.

It is also found that the tract of land in question was dedicated to the public use as a landing, and that Wardlaw was never an occupant of the town site, or any part thereof, and therefore was not entitled to a deed from the trustee of any part of the land embraced therein, and "that none of the parties to said instruments or conveyances — the defendants and those under whom they claim — has ever made any claim or did any act hostile to the public use of the lands in question, except it be the making, delivering, and recording of said instruments and conveyances, (from the defendants' grantors and trustee to the defendants,) and the claim set up by the defendants in their answer to this suit."

The court below decided that the plaintiff has not such title or interest in the premises as is necessary to sustain an action to remove a cloud from the title, but that the action is rather one "to declare, establish, and maintain a public easement, without regard to the settlement of any controversy as to the legal title." The court also held that the defendants, claiming under Wardlaw, stand in no better condition than he, and are not, and never were, entitled to a conveyance of the said premises, or any part thereof, from the trustee, and ordered "that the defendants, their agents and attorneys, and all persons claiming any interest in or right to said premises, through them, or either of them, do forever refrain from obstructing, or in anywise interfering, with the free and unrestrained use by the public of the premises in question as a public levee or landing." Judgment was entered in accordance with this order, from which both parties appealed; the defendants, on the ground that the plaintiff is not entitled to the relief granted, or any relief in the premises; the plaintiff, on the ground that the court refused to order the deed and the record thereof to be cancelled.

The defendants argue that (1) there cannot be a common-law dedication of lands for a public landing or levee; (2) the claimants, before their right to a deed from the trustee was established under the statute, could not dedicate the land, or any part thereof, to public use; (3) a deed from the trustee to the defendants, no other claimant having filed a statement or claim to the land, is conclusive as to the title, and all rights or claims thereto; (4) admitting that there was a common-law dedication of the premises in question, the plaintiff cannot maintain this action.

The decision of these questions must depend very much on the view which we take of the nature and effect of a common-law dedication. It does not appear that there was in this case a statutory dedication, and we will not, therefore, discuss its force or effect.

It was held in Schurmeier v. St. Paul & Pac. R. Co. 10 Minn. 83, (Gil. 59,) that a statutory dedication did not pass the fee; but the correctness of this view being doubted, a reargument of the question was ordered in a case now pending in this court.

In Wilder v. St. Paul, 12 Minn. 201, (Gil. 176,) we held that a common-law dedication does not operate as a grant, but as an estoppel in pais of the owner of the servient estate from asserting a right of possession inconsistent with the uses and purposes for which the dedication was made. This proposition is taken substantially, if not literally, from the authorities cited in the opinion, but as it is important, and perhaps decisive in this case, we refer more particularly to the authorities supporting it and the principle on which it is based.

The supreme court of the United States says, (in City of Cincinnnti v. White's Lessees, 6 Pet. 438, in which the question of the dedication of a public park is discussed:) "And after being thus set apart for public use and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication. It is a violation of good faith to the public, and to those who have acquired private property with a view to the enjoyment of the use thus publicly granted.

The case of Jarvis v. Dean, 3 Bing. 447, shows that rights of this description do not rest upon the length of possession. "* * * The point, therefore, upon which the establishment of the public street rested was whether it had been used by the public as such, with the assent of the owner of the soil, not whether such use had been for a length of time which would give the right by force of the possession; nor whether a grant might be presumed, but whether it had been used with the assent of the owner of the land; necessarily implying that the mere naked fee of the land remained in the owner of the soil, but that it became a public street by his permission to have it used as such."

In Hunter v. Trustees of Sandy Hill, 6 Hill, 411, the supreme court of New York says: "Dedication, as the term is used in reference to this subject, is the act of devoting or giving property for some proper object, and in such manner as to conclude the owner. The law which governs such cases is anomalous. Under it, rights are parted with and acquired in modes and by means unusual and peculiar. Ordinarily, some conveyance or written instrument is required to transmit a right to real property, but the law applicable to dedications is different. A dedication may be made without writing; by act in pais, as well as by deed. It is not at...