Village of Newport v. Taylor
| Decision Date | 16 January 1948 |
| Docket Number | No. 34226.,34226. |
| Citation | 225 Minn. 299,30 N.W.2d 588 |
| Parties | VILLAGE OF NEWPORT v. TAYLOR et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Washington County; Alfred P. Stolberg, Judge.
Action by the Village of Newport against George E. Taylor and others to require defendants to remove obstructions from a street and to enjoin them from maintaining such obstructions. The trial court found in favor of plaintiff, and, from an order denying their motion for amended findings or a new trial, defendants appeal.
Order affirmed.
Edward A. Knapp, of St. Paul, for appellants.
Joseph M. Donahue, of St. Paul (Clifford W. Gardner, of St. Paul, of counsel), for respondent.
Appeal from an order denying defendants' motion for amended findings or a new trial.
The village of Newport brought this action for a decree ordering defendants to remove obstructions from a street in that village and enjoining them from maintaining such obstructions. Plaintiff's complaint alleged a conspiracy on the part of defendants, but when no cause of action in conspiracy had been proved when plaintiff rested its case the parties stipulated that the trial should continue for the purpose of having the court determine the rights of the respective parties in and to the street.
The street here involved is First street, which by virtue of the original plat of the village of Newport was duly laid out, platted, and dedicated in 1857 as a public street of a specified width of 60 feet. Although in existence for nearly 90 years, it has never been improved or officially opened to public travel. On the other hand, it has never been vacated. First street runs in a north-south direction, roughly parallel to the Mississippi River, and is the first village street east of that river.
Defendants are the owners of lots abutting on both sides of First street. None of them held title to any of this property prior to the enactment of L.1899, c. 65, prohibiting the occupant of a public way from acquiring title thereto by adverse possession. The earliest acquisition of title was by defendant Christine Verrier in 1903. Since acquiring title, each defendant has used First street as a part of his own property. Some have placed sheds and chicken coops thereon, while others have put in fences and gardens. Some have installed pumps, water systems, and cesspools in the street area. In 1942, defendants joined in a petition to the village council requesting the vacation of First street. The petition was denied, and defendants were ordered by the council to remove from the street any fences, sheds, or other obstructions belonging to them. The refusal by defendants to do so and their assertion of title to the street right of way resulted in this lawsuit.
Defendants' claim to title is based on three grounds: (1) That defendants' predecessors in title prior to 1899 had by adverse possession destroyed plaintiff's easement for street purposes; (2) that plaintiff has lost its easement by abandonment of the street; and (3) that by long nonuser, with acquiescence in the concurrent occupancy of the street by defendants, plaintiff is estopped to assert its easement.
The trial court found that defendants had failed to establish any of these defenses. There is no claim that the conclusions of law do not follow from the findings of fact. The only question is whether the findings and conclusions are sustained by the evidence.
L.1899, c. 65, prohibits the occupant of a public way which has been dedicated to public use from acquiring title thereto by adverse possession. See, 1 Dunnell, Dig. & Supp. § 111. Therefore, defendants were obliged to show that the claimed adverse possession ripened into full title before 1899. The only witness who had any knowledge from personal memory and observation of the condition of the street for a period of 15 years prior to 1899 was Mrs. Verrier, one of the defendants. She testified that the part of the street on which the lots owned by defendant George E. Taylor fronted was fenced and used as a pasture for over 15 years prior to 1899; that that part of the street on which the lots owned by defendant Ralph W. Richardson fronted had been partially obstructed by a warehouse located partly in the street, but the warehouse was not placed there until about 1886. Therefore, this occupancy was for a period of less than 15 years prior to 1899. Mrs. Verrier could not recall who occupied the lots now owned by defendant Matt N. Weber before 1899, but she did recall that cattle and horses were at times staked in the street. Who owned the livestock or under what claim they were kept there she did not know. In 1889, one Holden E. Siegert acquired title to the Weber lots, and thereafter he placed a chicken coop and certain plastering equipment in the street. Siegert's intrusion upon the street was for less than the required 15 years. The part of the street on which the lots owned by defendant Ramby C. Rasmussen fronted had been used as a pasture before 1889. At one time a railway construction crew erected a bunkhouse in the street, where it remained for about six months. On the lots owned by defendant Clinton E. Belden was the Stevens dwelling house, which from 1882 extended about three feet into the street until it was destroyed by fire at a time which may have been five or more years prior to 1900. The house was old in 1882, but there is no direct testimony as to how long it had stood on the same location. Mrs. Verrier's lots were bought in 1903 from the Diamond Jo Steamship Line. From 1883 until 1899, that company maintained a warehouse on the riverbank west of First street. From this warehouse to a ramp on the east side of First street extended a wooden footbridge, over which merchandise was carted to and from the warehouse. The bridge, which was from six to nine feet high, crossed First street and was supported by wooden pillars, some of which were in the street. The bridge appears to have been in place from 1883 until after 1899.
1-3. We cannot quarrel with the trial court's findings that there was insufficient evidence to support a claim that adverse possession had ripened into full title prior to 1899. We are governed by the well-recognized rule that adverse possession may be established only by clear and positive proof based on a strict construction of the evidence, without resort to any inference or presumption in favor of the disseizor, but with the indulgence of every presumption against him. The burden of proving the essential facts which create title by adverse possession rests upon the disseizor. St. Paul & D. R. Co. v. City of Duluth, 73 Minn. 270, 76 N.W. 35, 43 L.R. A. 433; Hoverson v. Hoverson, 216 Minn. 228, 12 N.W.2d 501; 1 Dunnell, Dig. & Supp. § 127, and cases cited. The evidentiary way of the disseizor is hard. Obviously, the evidence in the instant case does not furnish the clear and positive proof required. The possession of the disseizor must be shown to be hostile,1 open, actual continuous, and exclusive, and the absence of any one of these essential elements is fatal to the establishment of adverse possession. Romans v. Nadler, 217 Minn. 174, 14 N.W.2d 482; 1 Dunnell, Dig. & Supp. § 113. Mrs. Verrier's testimony, as well as that of the other witnesses, provides no positive evidence that the possession was either hostile or exclusive for the statutory period. We cannot, for example, say that the erection and maintenance of the wooden footbridge over the street was hostile and exclusive. It may be presumed that a bridge from six to nine feet high is not necessarily a barrier to travelers on the street. Because the Stevens house was old in 1882, we cannot draw an inference that it had stood on the same location for any appreciable time prior to that year. To support the claim of adverse possession under the testimony given would require the court to engage in speculation and in the drawing of inferences in favor of defendants. This we cannot do. It should further be noted that in order to establish the 15-year statutory period prior to the enactment of L.1899, c. 65, it was necessary to go back to March 18, 1884, at which time the principal witness, Mrs. Verrier, was only ten years old. The accuracy of her recollection of events occurring at this early age could best be determined by the trial judge, in whose presence she testified.
4. Regardless of the status of the evidence, defendants are in no position to establish that the possession of their predecessors in title was hostile. First street, as previously noted, has never been improved or officially opened to the public since its dedication in 1857. In Pierro v. City of Minneapolis, 139 Minn. 394, 395, 166 N.W. 766, we held:
"* * * It is settled law in this state that, when a street is dedicated by plat, the city may choose its own time to occupy, open, and use the street, and until it does so, possession of the street by the abutting owner is not regarded as hostile and the statute of limitations will not commence to run."
In the earlier case of St. Paul & D. R. Co. v. City of Duluth, 73 Minn. 270, 275, 76 N.W. 35, 43 L.R.A. 433, with respect to a platted but unopened street, the court said:
"* * * Hence persons in possession of such platted streets, or part of them, will, until the time arrives when such streets are required for actual public use, be presumed to hold subject to the permanent right of the public."
5-7. Here, we have no evidence of abandonment other than that of nonuser. Abandonment is a question of intention, and nonuser is only an evidentiary fact aiding in...
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