Wait v. May

• Decision Date: 23 February 1892
• Parties: HARRIET F. WAIT <I>vs.</I> CHARLES MAY <I>et al.</I>
• Court: Minnesota Supreme Court

48 Minn. 453

HARRIET F. WAIT vs. CHARLES MAY et al.

Supreme Court of Minnesota.

Argued October 26, 1891.

Decided February 23, 1892.

Appeal by defendant the St. Paul, Minneapolis & Manitoba Railway Company from an order of the district court of Hennepin county, Lochren, J., made April 19, 1891, refusing a new trial.

This action was commenced in August, 1888, against Charles May, Frank Bardwell, and the above-named railway company to recover the possession of the shore, and the pier built out therefrom into Lake Minnetonka, in front of lot five, in Excelsior, Minn., and to recover damages for withholding the possession, and to enjoin the railway company from operating its road over the property. The village of Excelsior was incorporated by Sp. Laws 1877, ch. 4. The village council, by ordinance, on October 4, 1880, authorized the Minneapolis & Lake Park Railway Company, its successors and assigns, to construct its tracks, wharves, and depot on the lake shore across the street in front of this lot. The defendant the Manitoba Company succeeded to these rights. The other defendants are its tenants. May kept a restaurant on the property. The issues were tried November 28, 1890. The trial court found that plaintiff was the owner and entitled to the possession of lot five, subject to the public easement of a street and levee, saying: "Ordinarily the owner of a lot in a platted town is the owner of the fee of the adjacent street to its center, subject to the public easement, not as appurtenant to, but as parcel of, his lot, but when Judge Sherburne conveyed to Galpin lot five, fronting on Lake street, which street in its width extended to low water mark on the shore of the lake, the situation of the property and the circumstances of the transaction raised the presumption that the fee to the entire width of Lake street, and to low water mark, passed by that deed, as part and parcel of the lot; and it became, by the platting and the conveyance, part and parcel of that lot. The whole also passed by the deed from Galpin, as it contained no restrictions nor any language showing an intention to reserve to the grantor any part or parcel of that lot. The same reasoning applies to all intermediate conveyances between Galpin and the plaintiff. In re Robbins, 34 Minn. 99."

Benton & Roberts, for appellant.

COPYRIGHT MATERIAL OMITTED

Thompson & Taylor and A. B. Choate, for respondent.

COLLINS, J.

In the year 1854 several persons were occupying land belonging to the general government at a certain point on the southerly shore of Lake Minnetonka, a body of water, navigable by steamers and other water craft of considerable size. Under their direction, and by one of their number, a town site was surveyed out and platted, named "Excelsior," and this plat was filed for record in the office of the register of deeds for the proper county June 26th of that year Upon and along the shore of the lake there was laid out a street, stated upon the plat to be 99 feet in width, named "Lake Street." According to the scale given upon the plat, however, this street, opposite the lot 5, hereinafter mentioned, appears to be 150 feet wide, and extends in width to the waters of the lake. As a matter of fact, at the time of making the plat, and at all times since, the distance between the front line of said lot on Lake street, as marked by stakes set in the ground when the survey and plat were made and by the person who made the same, and also the street line of the lot, as the latter has been constantly used and occupied for the past thirty years, was and is less than 99 feet distant from the waters of the lake at ordinary low water mark. The shore in front has been habitually used by the owners of the lot and by the general public for boating and like purposes, since the survey, except as that use has been interfered with by the defendant corporation, as specified hereinafter. The title to the land so conveyed and platted remained in the United States until April 17, 1856, when the Honorable Moses Sherburne, as judge of the proper judicial district, and in accordance with the act of congress of May 23, 1844, (5 U. S. Stat. ch. 17, p. 657,) purchased and entered the same at the local land office, in trust for the several use and benefit of the occupants thereof, and according to their respective interests. Among the occupants of the land so entered was one George Galpin, to whom, in the execution of his trust, on July 8, 1856, Judge Sherburne executed and delivered his deed of conveyance in due form, whereby he granted and conveyed to Galpin, his heirs and assigns, among other lots, those numbered 5 and 22 "in the original plat of said Excelsior." In 1865 Galpin and his wife duly conveyed "lots five and twenty-two of the original plat of Excelsior" to one Bickford. Plaintiff's title is derived from the last-named person through several mesne conveyances of the same lots, which adjoin, and have always been used as one tract of land. For several years defendant corporation has kept and maintained its roadbed and railway tracks on Lake street along and in front of lot 5, (lot 22 being in rear of lot 5,) but not nearer than 75 feet from the front line of lot 5 as traced on the plat, and has erected on the shore, and in and over the water of the lake, a wharf and a pavilion for the use of railway passengers. In the complaint possession of the premises so occupied was demanded, with damages for the detention; and, further, that the defendant corporation be forever restrained from maintaining its roadbed, tracks, and pavilion thereon. On proper...