Northern Pacific Railway Co. v. Lake

Young, J. The plaintiff brings this action to eject the defendants from a strip of land situated in the city of Fargo, said land lying and being in section 7, and immediately .south of the section line between section 6 and 7, in township No. 139 north, of range 48 west, upon which section line the street known as Northern Pacific Avenue is located. The plaintiff alleges that it is the owner in fee, and entitled to the posesssion of said real estate, except so far as the city of Fargo has the right to use the same for street purposes; that the defendants unlawfully entered upon said premises and ejected the plaintiff therefrom, and have since withheld possession thereof from plaintiff. The defendants answered jointly, and denied each and every allegation of the .complaint. The trial was to a jury. At the close of the testimony both parties moved for a directed verdict. Plaintiff’s motion was denied. Defendant’s motion was granted, and the jury was directed to render a verdict for the defendants. Plaintiff made a motion for a new trial, upon a settled statement of the case, which statement contained specifications of a number of alleged errors. The motion for new trial was denied bv the trial court. Plaintiff appeals from the order denying said motion. Counsel for respondents has presented a preliminary motion to [544] this court to dismiss plaintiff’s appeal, and to affirm the judgment “upon the ground that the statement of the case does not contain all of the evidence offered upon the trial.” The motion also contains a request that the abstract and briefs filed by appellant be stricken from the record herein, for the reason that the same do not comply with rule 18 of this court (6 N. D. xvm), This motion is without merit, and will be denied. Rule 18, referred to in the. motion, relates to the mechanical features of abstracts and briefs. In the brief filed by respondents’ counsel in support of his motion, no particulars are pointed out wherein the briefs and abstracts violate said rule, and a reference to the same does not disclose, airy substantial departure from the requirements of the rule referred to. The failure of a statement of the case to contain all. of the evidence is never a ground for dismissing an appeal which has been regularly taken. As already stated this case was tried to a jury and not to the court without a jury. The contents of statements in jury cases are governed by section 5467, Rev. Codes-1899, which does not require that all of the evidence offered shall be embodied in the statement, as is required in actions tried to the court without a jury, under section 5630, Rev. Codes 1899. Section 5467, which governs the contents of the statement in the case at bar, requires that only the substance of the evidence shall be stated; whereas section 5630, which governs statements of the case in actions tried to the court without a jury, requires that all of the evidence offered shall be embodied in the statement when a review of the entire case is demanded. It follows therefore that, had defendants’ motion been to strike out the statement, instead of for a dismissal of the appeal, it would have been denied. The only error assigned by counsel for the appellant to which we shall have occasion to refer relates to the court’s ruling upon the motion for a directed verdict. It is urged that the court erred in denying plaintiff’s motion and in granting defendant’s motion for a directed verdict. The plaintiff’s motion was based upon the ground “that the undisputed evidence shows that the plaintiff was the owner of the tract of land described in the complaint and in question in this action, and that the defendants are in occupation of the same as trespassers, and without any right or title whatever.” Defendants’ counsel stated' the grounds of his motion as follows: “Plaintiff has failed to prove the allegations of its complaint, and has failed to prove that it- is the owner of or entitled to the posesssion of -the premises in controversy.” The questions involved in these motions were questions of law purely, and turn upon facts which are not in dispute, The plaintiff established its title to the real estate in controversy by a chain of conveyances commencing with a patent from the United States government. The section line between section 6 and 7 forms the north boundary line of the tract of land in controversy and conveyed to plaintiff as just stated. Northern Pacific Avenue is-located on said section line. A dispute exists as to the width of the545 avenue, but it is conceded that a portion of the same is upon plaintiff’s land. It is shown that the defendants are in possession of a portion of said land immediately south of and within 40 feet of the section line, and have certain buildings thereon which they occupy. Defendants have no title to the land so occupied by them, and do not claim that they occupy it by any right or license derived from the plaintiff. Their sole contention and defense is that their buildings are entirely upon the street, and are not upon plaintiff’s land, to which it has the exclusive right of possession. Counsel for defendants urge that under the law Northern Pacific Avenue is 80 feet wide, — that is 40 feet on each side of the section line. If this be true, then of course defendants’ buildings are upon the street. This contention is based upon section 2477, Rev. St. U. S. which granted' “the right of way for the construction of highways over public lands not reserved for public uses.” and the territorial acceptance of said grant contained in chapter 33, Laws Dak. T. 1870-71, wherein all section lines were declared to be public highways as far as practicable (see Walcott Tp. v. Skange, 6 N. D. 382, 71 N. W. Rep. 544), and upon chapter 13, Laws Dak. T. 1867-1868, which provided that “no road shall be less than 80 feet wide.” Counsel for the plaintiff, on the other hand, for reasons we need not mention, denies that the street is 80 feet wide, as claimed by defendants, and allges that it is of much less width, and that defendants’ buildings are, at least in part, upon plaintiff’s land, of which it concededly has the exclusive right of possession. The question as to the width of the street is argued at great length by counsel for both parties in their briefs. It is a question, however, which we need not discuss or consider, inasmuch as we have reached the conclusion, without hesitation, that, in no event, _ can the rights of the parties to this action be affected by any conclusion which we might reach in reference thereto. It may be assumed that the defendants’ buildings are upon the street, as they claim. Nevertheless they are upon land to which the plaintiff has the title. Plaintiff’s land extends, as we have seen, to the section line, and includes that portion of the street upon which defendants’ buildings are situated. In this state, as in a large majority of the. states of the Union, the public has only an easement in streets and highways, the fee of the land remaining in the owner, subject to the easement, and he may exercise such acts of ownership and possession as do not interfere with the public use. It is patent that the maintenance df buildings upon pulilic streets for private use is an infringement of the right of the land owner as well as of the public. The courts, both of this country and England have held with uniformity that the original owner, or those claiming under him, of land dedicated to public use may maintain ejectment against a permanent incumbrancer or occupier, inconsistent with or repugnant to the purpose of the dedication or grant Gardiner v. Tisdale, 2 Wis. 153, 60 Am. Dec. 407; Thomas v. Hunt, [546] (Mo.) 35 S. W. Rep. 581, 32 L. R. A. 857; Taylor v. Armstrong, 24 Ark. 102; Coburn v. Ames, 52 Cal. 385, 28 Am. Rep. 634; Weyl v. Railroad Co., 69 Cal. 202, 10 Pac. Rep. 510; Wright v. Carter, 27 N. J. Law, 76; Carpenter v. Railroad Co., 24 N. Y. 655; Wager v. Railroad Co., 25 N. Y. 526; Sherman v. McKeon, 38 N. Y. 266; Strong v. City of Brooklyn, 68 N. Y. 1; Smeberg v. Cunningham 86 Mich. 378 56 N. W. Rep. 73, 35 Am. St. Rep. 613; Elliott, Roads & S. 519, 538; Jones, Easem. § § 547, 548; 10 Am. & Eng. Enc. Law (2d Ed.) 473, and cases cited at note 2. The legislature of the state adopted this doctrine of the courts in section 3360, Rev. Codes 1899, which reads as follows: “The owner in fee of a servient tenement may maintain an action for the possession of the land against any one unlawfully possessed thereof, though a servitude exists thereon in favor of the public.” Conceding, therefore that defendants’ buildings are upon the street, and that is all they claim, it follows, neces* sarily, that they are intruders and trespassers, both as against the plaintiff, the owner of the fee, and against the public represented by the city. Upon the undisputed evidence, the plaintiff is entitled to the relief prayed for in its complaint. The rulings of the trial court upon the motions for a directed verdict were erroneous. This conclusion requires a reversal of the order appealed from. Plaintiff’s motion for a directed verdict should have been granted. (88 N. W. Rep. 461.) The order of the district' court denying the motion for a new trial is reversed, and that court is directed to enter judgment in favor of plaintiff, and against the defendants, for the restitution of the premises described in plaintiff’s complaint. All concur.