Case v. Favier

By the Gowrt McMillan, J. This is an action of trespass queure clausum fregit. The complaint charges that on the 22d of December, 1864, at the town of Nininger, County of Dakota, State of Minnesota, the defendant did break and enter the close of the plaintiff, to-wit: lots 5, 6, Y, 8, 9, 10, 11 and 12 in Nininger’s Addition to the town of Nininger, and then and there placed upon and within the boundaries of said close, large quantities of wood, and expelled the plaintiff therefrom, &c., and claiming damage in the sum of $35. The defendant’s answer denies each and every allegation in the complaint, and alleges that the lots described in the plaintiff’s complaint constitute part of a public lev.ee in the town of Nininger, as originally laid out and platted, and recorded in the office of the Register of Deeds ; that said property was dedicated to the use of the public by the original proprietor; that it has always been used since said time as such levee, and has been improved by the corporate authorities of said .city as levee property, and has been so used without objection, except by the plaintiff on or about the 22d December, 1864. — 94 — The reply denies that the property was ever platted and donated by the owner as a public levee. The plaintiff on the trial introduced in evidence a deed from John A. W. Jones, the date of which is not mentioned, to him conveying lots 8, 9, 10, 11 and 12 mentioned in the, complaint, and testified that he entered into possession of the premises at the date of the [deed] and occupied the same up to December, 1864; that defendant entered upon the premises described in the complaint on that day, and piled wood thereon, all over the lots mentioned in the complaint, part of which, also occupied by the plaintiff, were leased by plaintiff; that plaintiff told defendant at the time that the premises were his. The defendant himself also testified, that plaintiff forbade him on that day to put the wood on the premises. From the testimony of A. Need, defendant’s witness, it appears that the wood was put by the defendant on the premises described in the complaint, which are embraced in the government subdivision described as the W. £ of the S. E. J of Sec. 18, Town 115, Nange 17, and that the wood was piled on what was known as the Califf farm. The defendant also introduced a [patent] from the IJ. S. to Peter M. Califf, dated March 19, 1857, conveying inter alia, the premises last mentioned, also a deed from Califf to Nininger, dated August 1, 1856, for same premises. There were several exceptions to the rulings admitting certain portions of the testimony of the witness Need, but the objections, we think, were not well taken, and do not deem it necessary to consider them at length. Several witnesses were then called by the defence, the substance of whose testimony was, that from 1856 the premises in dispute were used by the public as a public levee, without objection from any one till plaintiff objected; that steamboats landed and received and discharged freight, &c., at it daily, and that in winter it was used by the public for piling wood — 95 — on; that in its-natural condition it was a bluff; that in 1856, Nininger with other citizens were at work digging down the bluff making a level space; that plaintiff was there. One witness states that when the town plat of Nininger was left for record, blocks 211, 212 and 213, in Nininger’s Addition to Nininger City were then vacant, and shown to the witness by John Nininger as the steamboat landing; that in 1858,.the place was improved as a levee by the town in its corporate capacity. It also appeared that >the premises had been taxed as private property. At the close of the defendant’s testimony the plaintiff offered in evidence the record of a deed from John Nininger to John A. W. Jones, to show that in 1858 Nininger conveyed the land in dispute, and never dedicated it, or intended to dedicate it to public use, and also to show title in the plaintiff ; to which the defendant objected, and the Court sustained the objection, and plaintiff excepted. The plaintiff having called a witness Morehouse, offered to prove by him, that between October, 1861, and December, 1862, the plaintiff’s grantor was in the possession of the premises, claiming the right to the same, and that he got permission from him to bank wood on the premises, which was objected to as incompetent, irrelevant and' not rebutting; which objection was sustained and plaintiff excepted. The plaintiff having called the county auditor, L. Smith, and produced and identified the book for assessment of taxes for 1863, offered to prove by the witness that the premises in dispute had been assessed as private property sinee 1858, and the taxes so assessed paid ; which was objected to as incompetent and irrelevant, and the objection was sustained, to which plaintiff excepted. These objections. may all be considered together. The defendant’s answer, after denying the allegations of the com — 96 — plaint, may be regarded as setting up first, a statutory dedication, and second, a common law dedication; to sustain the first there is no evidence whatever in the case, no plat or survey was offered in evidence; to establish the second, the defendant proves title from the government through Califf to Nininger, and then proves the circumstances stated above,, tending to show a common law dedication by him. The important question in a dedication of this hind is the intention of the party claimed to have made the dedication; this is a question of fact for the jury to determine from all the circumstances. Anything therefore by which the intent may be established, or disproved, is material. A conveyance of the premises as private property about the time of the alleged dedication, by the alleged dedicator, is certainly an act which affects the question of intent, and should go to the jury in a question of this hind. The defence of dedication of the lócus vn quo, was matter in justification, and must1 be specially pleaded, and the defendant having the affirmative of the issue, the plaintiff was not bound to anticipate it in his testimony in chief. 2 Stark. Ev., part 2, page 1112. The deed to Jones was therefore proper evidence in reply to the defendant’s evidence on this point, although it was perhaps not competent at ■ this stage of the case for the purpose of showing title in the plaintiff, yet being proper rebutting testimony on the question of dedication, was admissible. The offer to show by Morehouse that Jones, the grantee of Nininger was in the possession of the premises, as private property under a legal title, claiming the same, and exercising acts of ownership over them during the time the defendant’s witnesses state they were occupied by the public as a levee without objection, would seem to go directly in rebuttal of the fact of such occupation by the public, and also go to the ' question of dedication. — 97 — The offer to prove the assessment of taxes on the premises 'as private property, and the payment of the same, was also admissible, as showing the light in which the parties assessed regarded the property, and also as affecting the question of acceptance by the public; the weight to be attached to this evidence was for the jury to determine, but we think the plaintiff was entitled to the benefit of the testimony, whatever it might be. That it was' the intention of the defendant, by the testimony offered by him, to establish the dedication by Nininger is manifest, we think, from every feature of the case. The issue is distinctly made in the pleadings. The. evidence of title in Nininger would not have been admissible unless the defendant had intended to justify under it in some way. 1 Green. Ev., sec. 625 and n. 1, and authorities cited. And it is insisted by the respondent’s counsel in this case, that the question is one for the jury and was submitted to them. So that while the testimony for the defence may have gone to the question of the plaintiff’s possession of the premises, it was primarily directed to the issue of dedication. We are satisfied that the plaintiff should have had the benefit of the testimony offered by him on this point, and that it was error to reject it. To the fourth point made by the appellant it is sufficient to say, that no exception to that portion of the charge embraced therein, was taken on the trial, and it cannot therefore be made ground of error here. It is not necessary to establish a common law dedication, to show an adverse, exclusive and uninterrupted possession of the premises for twenty years, with the actual or presumed knowledge of those adversely interested. The right of the public does not rest upon a grant by deed, nor upon twenty years possession,, but upon the use of the land, with the assent/ of the owner, for such a length of time, that the public aceom — 98 — modation, and private rights, might be materially affected by an interruption of the enjoyment. The length of time of enjoyment is a fact for the jury to consider as tending to prove an actual dedication, and an acceptance by the public. 2 Green. Ev., sec. 662. It is unnecessary to consider the further points in the case. For the reasons stated a new trial should be granted.