Downer v. St. Paul & Chicago Railway Co.

Cornell, J. On the trial defendant offered in evidence “ the record of the plat of Pepin for the sole purpose of [252] proving a statutory dedication of the premises or parcel of land in controversy to public use.” The court received it, against plaintiff’s objection, and “decided and ruled that said record of said plat should be received as evidence of a statutory dedication of the premises in question to public use.” The question raised by the record, argued by counsel, and which this court is called upon .to determine, relates to the correctness of this ruling. To effect a statutory dedication the statute authorizing it must be substantially, if not strictly, complied with. Baker v. City of St. Paul, 8 Minn. 491; City of Belleville v. Stookey, 23 Ill. 441; Village of Mankato v. Meagher, 17 Minn. 265. This must be so from the very nature of the dedication. It operates, not by way of estoppel, as-is the case with a common law dedication, but as a grant — by force of the statute, from whose provisions alone it derives its existence and operative effect. Being the creature of a statute which prescribes the requisites and conditions necessary 'to its creation, such, and such only, as are clearly embraced within its provisions can be treated and regarded as conve3rances of this “ new, novel and somewhat anomalous character.” When the legislature declares that a particular plat or instrument, executed in a prescribed way, and containing certain designated contents and statements, shall have a certain declared effect as a grant, which, but for such statutory provisions, it would not have, and by no possible judicial construction could have, it is not competent for a court to substitute something different, but which it deems equivalent, and to give it a like effect. This, in effect, would be judicial legislation. Whether the prescribed requisite is essential or not to the attainment of the object sought by the legislature-, is not a question for the court to consider. The fact that the law-making power has required it to be done makes it essential. The onty proper enquiry for the court is, whether the particular prescribed requisite has been substantial^'- complied with — not whether something different [253] has been done, which, in its judgment, may or may not be of equivalent import and meaning. The following is so much of the statute (Eev. St. ch. 31, Gen. St. ch. 29) as it may be necessary to refer to in connection with the question under consideration: “ Section 1. When any person wishes to lay out a town * * * he shall cause the same to be surveyed, and a plat thereof made, which shall particularly describe and set forth all the streets, alleys, commons, or public grounds, and all in and out lots or fractional lots, within, adjoining or adjacent to said town, giving the names, width, courses, boundaries and extent of all such streets and alleys.” Section 2 requires all the lots to be numbered, “ and their precise length and width stated on said plat,” and also prescribes the size of out lots, etc. “Section 3. The proprietor of the town * * * shall, at the time of surveying and laying (out) the same, plant and fix at a corner of the ground, or at the corner of a public lot, if there is any, and, if none, then at the corner of some one of the in lots in the town, and at the corner of each out lot, a good and sufficient stone, of such size and dimensions, and in such manner, as the surveyor directs, for a corner from which to make further surveys ; and the-point where the same may be found shall be designated on the plat.” Section 4 relates to the certification, acknowledgment and recording of the plat after its completion, and section 5 declares its effect “when made out, certified, acknowledged and recorded, as required by this chapter.” Nothing appears upon the plat showing the existence of any monument whatever within the limits of the plat or town, nor that any was ever established by the proprietors, or any one, under the direction of the surveyor or otherwise, as a corner from which to make further surveys, nor is any such point or place designated on the plat. It is claimed, however, that the statute in this regard has been [254] complied with, because there is marked on the extreme margin of the map, outside the limits of the town and the plat, what appears to be a government section corner, and that this may be used as a starting point from which to determine the location of the town and its survey. No reference whatever is made to this assumed corner by anything on the plat. It is left entirely to conjecture and inference whether, in fact, it was ever adopted as a substitute for the corner required to be fixed by the statute, and as a point in surveying the town, or whether it was ever intended to be made use of in future surveys. Its location is beyond the limits of the town, whereas the statute expressly directs that such monument shall be fixed at some one of the indicated corners within it. The statute has not been substantially complied with in this respect. As respects the location of the town, the plat indicates it as being in Wabasha county, and abutting on the Mississippi river, but in what government sub-divisions is not stated. The only way in which its location can be fixed is by ascertaining its distance from the assumed section corner hereinbefore referred to. In what range or township this corner is located is not stated. Whether any similar section corner exists in Wabasha county, in like proximity to the river, does not appear from anything on the plat. Assuming, however, that there is but one such corner, and that its location can be ascertained, then the only fact given for determining its distance from the river, town, or any street therein, is the following note, which appears upon the plat: “ Scale, 120 feet to one inch.” This is not a matter required or authorized to be stated on the plat by any statute. It forms no part of any certificate. It is not signed by any one, nor does it appear, except by inference, by whom it was put upon the plat. An actual application of this scale to the plat shows such a want of correspondence between them as renders it wholly unreliable as a means of ascertaining the distance indicated by any line upon it. A [255] plat thus defective cannot be deemed a sufficient compliance with the statute to authorize it to be received solely as evidence of a statutory dedication. For this error in the ruling at the trial the judgment of the court below must be reversed, and a new trial granted.