Brisbine v. St. Paul & Sioux City Railroad

Cornell, J, The tract of land which the company, by its petition, seeks to have condemned is therein described as embracing a portion of both St. Peter and Wabasha streets, extending from the Mississippi river back, and no other street or levee is indicated as existing in said tract. It is stated in the petition that such tract is sought to be taken “subject, however, to the easement now existing in said premises as a public street and levee,” and that the plaintiff Brisbine, 'and others therein named, are, as far as known to petitioners, “ the owners of said property, or some part thereof,” without specifying the particular portion belonging to each, nor whether the same is held and owned by them in common or in severalty. It appears from the — 126 — report of the commissioners appointed under this petition that they ascertained and awarded damages in respect to the ■entire tract separately in favor of the different owners, and upon the “ basis stated in the petition, viz., that the said taking, appropriation, and use of the said property by the said railroad company is, and will remain, subject to the easement now existing in said premises as a public street and levee,” and that they made a separate assessment of ■damages in favor of plaintiff as the owner of a portion of said tract, fifty-three feet in width on the river, and extending therefrom back across the tract, of that width, as therein particularly described. No portion of this fifty-three-foot strip is contiguous either to St. Peter or Wabasha streets. From this award Brisbine, as the owner of such parcel, appealed to the district court, where a verdict was rendered in his favor of $1,425, and from the order refusing to set aside the verdict, and denying a new trial, the company appeals to this court. One of the matters litigated and in controversy before the jury in the district court relates to the existence of a public street, thirty feet in width, extending across this strip of land next to the river, referred to in the testimony as “Water street,” and the point is made by the company that this is the easement mentioned in the petition, and, hence, the fact of its existence should have been assumed on the trial of the appeal, and the jury instructed to estimate plaintiff's damages upon that basis, and the court, therefore, erred in allowing any enquiries to be made in regard to this alleged easement. To this it is a sufficient answer that no such alleged easement is referred to in the-petition, the only streets therein mentioned being St. Peter and Wabasha streets, portions of each of which are included in the description of the tract specified as the one sought to be condemned. Assuming, however, that the petition “ fully and clearly stated that an easement, such as is claimed for Water street,” existed in the — 127 — premises, the plaintiff was not concluded by such statement from controverting the alleged fact, either before the commissioners or upon the trial of the appeal from their award. The law under which the company acted in instituting and conducting the proceedings in this case is the act of March 1, 1870, entitled “ An act relating to the St. Paul & Sioux City Railroad Company.” Sp. Laws 1870, c. 73. By section 3 of this act it is provided that all proceedings thereafter taken by the company, for the purpose of condemning land to its use, shall be governed by the provisions of sections 13 to 27, inclusive, of chapter 34, title 1, of the Revised Statutes then in force, relating to corporations, save that the proceedings should be had in, and the commissioners appointed should be residents of, the county where the property ivas situated, or the county to which it was attached for judicial purposes. Under these provisions commissioners were appointed upon the ex parte application of the company ; and although the company was required to state in its petition “ a general description of the land, property, and real estate” sought to be taken, and the names of the owners, if known, yet it was not requisite that they should receive, nor did they in fact have, any notice of such application, and hence had no opportunit3r upon the hearing- to raise any question as to the correctness of the company’s statement in regard to the ownership of the property. The first opportune the claimant had to be heard in the proceedings was before the commissioners, of whose meeting for the purposes for which they were appointed he had notice ; and as it is made the duty of the commissioners to hear the allegations and testimony of all parties interested, and to make a separate assessment of damages in favor'of each owner, it necessarily follows that where, as in this case, the company has not in its petition specified the separate interest and estate of each, the very first enquiry to be made and settled by — 128 — them is the one relating to the extent and character of such-estate and interest, in order to determine the damages-accruing to its owner; and, in so far as an enquiry -into the title is necessary to the determination of this question, it is a proper matter for the consideration of the commissioners. So, in case the claimant’s estate and interest is incorrectly stated in the petition, he is not thereby concluded and prevented from asserting and proving his real claim, interest, and estate, although, as was held in Knauft v. St. Paul, Stillwater & Taylor’s Falls R. Co., 22 Minn. 173, and in Rippe v. Chicago, Dubuque & Minn. R. Co., ante p. 18, the company would be estopped from disputing such his claim and title on an appeal from an award made upon that basis by the consent of both parties. Whenever, therefore, either by an indefinite statement in the petition as to the interest of the claimant in the property, or by one not accepted by him as true before the commissioners, it becomes necessary for them to enquire into and decide the question of title or interest as incidental to the question of damages, it is proper matter for their consideration, and their decision thereon is reviewable, upon appeal, in the district court. Assuming, therefore, that a public easement, such as is claimed for Water street, was specifically alleged to exist in the premises, by the petition, the plaintiff, Brisbine, was not thereby precluded from controverting the alleged fact before the commissioners, nor the court from reviewing their decision thereon upon the trial of the appeal from their award. Inasmuch, also, as the particular portion of the tract of which plaintiff was alleged to be a part-owner was not specified in the petition, this, too, became a proper subject for investigation and decision, both before the commissioners and upon the trial of the appeal. It follows, from these views, that the district court was correct in allowing an enquiry to be made into plaintiff’s title, and the existence of the alleged easement,, for the — 129 — purpose of ascertaining the character and extent of his estate and interest, and also in its instruction to the jury that “the company, by its proceedings, had so far recognized certain rights of property in the plaintiff that the latter was entitled to nominal damages.” It is contended on the part of the company that the: plaintiff, in his deed to Whitacre, recognized and admitted as a fact that block 35 extended to the Mississippi river, and that there was no intervening land between it and the river; that the description in his deed to Byram must be construed in reference to this admitted fact, and, as such description included all of the block to which he had any title, there was nothing left in him between it and the river. In the Byram deed no reference whatever is made to the former conveyance to Whitacre, nor to the description therein contained. An admission in the latter, even though good as to Whitacre and his grantees, would not be binding or conclusive upon plaintiff as against Byram and his grantees. The grant to Byram is to be determined by his deed, and' not by what was reserved in the. conveyance to Whitacre. The concluding clause of the description in the Byram deed — ‘£ and being fifty-three feet in front on Bench street, and extending of like width to Water street” — expressly limits the grant therein made to Water street, whatever it was. If the street was one in which the public had acquired an casement by either a statutory or common-law dedication, the grunt extended to its centre line, subject only to such easement; otherwise, it terminated at the dividing line between it and the block. In this latter case the absolute title in fee to all the land between such dividing line and the river at low-water mark undoubtedly remained in the plaintiff, together with all such riparian rights as follow the ownership of real estate bordering upon a navigable stream. What these rights are, especially in regard to land acquired originally from the United States, and bordering, as this does, upon the Mis — 130 — sissippi river, we regard as fully and correctly settled by the Federal Supreme Court. Dutton v. Strong, 1 Black, 23 ; Railroad Co. v. Schurmeier,7 Wall. 272; Yates v. Milwaukee, 10 Wall. 497. According to the doctrine of these decisions, the plaintiff possessed the right to enjoy free communication between his abutting premises and the navigable channel of the river, to build and maintain, for his own and the public use, suitable landing-places, wharves, and piers, on and in front of his land, and to extend the same therefrom into the river, to the point of navigability, even though beyond low-water mark, and to this extent exclusively to occupy, for such and like purposes, the bed of the stream, subordinate and subject only to the navigable rights of the public, and such needful rules and regulations for their protection as may be prescribed by competent legislative authority. The rights which thus belonged to him, as riparian owner of the abutting premises, were valuable property rights, of which he could not be divested without consent, except by due process of law, and, if for public purposes, upon just compensation. Yales v. Milwaukee, 10 Wall. 497. If, as is claimed by defendant, Wafer street was in fact a street lawfully dedicated to public use as such, whatever its actual width — whether occupying the whole or only part of the intervening space between the block and the river- — -the fee of the south or river-side half thereof remained in the plaintiff, subject only to the specific easement created by the act of dedication. Banks v. Ogden, 2 Wall. 57. No additional servitude could be imposed upon it against his will, except far some public purpose, and upon compensation as provided by law. The company had no right to occupy it for the purposes of its road, nor could it acquire any such right from the city of St. Paul. Gray v. First Div. St. Paul & Pacific R. Co., 13 Minn. 315; Schurmeier v. St. Paul & Pacific R. Co., 10 Minn. 82. Being such owner in fee of this half of the street, even though no soil was left — 131 — remaining between it and the river at low-water mark, lie was a riparian proprietor of land bounded by a navigable ■stream, and certainly possessed of all tbe rig’kts appurtenant to such ownership. Banks v. Ogden, 2 Wall. 57 ; Yates v. Milwaukee, 10 Wall. 497. There is nothing in the case tending to shoiv that the plaintiff or any of his grantors had ever parted with any of these rights. The plat of the “City of St. Paul,” or •“Lower St. Paid,” introduced in evidence, which is the ■foundation upon which rests the claim that Water street is .a public street and levee, indicates no intention on the part ■of the proprietors of that plat to dedicate any portion of the premises in question to public use for the purpose of a levee •or landing. Water street is therein designated as a street thirty feet wide, and there is nothing on the plat to indicate its dedication to any other purpose or use than that of an ■ordinary street in a city. Hence, the point raised upon the ¡argument as to the effect of a dedication, for levee purposes, •of a strip of land bordering upon the river, upon the riparian rights of the proprietor, is not properly before the court for consideration. That this plat was ineffectual as a statutory dedication was expressly decided in Baker v. City of St. Paul, 8 Minn. 491. Neither did the act of February 14, 1866, (Sp. Laws, 1866, c. 90,) and the record of the plat thereunder, give it any such effect, or constitute any evidence of dedication as against the plaintiff, as he was not a party thereto, and the original patentee, Robert, had parted with his interest in the promises in question prior to his joining in “the execution of the plat. Whether any public easement existed in the premises, by ■virtue of a common-law dedication, depended upon the intention of the parties to such alleged dedication, which, as a question of fact, was properly submitted to the jury upon the whole evidence, under instructions unquestionably correct as to the rules of law applicable thereto. — 132 — The whole case seems to have been correctly disposed of by the trial court, and none of its rulings upon the admissibility of evidence, or in its instructions to the jury, furnish, any just ground for a new trial. Order affirmed.