Village of Wayzata v. Great Northern Ry. Co. , 50 Minn. 438 ( 1892 )

Gilfillan, C. J.

On the plat of the village of Wayzata, Lake street is delineated thus:

As appears from this, the lake curves upon the street. At the nearest point the north line of the street is distant from high-water mark sixty-five feet; from low-water mark, one hundred and twenty-five feet.

On this showing the question presented is, where is the southern boundary of the street along the water, — that is, between the artificial boundaries made by the short line on the east and the short line on the west, which must be taken to mark the southern line of the street at those points? Was it intended that the street between those lines should be one hundred feet wide, or that it should go to high-water mark or to low-water mark? Where the southern boundary of the street runs is a question of intention to be ascertained by the plat itself, there not appearing to have been any monuments placed on the ground to mark such boundary. It can hardly be supposed it was the intention to make the street, along that part of it, just one hundred feet wide, for the most obvious and natural means to indicate such intention was to continue the short lines we have mentioned across the water till they met. The fact that they stop-at the water shows that they were not intended to indicate the boundary any further. There is nothing else to indicate it but the natural object, the lake; and that must be taken to have been the boundary-intended. We know of no rule for determining the extent of a grant or dedication of land to public use, where a navigable lake or river is adopted as one of the boundaries, other than that applied in the-case of a private grant. Where, in a private grant, the land is-bounded only by navigable water, the grantee takes to the low-watermark, — Schurmeier v. St. Paul & Pac. R. Co., 10 Minn. 82, (Gil. 59;) Brisbine v. St. Paul & Sioux City R. Co., 28 Minn. 114; Carli. v. Stillwater St. Ry. & T. Co., 28 Minn. 373, (10 N. W. Rep. 205;) Union Depot. etc., Co. v. Brunswick, 31 Minn. 297, (17 N. W. Rep. 626,) — and the riparian rights go with the upland. Where the grant or dedication to the public is for the purpose of passage, and goes to* the water, the conclusion — there being no indication of a -contrary intention — is inevitable that the grant or dedication was intended to enable the public to get to the water for the better enjoyment of the-public right of navigation.

The lake at its low-water stage was, therefore, the southern boundary of Lake street at the place indicated.

The charter of the Minnesota & Pacific Railway Company (Laws Ex. Sess. 1857, ch. 1, § 7) granted it “ the right and authority to construct its railroad and branches upon and along, across, under, or over any public or private highway, road, street, plank road, or railroad, if the same shall be necessary; but the said company shall put such highway, road, street, plank road, or railroad in such condition and state of repair as not to impair or interfere with its free and proper use.”

The corporation which succeeded to the franchises of that company laid its track upon and along Lake street, and maintained it there until such franchises and the railroad passed to defendant, which continues such use of the street. It is unnecessary to consider whether the condition attached by the charter to the right to lay a railroad in a public highway or street, to wit, “if the same be necessary,” is a continuing condition, so that, if a court should consider it no longer necessary, it might order the railroad to be removed; for the trial court found, and the evidence sustains the finding, that it is now necessary to maintain the railroad on the street.

But the condition, “the said company shall put such highway, road, street, plank road, or railroad in such condition and state of repair as not to impair or interfere with its free and proper use,” is, from its nature and manifest purpose, a continuing one, so that the company may at all times be required to keep the highway, etc., in the specified condition and state of repair, so far as reasonably consistent with the presence of the railroad upon it. This justified the court, upon the facts found, in directing what the defendant should do to meet the requirement of the condition. So far as the findings of facts are sufficiently pointed out in the assignments of error to call upon us to examine them, we see no reason to doubt their correctness. There is no sufficient assignment of error to the facts specified in clause thirteen of the findings, the assignment being general as to all of them, — of which there are at least half a dozen.

When a railroad company, with such a right granted it in its charter as the above-quoted clause from defendant’s charter, lays its track upon and along a road or street, it will be presumed to have entered and to be in possession under that right, and its possession will be consistent with, and not hostile or adverse to, the public right. Something more than the mere presence of the track upon the road or street — a claim of a hostile right, or an exclusion of the public from the use — will be required to show the possession adverse to the public.

(Opinion published 52 N. W. Rep. 913.)

The clause quoted does not contemplate the construction upon a road or street of the company’s stations, depots, or other buildings, nor the use of it as a railroad yard.

There being no charter right to which the occupation of the street by buildings could be attributed, and as such occupation of the spaces covered by the buildings was necessarily in exclusion of the public use as a street, and so hostile to the public right, adverse possession of the parts of the street thus exclusively occupied may be •claimed. The court below seems to have found such possession adverse, and sustained the defense as to the parts of the street thus held adversely for more than twenty years before the action was commenced. It overruled the defense as to the parts of the street so occupied for less than twenty years, and therein it was right, for the law reducing the time to fifteen years did not go into effect until after the action was commenced.

The judgment rendered was appropriate to the facts found. Those facts appear to have been litigated without objection at the trial, and it is now too late to raise the objection that proof of them was inadmissible under the pleadings, or the objection that the relief granted was not prayed for in the complaint.

Judgment affirmed.