LAMM V. CHICAGO, ST. PAUL, MINNEAPOLIS, & OMAHA R. Co. (Minnesota Supreme Court, Dec. 17, 1890.) Trespass on Contiguous Lots-Assessment of Damages. Where a single trespass is committed on two contiguous lots of the plaintiff, it is proper to assess the damages to both lots together, although they may not have been so used by the owner in connection with each other that they would be considered one tract in condemnation proceedings by a railway company. Railroad in Street-Consent of Authorities-Private Rights of City Councilman. An act of the legislature, or an ordinance of a city, authorizing a railway company to construct its road in a public street, gives it the right to do so only as against the public, but not as against owners of the abutting premises having private property rights in the street. And where a member of a city council votes for such an ordinance, his assent is referable only to the public easement, and not to his own private rights of property in the street. A Conveyance of Lots to Railway Company," for Railway Purposes" is not to be construed as covenanting that the street on which the lots abut, to the center line thereof, may be used for such purposes, while it remains a street, so as to interfere with any easement constituting a private right of property which the grantor may have therein, appurtenant to other property abutting on the same street. Continuing Trespass-Successive Suits.-Where a railway company unlawfully constructs its road in a public street so as to interfere with the private rights of abutters, it constitutes a continuing trespass, for which successive suits for damages may be brought, so long as the trespass is continued, until the occupation ripens into title by prescription. Vacation of Streets-Rights of Abutting Owner.-Where a public street is lawfully vacated, the owner of abutting property holds the fee of the former street, presumably to the center line, discharged from all easements in favor of either the public or the owners of other property abutting on the street. Same-Authority to Vacate.-Under the charter of the city of Mankato, no street can be vacated unless authorized by the legal voters of the city. Construction of Railroad in Street--Compensation to Abutter.-Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 36 Am. & Eng. R. Cas. 7, followed, holding that the owner of a lot abutting on a public street in a city has, as appurtenant to the lot, and independent of the ownership of the fee in the street, an easement in the street to its full width, in front of this lot, for the purposes of access, light, and air, which constitutes property, and cannot be taken from him for public use without compensation. Same-In Estimating Damages to a lot caused by the construction and maintenance of a railway in the street in front of the premises, but beyond the center line thereof, only such injuries to the property should be considered as proximately result from interference with the appurtenant easement for purposes of access, light, and air which the owner has in that part of the street. APPEAL from District Court, Blue Earth County. Case stated. MITCHELL, J.-The main facts in this case are the same as in Adams v. Chicago, B. & N. R. Co., 39 Minn. 286, 36 Am. & Eng. R. Cas. 7, upon the doctrine of which case, plaintiff bases his right of recovery. Fourth street in the city of Mankato is, and ever since prior to 1868 has been, as plaintiff claims, a public street 80 feet wide, running northerly and southerly through the city. The plaintiff is, and for more than six years before the commencement of this action had been, the owner and in possession of two contiguous lots, (7 and 8 in block 40) in the city of Mankato, and abutting on the westerly side of Fourth street. The defendant's predecessor and grantor, the St. Paul & Sioux City Railway Company, in 1868, constructed the main and certain side tracks of their railway (an ordinary commercial one) upon and along the easterly half of this street, in front of plaintiff's lots; no part of the same,, however, being laid west of the center line of the street. In 1881 the defendant succeeded to the rights of the old company, and has ever since maintained and operated these tracks for the purposes of their road, causing, as is alleged, damage and injury to plaintiff's property by reason of ashes, smoke, and cinders cast upon it by passing engines, and by the noises and jarring of passing trains, to the great annoyance and discomfort of plaintiff and his tenants. This is in the nature of an action in trespass to recover damages for these injuries to the property. There is no evidence that the injuries complained of are due to any improper construction or operation of the road, but, as already suggested, plaintiff rests his right to recover upon the doctrine of the Adams Case, that the owner of a lot abutting on a public street in a city has, as appurtenant to the lot, and independent of the ownership of the fee in the street, an easement in the street to its full width in front of his lot, for access, and the admission of light and air, which constitutes property which cannot be taken from him without compensation. It is impracticable, as well as unnecessary, to follow counsel through their elaborate discussion of their 81 assignments of error. We shall simply consider, in our own order, certain questions, the determination of which will dispose of every substantial question raised by the record. 1. But one exception is taken to the evidence of plaintiff's. title to the lots referred to. It is claimed that it was error to admit a judge's town site deed to plaintiff's re- Evidencemote grantor without its being first shown that the Judge's town judge had complied with all the requirements of site deed. statute, and that the grantee was the occupant en titled to the deed. This was unnecessary. It is a case where the presumption in favor of official acts obtains that the judge did his duty in all respects. Moreover, the defendant, being a stranger to the title, was not in a position to raise the question. Taylor v. Winona & St. P. R. Co. (Minn.), 47 N. W. Rep. 453 (October term, 1890.) Burden not on plaintiff to prove wrongful use. 2. It is further claimed that there was no evidence that defendant's use of, the street was unlawful; that its possession will be presumed to be lawful until the contrary appears; and that the burden was on the plaintiff to prove that it was wrongful. This proposition is sound law, but inapplicable to the facts. Plaintiff sufficiently proved that this land had been laid out, dedicated, and used as a public street in which he would have an easement appurtenant to his abutting lots. If the street had been vacated, or if defendant had by grant or otherwise, acquired an easement in it giving it a right to use i♥ for railway purposes, the burden of proving the fact was on defendant. The plaintiff was no more required in this case than he would be in an action of ejectment to prove a nega tive by showing that the title established by a chain of record evidence had not been divested. Assessment of damages to two lots. 3. It is also claimed that it was error to prove and assess the damages to plaintiff's two lots together. If this was a condemnation proceeding to ascertain plaintiff's compensation for taking a part of one of these lots, it may be that within the decisions of this court the lots would be considered two tracts, so that damages to the lot not taken could not be included in the award. All the cases cited by counsel are of this kind. But this is an action for a single, although continuing trespass, resulting in damage to both lots. Had the trespass been committed by a natural person on the lots themselves, there could have been no doubt of the propriety of assessing the entire damage to the whole property, in gross. The facts that the trespass was committed by a railway company, and in the street abutting the lots, do not change the rule. 4. A few words seem necessary to remove an apparent misapprehension of counsel as to the effect of acts of the legisla thorities Private rights of council. men. ture, or ordinances of cities, authorizing a railway Consent of au- company to construct its road on public highways or streets. These relate solely to the public easement. Such acts give the right as against the public merely. . But neither the state nor any of its municipal cor porations can grant private property, even for public uses, in this way. Gray v. First Div. St. P. & P. R. Co., 13 Minn. 315, (Gil. 289); Kaiser v. St. Paul, S. & T. F. R. Co., 22 Minn. 149. And, on the same principle, evidence that plaintiff, as a member of the city council, voted for an ordinance authorizing defendant's grantor to construct and operate its road on this street would have no sort of tendency to prove that plaintiff released any of his private property rights in the street, or that he consented to these rights being taken away or interfered with without payment of compensation. His official vote for the ordinance is referable solely to the public easement. 5. It is also assigned as error that the court excluded a deed dated June, 1868, from plaintiff to defendant's predecessor of the two lots abutting on the east side of way pur the street, and immediately opposite plaintiff's lots, Conveyance of which contained a recital to the effect that the lots lots for "railwere deeded "for railway purposes and depot poses." grounds." It is argued that this deed conveyed to the grantee the fee to the middle of the street, subject to the public easement, and, as against the grantor, gave the grantee the right to use and occupy the land to the centre of the street for railway purposes. Had the deed contained an express stipulation or covenant to that effect, a quite different question would have arisen. But a deed of the lots, although "for railway purposes and depot grounds," cannot be construed as covenanting that the grantee might use the street, so long as it remained such, for such purposes, so as to take away or interfere with the enjoyment of such easements as the grantor might have in it, appurtenant to other abutting property owned by him. In so far as the deed was offered for the purpose suggested, it was properly excluded. 6. It is urged with much earnestness by the general solicitor of the defendant company in his brief that, if plaintiff or his grantor ever had any cause of action, it accrued cessive suits. against the old St. Paul & Sioux City Railway Com- Continuing pany, in 1868, when it built these tracks in the trespass-Sucstreet; that the railway is a permanent and lawful structure which must remain; that as soon as these tracks were built, a right of recovery (if any ever existed) immediately accrued, once for all, for all damages, present or prospective, to the property; and consequently that the cause of action has long since been barred, and that, as to the lot which he (plaintiff) subsequently bought, he purchased it subject to defendant's easement or right to maintain its tracks where they were, and that the right of action for damages which had already accrued to his grantor did not pass by the deed to plaintiff. It needs the citation of no authorities to sustain so plain a proposition as that a cause of action for damages for trespass to real estate will not pass by a subsequent conveyance of the land, or that, if property is subject to an easement, a grantee of the land will take it subject to the easement. But it seems to us that counsel's position is based upon an entire misconception of the nature of the acts here complained of, as well as of this action. If the use and occupation of this street constituted an unlawful interference with the property rights of plaintiff's grantor, then, as against him, it had no easement, but was a mere trespasser, and it would not be claimed that a purchaser of land, upon which an intruder was then engaged in committing trespass, bought subject to the right of the intruder to continue his trespass. If the use and occupation of this street were unlawful, it was a continuing trespass, for which repeated actions to recover damages will lie as long as the trespass is continued, until the occupancy ripens into title by prescription. The distinction between an action for trespass and a proceeding to ascertain the compensation to be paid for the permanent taking of property for railway purposes must be kept in mind. This is the former, and in it only such damages can be recovered as had accrued at the date of the commencement of the action. The payment of the verdict or judgment would give defendant no right to continue its use of the street; and if, instead of plaintiffs bringing this action, the defendant had instituted condemnation proceedings, the award of compensation would not have included damages for prior trespasses, nor would the payment of the award be a bar to an action for such damHarrington v. St. Paul & S. C. R. Co., 17 Minn. 215, (Gil. 188) Hursh v. First Div. St. P. & P. R. Co., 17 Minn. 439. (Gil. 417;) Adams v. Hastings & D. R. Co., 18 Minn. 260, (Gil. 236;) Brakken v. Minneapolis & St. L. R. Co., 29 Minn. 41, 7 Am. & Eng. R. Cas. 593. The cases cited by counsel, notably those from Illinois and Wisconsin, are not at all analogous. They will, we think, all be found to be cases where the railroad or other company had a lawful right permanently to maintain its road or other structure as it then was, subject only to the duty to pay the injured land-owner compensation; the action, whatever its form, being in effect a substitute for condemnation proceedings, its object being to recover compensation for the permanent appropriation of property already taken. That this was really the situation in the case of Chicago & E. I. R. Co. v. Loeb, 118 Ill. 203, 27 Am. & Eng. R. Cas. 415, is apparent, especially from the separate opinion of Justice SCHOLFIELD. The same is true of Milwaukee & N. R. Co. v. Strange, 63 Wis. 178, 20 Am. & Eng. R. Cas. 413, in which state they have a statute authorizing the landowner to initiate proceedings to have his compensation ascertained for property taken for railway purposes, and under which the courts have held that, where the owner by consent permits a |