MINNESOTA SUPREME COURT.

APPEAL by defendant from a judgment of question in the case is whether the evidence

the District Court for Ramsey County in favor of plaintiff in an action brought to recover possession of certain real estate. Mod-verse possession was interrupted before the ified.

on the former appeal. 45 Minn. 394, 395. | the petition, there was every reason why he The nature of the scheme then on foot to pro- should sign it, and no conceivable reason why vide a union depot and terminal facilities for he should not. As against this array of cirall railroads coming into St. Paul is too fa- cumstantial evidence, the mere recollection or miliar as a matter of local history to require to memory of Mr. Hill, after the lapse of a numbe related at length. It is enough for present ber of years, and after the situation of affairs purposes to say that the contemplated site for had wholly changed, was by no means concluthis depot, and the one subsequently used for sive; and, in considering the evidence as to that purpose, consisted of certain lots (and the Mr. Hill's authority to act in the premises for intervening streets and a part of the levee abut- the Manitoba Company, it must be recolting these lots) then owned by the Manitoba lected that, as that company's possession had Company, and which that company proposed not yet ripened into title, the fact, if fact it to convey, and afterwards did convey, to the was, that he had no authority to make conUnion Depot Company, in which the Mani- tracts affecting the title of its real estate, is not toba Company was itself a shareholder. The controlling. The evidence of adverse posseseffect of the act of the city council was that sion, on the one side, and of disclaimer, on the the title of the land vacated was in the Mani- other side, all consisted of what may be termed toba Company relieved of the burden of any "matters in pais," of what certain persons public easement, and thus to enable it to sub from time to time did as representing the desequently convey an unencumbered title to the fendant or its predecessors. What Mr. Hill entire tract to the Union Depot Company, did, as general manager of the Manitoba Comwhich it did for the sum of $75,000. As was pany, by way of asserting a claim to the premsaid on the former appeal, the part of the levee ises in its behalf, would have been competent asked to be vacated did not include the land evidence for the defendant to establish its in controversy; but, if it was a public levee, it claim; and, if so, then certainly the same would necessarily follow that the land in con- character of evidence would be competent in troversy was also, for the color or claim of behalf of the plaintiff to establish a disclaimer title on the part of the Manitoba Company and by it. The fact that the Manitoba Company the title of the public and the city were pre- has never repudiated or disaffirmed Mr. Hill's cisely the same as to both. Hence, assuming act, but accepted and has all these years retained that Mr. Hill had authority to act in the prem- the benefits of it, is competent evidence tendises for the Manitoba Company, the petition ing to prove both prior authority and subsequent was, on its face, a recognition of the right of ratification. The evidence already considered the public and the city in the land in contro- was of itself sufficient to justify the court in versy, and that the possession of the Manitoba finding that there was such a recognition by Company was subordinate to that right. the Manitoba Company in 1879 of the right of the public and the city as interrupted the continuity of the prior adverse possession. It therefore becomes unnecessary to consider the subsequent action of the defendant itself in petitioning the city council in June, 1881, for leave to construct the "lower warehouse," and in April, 1882, for approval of the plan of its proposed new "freight house." and for leave to extend the river front of the same a certain distance further out than the river front of the old building.

It is contended, however, (1) that Mr. Hill never intended to recognize any such right, because he did not know, when he signed the petition, that it asked for the vacation of any part of the levee east of Sibley street, which included all of the levee to which the Manitoba Company ever asserted an adverse claim; (2) that he had no authority to act in the premises for the Manitoba Company; and (3) that that company never ratified his act. We are of opinion that the evidence would justify a finding on each and all of these questions adversely to the defendant. The presumption is that a person knows the contents of an instrument which he signs. Mr. Hill was the general manager of the Manitoba Company, and as such was, according to his own testimony, invested with very large powers. He was one, at least, of the chief promoters of the union depot scheme. He was the representative of his company in all matters pertaining to that enterprise. He must have been entirely familiar with the condition of the title to the premises, and hence must be presumed to have known that the passage of this ordinance of vacation by the city council was necessary to the successful consummation of the proposed scheme to provide a union depot. It must also be kept in mind that the claim of the Manitoba Company to Island 11 had been judicially determined to be unfounded; also, that at the date of this petition the adverse posses-street, and highways, with its own tracks necession, if any, of the railway company, had not sary to maintain such connection, condemnyet ripened into title, and could not do so, in ing the same to its own use in the same manany event, for more than three years. With ner and upon like terms and conditions as the these facts Mr. Hill must have been familiar. | St. Paul & Chicago Railway Company or the Hence, had he known the exact contents of St. Paul & Pacific Railroad Company is au

It only remains to consider what rights, if any, the defendant has under City Ordinance No. 286 and under the legislative act of February 28, 1872. An examination of the ordinance satisfies us that it amounts to nothing more than a revocable license. Its language is that of a license or permit, and not of a grant. By the terms of Special Laws 1872, chap. 93, the defendant was required to make and maintain a continuous connection, through the city of St. Paul, between the St. Paul & Chicago Railway (river road), which it had just purchased, and its line formerly known as the Minnesota Central Railway; and to that end it was authorized, among other things, "to the extent that was reasonably necessary to the establishment and maintenance of such connection, to enter upon and cross over or under the tracks, roadbed, and lands of any other railroad corporation, and any other lands,

with directions to the court below to modify its conclusions of law and order for judgment in accordance with this opinion.

A rehearing having been had, Mitchell. J., on January 7, 1896, delivered the following opinion:

This appeal has once before been considered by this court. The record and briefs were very voluminous, and the main issue was whether the defendant had acquired absolute title to the premises in controversy by adverse and the briefs mainly, devoted to a discussion of that question. The natural result was that other and less important issues received but little attention from either court or counsel. The defendant's claim of certain rights under City Ordinance No. 286 was disposed of in our opinion by merely saying that the ordinance amounted to nothing more than a revocable license; that its language was that of a license or permit, and not of grant. Upon an application for a reargument of this question, we became satisfied that sufficient consideration had not been given to it, and that there was at least grave doubt whether the ordinance, if valid, did not constitute an irrevocable contract between the city and defendant. We therefore ordered a reargument of the question as to the force and effect of this ordinance, and the rights of the defendant under it. This involves two questions: First, the authority of the city council of St. Paul to pass the ordinance; and, second, if they had the power to pass it, its force and effect. These questions should be considered in the order named; for, if the ordinance is held invalid, it will be unnecessary to consider the second question at all.

thorized to condemn land for right of way and railroad purposes, but the right to condemn and occupy any other street in the city of St. Paul shall not be exercised so long as said company has the right to use the public levee for such connection, and can accomplish such connection by the use of such levee. It is apparent that this act gave to the defendant the same rights to enter upon and cross over streets and highways with its tracks, necessary to the maintenance of this connection, which were possessed by the St. Paul & Pacific Railroad Company in like cases. The rights of the lat-possession. The oral arguments were wholly, ter company in that respect are defined in Laws 1857 (Ex. Sess.) chap. 1, subchap. 1, § 7. It is also apparent that the act was designed to give them these rights in the public levee as well as in other streets." By virtue of its paramount authority over all highways, the state had the power to confer this privilege or right so far as the public easement was concerned. But this could not affect the private property rights of abutting owners (Gray v. First Div. of St. Paul & P. R. Co. 13 Minn. 315, Gil. 289); hence the necessity for authorizing the defendant to exercise the right of eminent domain whenever necessary. It is contended by plaintiff that, under the provisions of this act, the defendant could only acquire the right of way over and across streets and the levee by condemning the public easements as well as the private property rights of abutting owners. The statute is somewhat awkwardly worded, but we do not think that this is its proper construction. The city, in its corporate capacity, has no proprietary interest in a public street or a public levee. It holds the title merely in trust for the general public. If the public was to be condemned, how could its value be estimated, and to whom would the compensation be payable? Our construction of the statute is that it is a grant of the privilege or right of use so far as the public easement is concerned, but that if such use amounts to an additional servitude upon the street or levee, which affects the private property rights of individuals, the defendant may acquire such rights by the exercise of the right of eminent domain. Our conclusion, therefore, is that, under the provisions of this statute, the defendant has the right, as against the public and the city, to occupy this levee with its tracks so far as necessary to make and maintain a continuous connection through the city between its two lines referred to in the act.

The court found that defendant's two north erly tracks across the premises in controversy constitute a section of the line constructed by defendant to make and maintain a continuous connection, through the city, between these two lines, and that these two tracks, with their continuations east and west of the premises in controversy, furnish and afford the defendant the only practical means of making and maintaining this connection. The conclusions of law and order for judgment must therefore be modified so as to permit defendant to maintain these two tracks.

The defendant assigns as error the rulings of the court in admitting various items of evidence, but we find no substantial merit in any of them, and nothing of sufficient importance to require special notice. Cause remanded,

The land in question fronts on the Mississippi river, and was dedicated by the original proprietor to public use as a "levee." Defendant's grantor, being in possession of the premises and claiming adversely to the city, had erected thereon a wooden freight house, fronting on the river, and some 400 or 450 feet long. In 1881, after defendant took possession, it presented a petition to the common council of the city of St. Paul, stating that it contemplated taking down this freight house, and replacing it with a large and permanent one, and asking permission in the meantime to erect a temporary wooden structure. This permit was granted, the limit of the permit being two years. In March, 1882, the defendant presented a further petition to the common council, stating that it was then ready to construct its new freight house, which was described as to be a large, elegant, and permanent structure, plans of which were submitted. The petition further stated that, in order to carry out the plan of the structure as demanded by the growing commerce of the city, it would be necessary to extend the river front of the building out into the river from 7 to 10 feet further than the front of the old one; and requested the council to approve the plan of the proposed building, and to grant permission to extend it out into the river to the limit above mentioned. The plan proposed was of a building about 600 feet long and 50 feet wide, of brick, with stone foundation and a slate roof. In response to this petition the council, in

April, 1882, by a unanimous vote, passed the ordinance in question (No. 286), which is as follows:

"Section 1. That permission be, and the same is hereby, given to the Chicago, Milwaukee, & St. Paul Railway Company to take down and remove the old freight house, which is owned and used by said company, standing next below Sibley street on the levee, and to erect a new freight building upon the site now occupied by said old freight house, provided that the new structure may be extended a distance of 10 feet nearer the Mississippi river than the old one, if the city engineer shall be of the opinion that the same shall in no manner interfere with the navigation of said river. And provided further, that said new freight-house shall be built substantially in accordance with the plans on file in the office of the city clerk. And provided that the basement or lower story fronting on the river shall be laid with substantial floor, and said lower story, together with the platform on the river front, and the railway track along the said river front shall be open and subject to the use of the public for all wharfage and transfer purposes without charge, and a sufficient platform and entrance for drays shall be provided for said lower story at the end of said building.

the charter of the city of St. Paul relating to the powers of the city council over public grounds within its limits, and which were in force in 1882, when Ordinance No. 286 was passed. The charter then in force was Spec. Laws 1874, chap. 1, and amendments. Subchapter 4, § 7, of that act, provided that "the common council shall have the care, supervision, and control of all public highways, bridges, streets, alleys, public squares, and grounds, and parks and sewers, and all other public improvements and public property within the limits of said city.' The able counsel for the defendant seems to rely with confidence on this as giving authority to the common council to pass the ordinance in question. He says: "Statutory provisions of this kind have uniformly been held to confer upon city councils authority to grant the railway com panies the right to occupy public streets; at least, as against the city and the public." We have examined all the authorities cited by counsel, and submit, with all deference to him, that none of them support his contention. Some of these cases merely hold that a certain use of a street, as by erecting telephone poles and wires, or constructing a horse railroad, is a proper "street use," and imposes no additional servitude on the street; while others are "Sec. 2. Nothing in this ordinance contained merely to the effect that, under a general grant shall be construed as waiving any of the rights of power to regulate the use of streets, the city of the city of St. Paul in and to the real prop-council has the power to prescribe the manner erty proposed to be occupied by said building. Sec. 3. This ordinance shall be in force from and after its passage.'

Thereupon the defendant proceeded and erected, and has ever since maintained, the freight house, in accordance with the provisions of the ordinance.

in which, or the conditions upon which, streets may be occupied for a legitimate "street use." In Gregsten v. Chicago, 145 Ill. 451, the city had an express grant of authority to do what it did. In St. Louis v. Western U. Teleg. Co. 149 U. S. 465, 37 L. ed. 810, the only thing decided was that the city was authorized by the It may be here suggested that the authority of Constitution and laws of Missouri to impose defendant's grantor, the St. Paul, Minneapolis, upon a telegraph company putting its poles in & Manitoba Railroad Company, under its char- the streets of the city a charge in the nature of ter (Laws 1857, Ex. Sess., chap. 1), to construct rental for the use of the streets for that purits railroad upon and along, across or over any pose. Neither party was in position to quespublic or private highway," etc., "if the same tion the authority of the city to permit the shall be necessary," does not extend to or con- company to place its poles in the streets, for it template the construction upon a highway of was by virtue of the exercise of this power stations, depots, freight houses, or other build that the city claimed the right to make the ings, but applies only to railroad tracks, where charge, and the permit granted by the city in the use of the highway by the railroad com- the exercise of this assumed power constituted pany will be concurrent with that of the gen- the only right on part of the company to eral public, and not exclusive. Wayzata v. put its poles in the street. We are of the opinGreat Northern R. Co. 50 Minn. 438. It is ele-ion that the "care, supervision, and control" mentary law that a municipal corporation has no proprietary rights in the streets, levees, or other public grounds within its limits. What ever rights it has it holds merely in trust for the public. It is equally elementary that all its powers over such public grounds are derived from the legislature. It can exercise no power over them, except such as is given it by the legislature, either expressly or by necessary implication. It is also well settled that a grant of power to a city to grant any privileges or rights in streets or other public grounds is to be strictly construed, and not enlarged by construction; and, if there is a fair or reasonable doubt as to the existence of its power, it will| be resolved against the municipality. Dill. Mun. Corp. 705; St. Louis v. Bell Teleph. Co. 96 Mo. 623, 2 L. R. A. 278.

With these general principles in mind, we come to the consideration of the provisions of

of streets and public grounds, and the power to regulate their use, which is the usual and ordinary grant of power to municipal corporations, and which is certainly as broad as the power granted by the section above quoted, is not sufficient to empower them to authorize the use of such grounds for the purpose even of constructing and operating thereon a commercial railway, much less of erecting thereon depots, freight houses, or other buildings which exclude the general public from the concurrent use of a part of the street or other public ground. Dill. Mun. Corp. § 705, and cases cited; Lackland v. North Missouri R. Co. 31 Mo. 180. In this state these would not be proper street uses," but the imposition of an additional servitude upon the street. Section 8 of the same subchapter of the city charter gives the common council power to vacate and discontinue public grounds, etc., upon certain