The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1898-07-13

Municipal Corporations.
Judge Buck yesterday handed down
a decision in the case of the st. Paul
& Duluth Railroad company against
the city of Duluth, which affirms the
findings of the st. Louis county dis
trict court. The case rules that stat
utory limitations do not run against a
municipal corporation. The court also
holds that the right granted to the
old Lake Superior & Mississippi Rail-
way company, now the St. Paul & Du-
luth, to construct it's railroad across
any public road or highway does not
extend to branch roads, which are
neither a part or appurtenant to the
main line.
The spur track in question was built
down to Rice point, over Garfield and
Arthur avenues. In fact neither
streets were more than marshes. In
1896 the city started to grade the
streets, and the railroad company got
out an injunction to prevent the city
from tearing up it's tracks. The city
railway company were also made par
ties to the action, as they intended to
build a line over the newly graded
street. The st. Paul & Duluth rail-
road in the application for injunction
claimed that they were owners of the
property by virtue of possession, as
they had occupied the land for fifteen
years. The court however. settles the
matter by saying that the city did not
have to defend its title against the
railway, as it could grade streets orig
inally plated whenever it suited it's
convenience, and that no persons or
corporation could pre-empt it's prop
erty, as the statutory limitations did
not run against the city. The syllabus
is as follows:
st. Paul & Duluth Railroad Company ap-
pel:ant VS.. City of Duluth and The Du-
luth Street Railway Company, responder S.
perior Mississippi Railway company NOW
st, Paul & Duluth Railway company by Sp.
Laws 1861. oh. l. TO construct its railroad
across any public road or highway does not
extend to branch roads, which are neither
part OF nor appurtenant to its main line to
the west end of Lake Superior.
The mere construction, maintenance and
occasional use by railroad company (Which
has no conveyance of the land) of an ordi-
nary railroad track across a plated street
while It still remains unimproved and unfit
for pubic use, and before public convenience
or necessity requires it to be opened and i'm
proved for use as street, does not consti-
tute adverse possession as against the pubic
Such occupancy must be presumed to be sub
1ect to the paramount right of the public
Order affirmed. Buck +
ne syildpl Vi tHe Olner decisions filed yes
terday are:
James E. Whitcomb, appellant, VS. Leon H.
Hardy ct al, respondents
Syllabus-Where a party seeks to rescind
contract he must act with reasonable dis
patch and promptitude, and no: wait until
the rights of third parties have become ma
terially involved; and if, knowing all the
facts. he voluntarily ratifes the contract. by
treating the consideration as his own, and the
other party cannot be put back in statu
quo. rescssion will not be permitted.
person making a contract In form and
substance while under mental incapacity NAV
subsequently, wien rational, SO act as to
constitute ratification equivalent to an ex-
press agreement which will be binding upon
him, especially if he retains and enjoys the
fruit thereof. Order affirmed. Buck. J.
Richard w. Hale and Henry w Billiard. as
Trustees OF the Estate of Alfred w. Eayen
appellants. VS.. Derrick H. Dresser and Da
ents.
Sylabus-Althougi 1t is the general rulo
that at common law a seal affixed to a writ
ten instrument imports consideration vet
equity disregards such forms and looks 70
the reality and requires an actual consider