
    Theodore E. Parker vs. City of St. Paul.
    November 10, 1891.
    City — Easement for Street or Levee — Non-User— Abandonment.— Where a city has acquired, by purchase or dedication, an easement in land for the purposes of a public street or levee, mere non-user for any length of time will not operate as an abandonment; at least until the time arrives when the street or levee is required for actual public use, and when the municipal authorities may be properly called upon to open or prepare it for such use.
    Same — Misuser.—Neither will a misuser by the municipal authorities constitute an abandonment.
    Ejectment, brought in the district court for Eamsey county, for lots in the city of St. Paul. Defence, title under a warranty deed of the lots from plaintiff and his wife, executed September 13, 1884, conveying the lots to defendant, the deed stating, after the granting clause, that it “is made only for a perpetual easement for the purpose of a public street or levee over and upon the above described property as condemned by the board of public works of the city of St. Paul for such street or levee along the bank of the Mississippi river in the Sixth ward of the city of St. Paul, and by the said board of public works confirmed on the 28th day of July, 1882.” In his-reply the plaintiff alleged in extenso the proceedings in a “pretended condemnation” of the lots in 1881 and 1882, for a public street or levee, under Sp. Laws 1881, c. 120, and that at the time of the conveyance he supposed that the city had acquired an easement by such proceedings, and therefore, for the consideration expressed in the deed, conveyed the easement. He alleges that the condemnation proceedings were wholly void, and also that defendant has abandoned the project of the street or levee, has never built or opened t, and does not intend to do either. He also alleges that about May 1, 1889, the defendant, without his consent, inclosed all the-lots in controversy with a good and substantial fence, and built two substantial and permanent dwelling-houses, and has since maintained them, on the property, and that this is, and was by defendant when doing it known to be, wholly distinctive of any easement the defendant may have acquired by the condemnation proceedings and by the deed. A motion for judgment on the pleadings was made by defendant, and granted by Brill, J. The plaintiff appeals from the judgment.
    
      P. M. Qvist, for appellant.
    
      Daniel W. Lawler and Herman W. Phillis, for respondent.
    
      
       G-ilfillan, C. J., took no part in .this-case.
    
   Mitchell, J.

The condemnation proceedings instituted by the defendant under the provisions of chapter 120, Sp. Laws 1881, cut no figure in this case, and it is wholly immaterial whether they were valid or void, as the city rests its right to the possession of the premises in controversy exclusively upon the deed from plaintiff set out in the answer, the execution of which is admitted in the reply. Neither is it necessary to consider whether that deed conveyed the title in fee, or, as claimed by plaintiff, only an easement for the purposes of a street or levee.; for, conceding the city’s right to be only the latter, it would constitute a complete defence to plaintiff’s action, (which is the ordinary action of ejectment,) unless that right has been extinguished. The only claim to that effect in the reply is that this easement has been lost by abandonment, and the only facts alleged as constituting such abandonment are two, — one of nonuser, and the other of misuser; the first, being the bare fact that no street or levee has ever been constructed, opened, or used over and across the premises; and the second, that in 1889 the city fenced the premises with a substantial and permanent fence, and erected thereon two dwelling-houses, which it still maintains, which was done for a purpose entirely foreign to the purposes for which the deed was given.

It is not necessary here to determine whether the public rights in land dedicated or purchased for street or other similar purposes can ever, under any circumstances, be lost by mere non-user. It may be said, however, that there is a valid reason for a distinction in this regard between public and private rights. The rights of the public are seldom guarded with the degree of care with which owners of private property guard their rights, and, consequently, acts or omissions which might weigh heavily against private persons cannot always be given the same force against the public. Moreover, streets, levees, and the like are often laid out on land acquired for or dedicated to such purposes with reference to future as well as present requirements, and therefore it is not legitimate to assume that the property has been abandoned merely because it has not yet been used by the public. It may also be safely laid down as sound, both upon reason and upon considerations of public policy, that until the time arrives when a street, levee, or the like is required for actual public use, and when the public authorities may be properly called upon to open or prepare it for such use, no mere non-user for any length of time, however great, will operate as an abandonment. Conceding, for the sake of argument, that, after such time has arrived, unreasonable delay in preparing it for and putting it to public use may work an abandonment by non-user, yet no such state of facts is alleged in the reply. All that is alleged is that no street or levee had then (a little over six years after the land was acquired) been constructed, opened, or used. This is wholly insufficient’ under any view of the case, to constitute an abandonment. See Reilly v. City of Racine, 51 Wis. 526, (8 N. W. Rep. 417;) Curran v. City of Louisville, 83 Ky. 628.

The only effect which plaintiff claims for the alleged acts of misuser is that they constitute an abandonment, whereby the public easement has been lost or extinguished; hence we are not called upon to determine what remedies he might have in an appropriate action in case the alleged acts constitute a misuser, or whether in such a case he might treat the city as a disseisor, and bring his action to recover the land subject to the lawful rights of the city for street or levee purposes. That is not what he asks for. He proceeds upon the theory that the public easements have been entirely extinguished by abandonment, and therefore that he owns the property absolutely, discharged from all such easements, and is entitled to recover the exclusive possession and control of it as of his former right. Therefore all we need say on this branch of the case is that a misuse, however great the perversion, is not an abandonment, and would not destroy the public easement. The construction of these dwellings would at most be a mere nuisance or encroachment upon the public easement, which does not destroy it or defeat its exercise. If such acts of misuse by municipal authorities were held to amount to an abandonment of public easements, and to work their destruction, these rights would be held by a very uncertain tenure. See Sprague v. Waite, 17 Pick. 309, 319; Proprietors, etc., v. Nashua & Lowell R. Co. 104 Mass. 1.

Judgment affirmed.  