Koerper v. St. Paul & Northern Pacific Railway Co.

We think this case is controlled by the principles announced in Wilcox v. St. Paul & Nor. Pac. Ry. Co., 35 Minn. 439, (29 N. W. Rep. 148,) and Peck v. Superior Short Line Ry. Co., 36 *341Minn. 343, (31 N. W. Rep. 217.) The property in question, block 13 in Bottineau’s second addition to St. Anthony, was urban property which had been platted and divided into 10 lots. Presumably this division was with a view to its disposal and ultimate use in such subdivisions. If nothing more should be shown, each lot should be treated as a separate tract. Prima facie that character had been given to it by the proprietors; and, if any facts existed sufficient to rebut this presumption, the burden was on plaintiffs tq prove them. No evidence was offered to show that the property possessed any special adaptability for use as one tract for any particular purpose, or that the lots had any such connection or relation of adaptation or convenience for actual and permanent use as one tract, so as to render that mode of use reasonably necessary to the most advantageous and profitable enjoyment of the property. Nor was any evidence offered that the proprietors had ever improved it, or ever made any actual or permanent use of it, as one tract or otherwise, except the fact that they had leased the whole block to one Backus for a term of two years, the lease not specifying or limiting the uses to which he might put it. It is true the lessee was using it as one tract, as a yard on which to pile lumber; and, if the railway company was proposing to condemn the lessee’s interest in any part of the block, an entirely different question would arise. But these proceedings are only against the plaintiffs, as owners, and the result cannot affect the lessee. So far as the plaintiffs are concerned, they have offered no evidence reasonably tending to overcome the prima facie character of the lots as separate or distinct tracts, or tending to show that they have devoted them to actual and permanent use as one tract. The temporary use of vacant' city lots for the deposit or storage of wood, lumber, or other bulky articles, until the land is needed for improvement and use for the purposes for which it is ultimately and permanently designed, is not an uncommon thing.' This, however, is ordinarily nothing more than what is termed, in Peck v. Superior Short Line Ry. Co., supra, a mere “fugitive and temporary” use, and not an actual and permanent one, such ¡|s is necessary to constitute the whole premises one tract. Such temporary use is the very most that could be inferred from the mere fact that plaintiffs leased the *342whole block for two years to Backus; they themselves having in. fact never devoted it to any use whatever. The court below was therefore right, on this state of facts, in excluding evidence of damages-to the lots other than those of which the railway company took a part.

Order affirmed.