(186 N.W.)

thorized by legislative enactment to reimburse, constructed after February 1, 1919, and any county for the money expended by it sub- that purpose should not be defeated by any sequent to February 1, 1919, in permanently too narrow construction of language. improving any road hereinbefore specifically described, in accordance with plans and specifications therefor approved by the commissioner of highways."

It will be observed that said section 2 (h) contains two distinct provisions. It imposes upon the counties the duty to reimburse its cities and villages for expenditures made after February 1, 1919, in carrying out the road building program and then provides for reimbursement of the county by the state.

[1] 1. There seems no question but that under article 16 the state may with propriety pay for the construction of the normal width of trunk highways where they run through villages and cities and that, if the There is no doubt of the power of the city of Waseca had not paved these ways, state Legislature to require a county to the state might authorize the improvement improve at its own expense, roads within the of the very streets that are here in question. territorial limits of the county. This power [2] 2. The question here is, however, of the Legislature to require such a governwhether the city, having made the improve- ment agency to perform at its own expense, ment, may have reimbursement therefor. Chapter 522, Laws 1921, § 2 (h), provides: "The moneys paid out by any county to any township, borough, village or city, in reimbursing any such township, borough, village or city for so permanently improving roads or any part thereof described in article 16 of the Constitution of the state of Minnesota, heretofore and subsequent to February 1, 1919, shall be regarded and dealt with as moneys expended by such county in permanently improving roads or any part thereof: Provided, such work shall have been done in accordance with plans and specifications approved by the commissioner of highways. Before any payment shall be made by any county, to any such town ship, borough, village or city, the plans and specifications for such work, the work done and the contract price paid therefor, shall be first approved by the commissioner of highways, by order made and filed in his office, a certified copy of which order shall be filed with the county auditor of any such county. That thereafter the county board of any such county shall authorize the county auditor to issue his warrant on the road and bridge fund of such county in the amount so approved by the commissioner of highways to such township, borough, village or city."

This statute is broad enough to cover the case, but the contention of the state is that the constitutional provision which authorized refundment to counties is not broad enough to authorize this legislation. We do not sustain this contention.

Section 1 of article 16, above quoted, provides that the trunk highway system "shall be * constructed by the state." This article was proposed by the Legislature as an amendment to the Constitution by an act approved February 21, 1919. The Legislature, cognizant of the fact that the amendment could not be ratified by the people until November, 1920, and, being desirous of speeding the road building program, incorporated the provisions of section 2, above-quoted, in order to encourage in the meantime, road building by counties. The manifest purpose was that in the event the amendment passed the state should assume the cost of construction of all portions of the system

186 N.W.-44

duties of state concern, was virtually settled in Guilder v. Town of Dayton, 22 Minn. 366. See also Merchants' Nat. Bank v. City of East Grand Forks, 94 Minn. 246, 102 N. W. 703; Associated Schools v. School Dist. No. 83, 122 Minn. 254, 142 N. W. 325, 47 L. R. A. (N. §.) 200; State ex rel. School Dist. No. 44 v. County Board, 126 Minn. 209, 148 N. W. 53. Really this is all that this proceeding directly involves, for all that is asked is that defendant officials be required to do the things essential to payment by the county to the city. But the constitutionality of the portions of the statute which provide for refundment by the state to the county has been fully argued and is incidentally involved and should be decided.

[3] 3. If the Legislature had by previous or by separate legislation made the county liable for expenditures made by villages and cities in carrying out the road building program, and had the county then paid for such expenditures, there would seem no doubt that reimbursement of the county would be within the constitutional power of the Legislature. Under such circumstances it could fairly be said that the county had expended the money paid by it in improving roads. But there is only a technical difference between this form of legislative procedure and the adoption of a statute which in one part requires the county to reimburse the city for expenditures made by the city in carrying out the road building program and in another part of the same act provides that upon such payment by the county it should have reimbursement out of the trunk highway sinking fund. This is in substance what the Legislature has done. Section 2 (h) may not be well worded, but it does in substance make the county liable for disbursements made by one of its villages or cities in carrying out the state road building program, and then gives the county the right of resort to the trunk highway sinking fund to cover said liability. We are of the opinion that this was within the constitutional power of the Legislature.

The allegation of the petition is that the

commissioner of highways refused to file, of described in article 16 of the Constitution the order provided by section 2 (h) "for the of the state of Minnesota, heretofore and sole reason that he asserts that said sub- subsequent to February 1, 1919, shall be division h of section 2, c. 522, Laws 1921, regarded and dealt with as moneys expendis unconstitutional" and "that the board of ed by such county in permanently improv county commissioners and the county audi-ing roads or any part thereof." Putting it tor of Waseca county, Minnesota, refuse in another way, the Legislature defines the to authorize and issue to petitioner an order * because, while conceding and admitting that petitioner is entitled to have said warrant issued ** under the terms of said law, they claim and assert that said law is unconstitutional."

*

*

For purposes of the demurrer, we, of course, take these allegations as true. It is unnecessary to say that the courts do not assume to control the discretion of these officials where discretion is vested in them by law, but if the refusal is on the purely legal ground which is pleaded, performance of the duties imposed upon these officials by the statute may be compelled by manda

mus.

Order reversed.

DIBELL, J. (dissenting). I agree that under article 16 of the Constitution the state may pay for the construction of the normal width of trunk highways through villages and cities. I agree that the Legislature may require a county to improve roads within its limits,

*

clause of the Constitution which provides for the reimbursement of "any county for the money expended by it subsequent to February 1st, 1919, in permanently improving any road herein before specifically described," to mean the reimbursement for "moneys paid out by any county to any township, borough, village or city in reimbursing such township, borough, village or city for so permanently improving roads or any part thereof described in article 16 of the Constitution of the state of Minnesota heretofore and subsequent to February 1, 1919."

Were it not for section 2 (h) of the statute it would not be claimed that counties could be reimbursed out of the highway fund for moneys paid to reimburse townships and villages or other municipalities.

The county has not improved or expended its money upon the highway involved; nor has it reimbursed the city. The Constitution does not authorize the state to reimburse a township or village. It is now sought to reach such a result by letting the county Section 1 of article 16, quoted in the reimburse the municipality and the state reprevailing opinion, establishes "a trunk high-imburse the county from the highway fund. way system" which shall be "located, con- The Legislature gives instances, other than structed, reconstructed and for- those for which the Constitution provides, ever maintained by the state." when money may be taken from the highway Section 2 creates a "trunk highway fund." fund to reimburse for road work. It does This fund "shall be used solely for the pur- this by defining what the Constitution means poses specified in section 1 of this article, by "money expended" in improving a highand when duly authorized by legislative en- way by a county. It is not that the Conactment to reimburse any county for the stitution intended a roundabout reimbursemoney expended by it subsequent to Febru- ment of villages or cities. It is that as ary 1st, 1919, in permanently improving any now viewed, it might well enough or better road hereinbefore specifically described," have done so. etc.

*

*

*

Section 1 of Laws 1921, c. 522, pursues the authority given by section 2 of article 16 of the Constitution and agrees to reimburse counties for moneys expended in permanently improving roads.

Section 2, subds. (a)-(g), provide in detail how the counties shall be reimbursed. Subdivision (h) provides that "the moneys paid out by any county to any township, borough, village or city, in reimbursing such township, borough, village or city for so permanently improving roads or any part there

The meaning of the Constitution is to be found by a fair construction of it. It is not for the Legislature to stipulate anything into it or take anything from it. It is not for the courts to do the same by so-called construction. Neither the legislative nor judicial branch can rightfully undertake to better it.

I think the trial court was right in holding that the Legislature is without authority to reimburse municipalities other than counties out of the trunk highway fund, even by indirection, and I dissent.

(186 N.W.)

that defendants had adverse title to each. FLORANCE v. GOSLIN et al. (No. 22491.) For error in the instructions of the trial (Supreme Court of Minnesota. Feb. 3, 1922.) portion of the land a new trial as to that court upon a question peculiar to the south

(Syllabus by the Court.)

1. Adverse possession 101-Possession of separate tract of uninclosed farm land does not extend rights to adjacent tract, in absence of color of title.

In the absence of color of title the adverse possession of a separate and independent tract of uninclosed farm land by one claiming as owner can have no necessary relation to or extend rights in an adjoining tract of

similar land.

2. Adverse possession 101-Possession of uninclosed land limited to tract actually occupied.

The rule is that the adverse possession in such case, when not clearly otherwise shown, is restrained and limited to the tract actually occupied by the claimant.

3. Adverse possession 101-No limitation of possession to tract actually occupied, where color of title and dominion over larger tract. The rule is different when there is color of title and dominion is exercised over several adjoining parcels forming one tract as a whole.

tract was granted; a new trial being denied as to the special verdicts covering the north portion. Plaintiff appealed.

The substantial question in the case is whether the evidence supports the verdicts so sustained by the trial court. The land formerly was a part of the Chippewa Indian territory, but was ceded to the United States by treaty ratified and approved in 1864. It is naturally adapted to agriculture, and, if cleared of timber and brush, would make rich farm land, capable of producing large annual crops. It contains some timber, much thereof having been cut and sold in years gone by; a large part is covered with brush, a few small tracts of prairie, and some meadow. In 1853 Augustine Goslin, husband of defendant Angelique Goslin and the father of the other defendants, with his wife and children, settled upon lot 2 of the north portion, making such, use thereof as was suited to his habits of life, cutting down and selling wood to passing steamers, then and for a number of years thereafter navigating the adjoining river, cropping a small area,

Appeal from District Court, Kittson Coun- and pasturing cows and horses near and adty; Andrew Grindeland, Judge.

Action by Edward Florance against Angelique Goslin and others. Judgment for defendants. A new trial was denied, and plaintiff appeals. Reversed, and new trial granted.

R. V. Blethen, of Hallock, M. J. Daly, of Perham, Chas. Loring, of Crookston, and G. A. Youngquist, of St. Paul, for appellant.

John Jenswold and John D. Jenswold, both of Duluth, for respondent.

jacent to his dwelling, all within the boundaries of lot 2. But, no rights are or can be predicated upon that settlement, and it may be passed without further mention. The land was ceded to the United States in 1864, and was patented by the government to plaintiff's grantors, the north portion in 1881, and the south portion in 1882, and in accord

subsequent to that time under claim of ownership.

ance with the subdivisions contained in each. Whatever rights defendants have to the land, or any part of it, originated subsequent to the time it was so patented. Baker BROWN, C. J. The land involved in this v. Berg, 138 Minn. 109, 164 N. W. 588. It is action is situated in the extreme northwest claimed that defendants remained in the corner of the state, in Kittson county, bound-actual possession of all the land for 15 years ed on the north by Canada and on the west by the Red River of the North. It is composed of several separate subdivisions, as shown by the government survey, and contains 238 acres. For convenience of reference the parties on the argument divided it by a line extending east and west substantially through the center, describing the tracts thus set apart as the north and south portions. The north portion is made up of government lots 1 and 2, and the north half of the southeast quarter of section 26; the south portion contains government lot 3 and the south half of the southeast quarter of the same section. Plaintiff holds the patent title to all the land, while defendants claim by adverse possession. The issue thus raised was submitted to a jury, in the form of six special questions covering separately each subdivision of the land, and the jury found

Defendants are all mixed-blood Indians, and, though belonging to and sustaining no particular tribal relations with full-bloods, they possessed in a large measure the Indian habits and customs. They were not agriculturists, particularly the senior Goslin; he was a hunter, devoting in appropriate seasons considerable time and energy to hunting buffalo. The family lived on the land after it was so patented to plaintiff's grantors until 1894, when the senior Goslin died; that was prior to the expiration of the necessary 15 years of occupancy. The widow and some of the other members of the family remained in possession, it is claimed, until 1897, when the widow moved to a home on the south portion of the land, subsequently moving from the land altogether, though one or

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

two of the children, grown adults, may sub-1 his occupancy, though as urged by counsel sequently have remained thereon. The farm- he may have thought he had such title. But, ing operations during this possession were whatever his thoughts in the premises, he comparatively of a light nature. Small took no steps other than as heretofore stated tracts of a few acres were occasionally to definitely lay claim to any particular cropped, the wild hay cut and used as feed part of the land, other than that actually for stock, but there was no attempt to devote | occupied by him as his dwelling and the the entire tract or any considerable portion small cultivated outlying tracts. His occuthereof to continuous farming operations.pancy and use of the north portion was The greater part remained in its natural never, so far as the record discloses, quesstate, covered with brush and timber, and un- tioned by the fee owner, until the commencecultivated. It was not inclosed by fence, ment of this action. His right to the posnor other method adopted to indicate to session and use of the south portion was persons who might have an interest in the challenged by an ejectment suit subsequent land a claim of ownership to the whole or to the removal of the family to that part of to any particular part or subdivision other the land. But as that tract is not here inthan that actually occupied. A fence ex- volved that suit may be passed without tending from the north boundary diagonally further statement or comment. to the river to the southwest, inclosed the dwelling situated on lot 2, a part of lot 1, and the west end of the north half of the southeast quarter, all within the north portion of the land. But that was not constructed to designate the limits of Goslin's claim, but to keep his cattle from straying to the east upon thé lands of others.

Defendants paid no taxes; whatever taxes were levied against the land subsequent to the date of the patents were paid by the predecessors of plaintiff in interest. Plaintiff paid them subsequent to the year 1897. There was a claim that Goslin paid them for four successive years prior to 1897. But no competent evidence was presented in substantiation of the claim. No tax receipts were produced, nor such payments disclosed by any tax record offered in evidence. Nor does it appear for what years the payments were made, if at all, nor upon what part or portion of the land the tax burden was thus raised. It was further claimed that Goslin had been advised not to pay the taxes until the government gave him title to the land, and that was presented as an excuse for his failure to meet subsequent payments. But Goslin and the person claimed to have so advised him are both dead, and the declarations by them to the effect stated were incompetent, coming through an interested party to the action. It is also claimed that Goslin applied to locate the land or a part thereof under Indian scrip, but the evidence in support of the claim is quite shadowy and insufficient. He did file a pre-emption entry on the south portion of the land, lot 3 and the south half of the southeast quarter, on some date in 1881, but the entry was canceled by the government in 1883 as erroneously allowed by the local land officers; the down payment was later returned to his heirs. But that entry so made and canceled is of no special importance, except as it shows an effort by Goslin to acquire title to the south portion of the land. We are here concerned with the north portion only. Goslin therefore had no color of title to the land

We need not go further into the facts; it would serve no useful purpose. What has been said, barring some probable minor inaccuracies, discloses the general state of the record, and of the elements controlling the rights of the parties, from which we conclude that enough is not shown to justify the conclusion of the jury to the effect that defendants have acquired title by their possession and occupancy to the whole of this tract of 238 acres of land. We do not say nor attempt to hold that they may not, on the present showing, lay legal claim to some particular subdivision or part of either the north or south portions, unless their rights in the south portion have been lost by the deeds of conveyance involved in the action as to that part of the land. But we do hold that the evidence found in the present record will not justify their claim to the whole of either. What the situation may be on a new trial must be left to the consideration of the court below when the evidence is again presented.

[1-3] In reaching this conclusion we apply the generally accepted doctrine that the adverse possession under claim of ownership of one separate and independent tract or parcel of uninclosed farm land can, without color of title, have no necessary relation to or extend rights in adjoining tracts of similar land. The rule is that the adverse possession in such case is by law, when not clearly otherwise shown, restrained and limited to the tract or parcel actually occupied by the claimant. Barber v. Robinson, 78 Minn. 193, 80 N. W. 968; Sage v. Larson, 69 Minn. 122, 71 N. W. 923; Bazille v. Murray, 40 Minn. 48, 41 N. W. 238; Cain v. Highland Co., 134. Minn. 430, 159 N. W. 830, 872. The rule is different where there is color of title and claim is made to several adjoining subdivisions over which the claimant exercises dominion and control as a whole. 1 Dunnell's Dig. p. 30.

Our conclusion, therefore, is that for the insufficiency of the evidence to sustain the verdicts returned by the jury there should

(186 N.W.)

unnecessary to consider the assignments M. W. Brewster, of Wells, and Albert R. challenging the rulings of the trial court in Allen, of Fairmont, for appellant. the admission or exclusion of evidence. If there were errors in this respect, they are not likely to occur on another trial, and we pass them without further remark.

The motion to vacate the judgment states trict court practice, and was submitted upon no grounds thereof, as required by the disaffidavits of the parties, and of others in cor5. Insufficiency of showing to justify vacation roboration of each. The court made a genof divorce decree.

Appeal from District Court, Rice County; fault judgment dissolving the marriage is

awarded to either party, and the one so procuring that relief subsequently enters into Suit by Samuel D. Walters against Jennie new marriage relations, no relief can be had J. Walters. From an order vacating a judg- from the judgment under the mistakes and ment of divorce and granting defendant the amendment statute. The judgment where right to answer, plaintiff appeals. Reversed. the antecedent proceedings are regular is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes