28 S.D. 118 | S.D. | 1911
Action for an injunction restraining the construction of a system of sewers. Plaintiff appeals from an order of the circuit court denying her motion for a temporary injunction. The facts before the trial court are stated in the record substantially as follows: The city of Sioux Falls is situated on the banks of the Big Sioux river; the major portion of the city, and nearly the whole business district, being situated upon the west bank of the river. At a distance varying from a few hundred feet to a mile west of the river is a range of bluffs, west of which the ground declines toward the Big Sioux river, which makes a detour around the city a mile or so west of the city limits. The topography of that portion of the city is such that the same sewers cannot drain property, both east and west of the range of bluffs. The-main business section of the city and the greater part of the most valuable residence district are situated between the river and the range of bluffs. Plaintiff is the owner of three lots in the main business district, upon two of which are improvements of considerable value. Neither of these lots can be drained into any one of the proposed sewers. The commissioners of the city of Sioux Falls, under the provisions of chapter no, Laws 1909, established a sewerage district known as the “West Side District,” which comprised that portion of the city lying west of the Big Sioux river. Plans were .adopted under which it was proposed to construct several distinct sewers within boundaries established as a sewer district. The most extensive is a main sewer about six miles in length, commencing in the southern part of the city, running in a northerly direction west of the range of bluffs, to the northern part of the city, and emptying into the river through a tunnel under the bluffs. This main sewer is not connected with any of
The language of these various provisions of the act in every instance makes it clear to our minds that only one main or trunk sewer is authorized to be constructed within a district. This view is strongly reinforced by the language used in the decisions of courts of high authority. In the case of Hanscom v. City of Omaha, 11 Neb. 37, 7 N. W. 739, a case wherein many of its features closely resemble the case at bar, that court said: “But it is said that the mayor and council had authority to form suitable sewerage districts, and that, having formed the same, their judgment cannot be reviewed in this action. The answer to these objections may be found in the definition of ‘sewer.’ Webster defines a sewer to be ‘a drain or passage to convey water or filth under ground; subterraneous canal, particularly in cities.’ “A sewer district, therefore, should be composed of such territory as could be drained directly by the sewer. It would not be necessary to construct the entire sewer at one time, but in such case the cost of construction could not be levied upon property not specially benefited. * * * The power to form a sewer district does not
The order appealed from is reversed, and the trial court directed to grant the relief prayed for.