220 N.W. 494 | S.D. | 1928
Appellants petitioned respondent city of Alexandria to exclude from the incorporated limits thereof the N. E. yi of section 9. Their petition being rejected, appellants petitioned the circuit -court, which also -denied the petition; said judgment being based upon an agreed statement of facts. This appeal is from that judgment.
The land sought to be excluded lies immediately north of the quarter section which was the subject of the opinion of this court in Thiel v. City of Alexandria, 41 S. D. 427, 171 N. W. 209. Many of the reasons- therein stated -as justifying the exclusion of the Thiel land would apply with equal force to at least part of the land herein sought to be excluded, assuming conditions -as- to sanitary and police control, -direction of growth, prospective need or -demand for municipal purposes to be the same. However, neither this court nor the trial court coul-d- exclude part of the territory sought to be excluded. Cole v. City of Watertown, 34 S. D. 69, 147 N. W. 91. Moreover, as to part of this land, particularly appellant railway company’s right of way, which extends diagonally in a north-westerly direction across the quarter sought to be excluded, as well as the land lying north and' east of such right of way, the physical facts differ materially from those of the'Thiel Case. The agreed facts herein show that this part of the land
Inasmuch as the burden is on the petitioners to show good reasons for the exclusion, the presumption being with existing conditions, as held by this court in La Come v. Dolton, 48 S. D. 122, 202 N. W. 389, we are of the opinion that the trial court did not err in denying appellants’ petition. The judgment and order appealed from are therefore affirmed.