25 S.D. 314 | S.D. | 1910
This action was instituted by an organized' civil township to enjoin the defendant from obstructing an alleged highway within its boundaries, extending' in a southwesterly direction parallel with the Chicago' & Northwestern. Railroad right of way, from the section line highway between sections 22 and 27 to the section line highway between sections 27 and 28. So far as material to this appeal the trial court found the facts to be substantially as follows: (1) That the plaintiff is one of the organized civil townships of Turner county; (2) that Sarah A. Robinson, formerly Sarah A. Hammond, acquired title to the E. % of the N. W. % of section 27 in the plaintiff township, by patent from the United States, March 20, 1872; that she continued to own the same until August 8, 1890, when 'she deeded it to William Robinson, to whom she was married prior to the last-mentioned date; (3) that William Robinson owned the northwest quarter of sec
It is contended, however, that, whereas the land affected embraced a homestead, there could be no- valid dedication without the assent of Robinson’s wife, and 'that the -evidence wa-s insufficient -to justify -the finding that she did -assent as stated in the tenth paragraph of -the circuit court’s -decision. The contention is not tenable. Assuming the record -discloses the fact that the Robinson homestead was affected, and that the wife’s assent was- essential to a valid dedication, two extremely doubtful propositions, still the decision of the learned circuit court should not be reversed. The findings of a trial court on disputed questions of fact are always presumptively right, and though, under our statute, not as controlling upon this court as the verdict of a jury, must -stand, unless the evidence clearly preponderates against -them. Feldman v. Trumbower, 7 S. D. 408, 64 N. W. 189; Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4; Reid v. Kellogg, 8 S. D. 596, 67 N. W. 687; Webster v. White, 8 S. D. 479, 66 N. W. 1145; McKenna v. Whittaker, 9 S. D. 442, 69 N. W. 587; Hulst v. Association,
Though there was testimony tending to prove that both Mr. and Mr-s. William Robinson may have objected to -the highway when its location- was first proposed, and the court found that the wife did not assent to its use by the public while title to the E. % of -the N. W. % of section 27 was in her, there was not a scintilla of evidence tending to- 'show, or from which it reasonably might be inferred, that this husband and wife were not acting in perfect harmony during the entire period embraced by the -tenth finding. During that time -the wife was living in the family -dwelling in plain view of the alleged highway, and 'knew of its daily use- by the public without manifesting the slightest objection to -such use. She must have known of the -dedication by her husband; 'she must have known that the public was expending labor and money maintaining the highway; and she must -have known the public was relying upon the acts of her husband. Such conduct, under such circumstances, clearly justified tire conclusion that she assented to the dedication. “Husband -and wife contract toward each other obligations of -mutual respect, fidelity, and suj>port.” Rev. Civ. Code, § 94. In absence of evidence to the contrary, it should be- assumed that they act in all important affairs affecting their homestead with due regard to the rights, opinions, and desires of each other. It being conceded that the husband assented to this highway, he having title to the land affected, the assent of the wife should be inferred in absence of any evidence or circumstance giving rise to the inference that the husband acted in disregard of Iris marital obligations. There is no merit in the suggestion that the wife’s testimony should have been procured by the plaintiff. Defendant was obstructing a highway dedicated by the owner of the land, affected, which had been traveled continuously for 18 years, the public us-e of which was .known to him when he purchased his land. If such dedication and continued use were unlawful for the sole reason that the former owner’s wife had not consented to the creation of an easement affecting her -homestead rights, it was incumbent upon him to- -sustain his unenviable position by all available evidence
The judgment and order appealed from are affirmed.