12 S.D. 515 | S.D. | 1900
This was an action to recover a portion of a street in the city of Deadwood, known as ‘‘Seiver Street,” alleged to be unlawfully withheld by the defendant. The findings and judgment were in favpr of the plaintiff, and the defendant appealed.
The principal question involved in this case arises upon the court’.-! findings .and conclusions of law, the material portions of which are as follows: “That the premises in controversy in this action and described in the complaint herewith are a portion of, and included within the exterior limits of, mineral claim or lot 152, and that a patent for said mineral claim or lot 152 was issued by the United States to Michael Early on the 30th day of June, 1880. Third, That at the time of the issuance of the said patent, and long prior thereto, the said Michael Early was the sole and absolute owner and in possession of the said mineral claim, and while the sole and exclusive owner and in possession thereof, and long before the
The learned counsel for appellant contends that Early’s patent dates back to January 26, 1876, when he recorded his location notice in the district records. But this contention i§ not sustained by the supreme court of the United States. In the Noonan Case, supra, it was distinctly held that the locator’s right could only date from February 28, 1877. Assuming, therefore, that Early was in possession of his placer claim on February 28th, the public was also rightfully using the streets and alleys and in possession of the same for highway purposes, with Early’s consent and the cousent of the United States. It is true, the right of the public was only an easement, and was not inconsistent with Early’s right to acquire the fee subject to this easement in the public, but it was nevertheless a right of which the public could not be deprived by any subsequent acts of Early or his grantees. We are of the opinion that the acts of Early in making the deed to. Boughton, coupled with his failure to object to the use of the street by the public clearly shows an indication to dedicate the easement in such streets and alleys to the public, and that the court’s finding was fully justified by the evidence in the record, as acceptance by the public by actual use is sufficient to constitute a legal acceptance. Maywood Co. v. Village of Mayfield, 140 Ill. 216, 29 N. E. 704. While it was not proven that Early did in fact plat his land into lots and blocks,leaving streets and alleys,