25 S.D. 21 | S.D. | 1910
This action was brought by the plaintiff corporation to enjoin the defendant from obstructing a piece of land 12 by 25 feet in dimensions, which said piece or tract of land, it was claimed by the plaintiff, was a part of a public alley within plaintiff’s corporate limits. At the time of commencement of this action, the plaintiff procured a restraining order, together with an order to show cause why an jnjunction pendente lite should not issue. Defendant objected to the application for injunction and, as ground for such objection, maintained that the facts set forth in the complaint and affidavit were insufficient to justify the relief sought. The objection was overruled, and defendant excepted. Upon the trial defendant objected to the receipt of any evidence under the complaint for the like reason, which objection was overruled and exception taken. The trial being had before a jury, special findings were reported by such jury, and afterwards the court made its findings of fact and conclusions of law. A decree having been entered in favor of the plaintiff, and a motion for new trial having been denied, the defendant has appealed to this court.
Upon this appeal he has assigned the above-mentioned rulings, of the court as error; but we are clearly of the opinion that there is no merit in this assignment. Appellant has also' assigned as error certain rulings of the court pertaining to the admission of evidence; but we are satisfied .that there was no error ■ in such rulings, and, even if there had been, the evidence received was no.t of a nature that would warrant a reversal.
In order to make more clear the facts as brought out by the testimony, we have prepared a plat of the block of land wherein is situated the tract involved herein; such block of land being known as “block 5” and being bounded on the north by street known as “Dakota Ave.” and on the east by “Oak St.”
It will be observed that a public alley running east and west cuts the block in two, and that from this public alley another public alley extends south to the south side of the block. It
It is the claim of the appellant that the reservations -in such deeds did not indicate an intent to, and did not, convey to the public a right of way over the strip in question. While there might be some doubt as to whether such deeds actually conveyed to the public the entire strip from Dakota avenue to the alley south of these lots, owing to the wording of the reservation in the last deed, yet it appears to us that such deeds, especially when taken in connection with the .other facts shown, clearly prove an intent on the part of Johnson to dedicate such strip for public use; and there appears an acceptance of such strip by the corporation, through the use thereof by the public, prior to the date when, defendant acquired his title. Examining carefully these deeds, it is apparent that the deed through which defendant claims in no manner attempted to reserve a private right of way. True, it reads that the reservation is to Johnson, and one can
We must therefore conclude that Johnson either had granted, or supposed he had granted, such right of way by some instrument not produced in evidence, and it clearly shows, regardless of whether Johnson had ever actually made any such' prior grant, that, at this time, he intended to reserve this strip as a public alley and not pass it by such deed. Remembering that there would ■still be 23 feet between -the tract conveyed to Pierce and the west end of the 117-foot tract, the jury clearly had a right to presume that it was the intent of Johnson not only to dedicate the 117-foot strip, but to dedicate sufficient to connect with the tract he had conveyed to Pierce, as it will not be presumed -that iL was his intent to dedicate, for pxxblic use, a mere cul-de-sac. City of Eureka v. Armstrong, 83 Cal. 623, 22 Pac. 928, 23 Pac. 1085. Furthermore, in the last deed, Johnson reserved from the effect thereof the said 12-foot strip connecting the two strips in the other deeds referred to, and it will be noted that this reservation was made in favor of himself, his heirs and assigns. He had already conveyed all the rest of said 5 lots, and certainly this reservatioxi coxxld not have been intended for his own use. Neither could he by the term “assigns” have intended the grantee in sxxch deed, as such reservation was a limitation against such grantee.
It seems to be the universal rule of law that no particular form of dedication is necessary, and that, if the same is in writing, no particular wording is necessary. 12 Cyc. 453. Furthermore, it has been held by this court, in the case of Mason v. City of Sioux Falls, 2 S. D. 640, 51 N. W. 770, 39 Am. St. Rep. 802, that the intent to dedicate may be shown by the use of the land in question. It is therefore clear that, considering the reservations in the deeds, the situation of these lots, the fact that Johnson had changed the platting, that to make this tract valuable for business purposes an alley at the rear of the tracts sold was important, that the south -end of such strip- would connect with the public alley, and the n-o-rth connecting with a street opposite -the end of another public street, there was ample to justify the jury and court in finding an intent on the part of Johnson to dedicate the strip for a public alley.
It is claimed by the appellant that, even conceding that Johnson intended to dedicate this strip as a public alley, it never became such a public alley because it was never accepted as such by the corporate authorities; it being the claim of appellant that, inasmuch as the charter of respondent city vested its council with the power -of laying out streets and alleys, such power was exclusive, and there could not be an acceptance through public user. We are unable to find anything in such charter that in any manner restricts the power of the public to- a-ccept by user a dedication for public way. It is true that the charter of said city gives its council power to- lay out streets an-d alleys, a power that is ordinarily found- in -charters; but we -can see no- reason why this should be held to exclude the power otherwise resting in the public. It is true the decisions o-f the courts are not uniform on this proposition, there being states where, even without any statute, it is held that there cann-ot be acceptance by mere user; •but th-e great weight of authority is to- the contrary. The authorities on this question will be found collected in the notes to
As to how much use of a way is necessary to denote an acceptance of a public way will depend upon the facts in each case. If the way is one which, from its nature, might be extensively used, greater use will be required to show an acceptance. If the proof of intent to dedicate should rest largely upon the fact of public use, then such public use, being necessary to prove not only dedication but acceptance, must be greater than where the intent to dedicate is clearly shown by evidence other than of user by the public. 13 Cyc. 465. In this case, where there was evidence sufficient to show intent, even excluding all the -evidence of user, and where it was shown that for some 18 or 19 years -this tract had been openly used by the public, there was am-ple to prove an acceptance prior to the time defendant received his deed; and, furthermore, the obstruction temporarily .placed by the defendant — when <w-e consider the fact that a way was left •through which the public -continued to use the remainder of this strip, an-d the further fact that -this obstruction was merely -tem
The findings of the jury and the court, together with the con- • elusions of the court thereon, are fully justified under the evidence in this case.
The judgment of the trial court and the order denying' a new trial are affirmed.