11 S.D. 116 | S.D. | 1898
Plaintiff occupied the first story and basement of a building situated at the corner of two streets in the city of Dell Rapids. The building was owned by one Cooley, who was the owner in fee simple of the lots upon which it stands. When it was erected, an area was constructed in the street,
It is contended by defendant that upon the undisputed evidence, notwithstanding the verdict, the plaintiff cannot recov-' er, for the reason that no injury could have resulted from defendant’s negligence if there had been no area in the street; that one who makes or occupies such an area does so at his peril; and that the city is not required to recognize its existence in making or maintaining any street improvements. Manifestly, the rights and duties of one who owns the soil to the
It follows that plaintiff cannot be held to have contributed to the injury by having merely occupied the area,- and it is entitled to recover, if the city was negligent, provided the area was properly constructed and in proper repair when the injury occurred. As to what constitutes a proper construction and condition of such’ an area will depend upon the facts of each particular case. Undoubtedly, a city has the right to invade the limits of an area for , the purpose of constructing sewers, laying gas or water mains, or using the entire street for any usual public improvement; but so long as such an area is not invaded by the necessities of the public, it is the duty of the city to recognize the rights of the private proprietor, and exerr cise ordinary care in making and maintining its improvements. The owner of the area and the city must each exercise ordinary care in the enforcement of their respective rights, and whether or not they have done so will depend upon the facts and circumstances of each particular case. Possibly, in this action, the mutual rights and obligations of the contending par