9 S.D. 126 | S.D. | 1896
This was an action to restrain the defendants, as township officers, from opening a highway on a section line as established by the county surveyor in accordance with the original government field notes of -the original survey. The findings and judgment were in favor of the defendants and the plaintiff appeals.
Appellant does not question the correctness of the county surveyor’s survey as not having been made in conformity with the original government field notes, but he contends that the government mounds, established by the government surveyor to mark the easterly boundary of the quarter section in controversy, were placed from 20 to 40 rods further to the east than the line as surveyed and established by the county surveyor by his official survey; and he contends that the mounds so placed by the government surveyor are controlling, as determining the true boundary of the quarter section. This last proposition is fully sustained by the decisions of this court, and when the location of the government mounds as established by the government surveyor is ascertained, the line as indicated by such mounds must prevail. The question as to where the mounds made by the government surveyor at the time of the original survey were in fact placed is one purely of fact, and, unless there is a clear preponderance of the evidence against the findings of the trial court, its findings will not be disturbed. The evidence in this case is voluminous and conflicting, and af
Appellant further contends that, a section line road having been established along the section line in controversy in 1871, the power of the board to open up the section line road was ex
Appellant further contends in this court that, plaintiff’s grantor having made his location early in July, 1866, and the act of congress granting the right of way for highways over the public domain not having been passed until July 26, 1866, the plaintiff’s right is superior to the claims of the public. But, conceding that there was evidence that plaintiff’s grantor made a valid location in 1866, the question presented is not raised by the pleadings nor in any other manner in the court below, and cannot, therefore, be considered by this court. One of the cardinal rules of appellate procedure requires that questions of which a review is sought shall first be appropriately brought before the trial court for decision. Elliott, App. Proc. §§ 489, 490. In Vose v. Cockcroft, 44 N. Y. 415, it was sought to raise, for the first time in the case, in the court of appeals, the question of the constitutionality of a law. It was refused, and the court of appeals said: “Under these authorities it is clear that the unconstitutionality of the act under which the bond was given was capable of being waived by the obligor. By failing to raise it or present it in any form for the consideration of the court below, he waived it as effectually as he could have done by express stipulation. There is no proceeding known, in a civil case, by which questions can be presented for review in the court of appeals which have not been presented fo the court below and there decided, although the facts upon which they might have been presented sufficiently appear.” Codd v. Rathbone, 19 N. Y. 37; Graham v. Nowlin, 54 Ind. 389; Walker v. Owen, 79 Mo. 563; Garland v. Wholebau, 20 Iowa 271.
There were numerous errors of law assigned in the admission and exclusion of evidence, but, as they are not discussed in appellant’s brief, they will not be considered. The judgment of the circuit court is affirmed. '