20 S.D. 154 | S.D. | 1905
This is an action in equity by the plaintiff to restrain the defendant from placing and maintaining telephone poles in front of his residence, in the city of Sioux Ralls. Findings and judgment being in favor of the defendant, the plaintiff has appealed.
The case was formerly before this court on an appeal from an order dissolving the temporary injunction, and is reported in 17 S. D. 362, 97 N. W. 3, and the facts are fully stated therein. On the remittitur going down from this court, the case was tried upon the merits, and the material findings of the court necessary to be considered on this appeal only will be given. Findings 1, 2, 3, 4, and 5, being formal matters, and practically copies of the allegations of the complaint admitted by the answer, are omitted. Findings 6, 7, and 8 are copies of the ordinances of the city of Sioux Falls, which were set forth in the answer and the existence of which was admitted by the plaintiff. The other findings of the court, from 9 to 15, inclusive, are in substance as follows: That the defendant erected and constructed its poles and its wires and performed all the acts and things in connection therewith in the construction of its telephone system and plant in accordance with the terms and in the manner prescribed by the ordinances of said city; that said defendant did not carelessly or negligently construct or erect its said telephone poles and plant, and that the operation and maintenance of the same does not cause unnecessary injury or inconvenience to the said plaintiff or any injury to his property; that plaintiff’s lots and the street'have been so laid out that there exists in front of said premises a five-foot sidewalk, and between the said sidewalk and the traveled part of the street is a parking about 12 feet in width, which parking extends from the sidewalk to the gutter; that the said plaintiff under th.e ordinance of said city, in the parking upon the land hereinbefore described, and within 12 feet of the line of the street, planted a number of valuable shade and ornamental trees, and made and kept in order the said park or grass plat between the said sidewalk and curbing ,thereby rendering the aforesaid property more valuable and increasing its usefulness and advantage generally; that after said plaintiff had made the said improvements the said defendant did, under and 'in pursuance of the ordinance of said city,
The appellant excepted to all the findings of the count above
While it is true there was some conflict in the evidence, we are inclined to take the view that no finding of the court is in conflict with the preponderance of the evidence. While the plaintiff, as a witness in his own behalf, claimed that his property was more or less damaged by the erection of the telephone pole in the corner of his parking, he fails to give any particular damage which he or his property have sustained thereby, and he only states generally that in his opinion his property was rendered less valuable by reason of the erection of this pole and wires in front of the same. The witnesses on the part of the defendant clearly competent stated facts showing that neither the plaintiff nor his property sustained any damage or injury by reason of the erection of defendant’s telephone system. ■
The right of the defendant to construct its telephone system and erect the poles for that purpose, subject to the qualifications that the right must be exercised in such a manner as not to cause an unnecessary injury or inconvenience to property owners, was decided by
It is further contended by the plaintiff that the court should have found certain other facts proposed by the plaintiff, but these proposed findings were either included in the findings of the court as made, presented immaterial matter, or were not supported by the evidence.
Finding no error in the record, the judgment of the circuit court and order denying a new trial are affirmed.