195 N.W. 498 | S.D. | 1923
Lead Opinion
This action was brought to exclude from1 the corporate limits of the city of Clear Lake the N. W. 1/2 115-49, containing 1156 acres.
Defendant answered: That plaintiff was the owner of out-lots 2 and 3 in section 22, consisting of 2jd> acres bounding the premises above described on the east. That plaintiff had a fine residence on these outlots at the. corner of Fifth and Ninth streets, in said city, close to the closely built up portions thereof. That the sidewalks of the city lead up to said outlots. That the city has constructed a cross walk across Ninth street leading to plaintiff’s residence. That plaintiff’s residence is only four blocks from the county courthouse and city school'house. That the city has a water, seiwer, and electric light system and plaintiff’s residence is connected with and has the benefit of each of them. That plaintiff has a large barn and outbuildings a few rods west of his dwelling house on the land sought to be excluded, and within reach of the city hydrant. That the city- maintáins a fire department, chemical engine, hose cart, auto truck, and in case of fire defendant would be entitled to receive and would receive the services of the fire department. That the city has a public library, a city hall costing $10,000, sewer system costing about $28,000, new high school costing about $60,000. The city is bonded for such improvements in the sum of $40,000. That all of above debts were contracted while plaintiff was a resident and elector of the; city, and during all said time plaintiff’s premises have been within said city; and plaintiff while much of said bonded debt was being contracted, was a member of the city council. That Clear Lake is a growing city, and the permanent county seat of Deuel county. That a courthouse has been recently erected in said city at a cost of $135,000, which is only about five blocks from the eastern boundary of the land sought to be excluded.
This case was tried to the court. The evidence clearly proved substantially all the allegations set forth in defendant’s answer, and established the further fact that the city had a sinking fund of $12,324.23, a total consolidated city tax of 40.4 mills, and that the total consolidated tax, outside the city, but within the school district, was 27.7 mills; that plaintiff’s tax on this farm for 1920*
In Johnson v. Incorporated Town of Castlewood, 40 S. D. 493, 168 N. W. 124, this court -held that the evidence did not show any injustice to the town by excluding plaintiff’s land, and no benefit to petitioner by being included in the corporation; that no reason of any kind appeared for keeping plaintiff’s land in the corporation except the revenue derived by it from taxation.
In Thiel v. Alexandria, 41 S. D. 427, 171 N. W. 209, this court held there was no claim' by the city that any of the public utilities of the city- wiere of any benefit to the land; that the taxes on plaintiff’s land inside the corporation were practically four times as great as- land of like character outside- the corporation, and there was no reason shown why defendant desired to keep plaintiff’s land in the corporation except the revenue it derived from taxation.
In Klosterman v. City of Elkton (S. D.), 191 N. W. 341, which 'was decided December V2, 1922, more than four months after the learned trial court announced its decision in the instant case, ■ we said:
“In our opinion, if this tract is to be segregated, then all portions of the city that do not contain platted lots as shown by the above plat are likewise entitled to be excluded. In our opinion the showing made by the city in this case entitled it to retain the lands of plaintiff within the city limits. This case shows facts much1 more favorable to the retention of the land -within the city limits than did Thiel v. -City of Alexandria, supra.”
It will be observed that the decision in Klosterman v. City of Ellcton limited and more closely defined the rules relating to exclusion of property from a municipal corporation. If that case
It is so ordered.
Dissenting Opinion
(dissenting). The judgment of the trial court is presumed to be correct. This court should not in any manner encroach upon the duties and rights of the trial judge. He is entitled to his opinions, and his decision imports verity, and ought to stand unless errors of law are clearly shown. He should be free to draw his own inferences on the evidence, on the, credibility of the witnesses, and on his own inspection of the property sought
In my judgment the decision of the lower court should be affirmed.
Note. — Reported in 195 N. W. 498. See, Headnote (1), American Key-Numbered Digest, Evidence, Key-No. 18, 23 C. J. Sec. 1993 (1924 Anno.); (2) Appeal and error, Key-No. 842(1), 4 C. J. Sec. 2537; (3) Municipal corporations, Key-No. 30, 28 Cyc. 196 (1924 Anno.).
On questions relating to the power of city to extend exercise of taxing power beyond corporate limits, see notes in 15’ L. R. A. (N. S.) 294 and L. R. A. 1918C, 528.