File No. 5220 | S.D. | Feb 24, 1925
Lead Opinion
Plaintiffs petitioned the town board of defendant town to exclude lots I, 2, and 3 of section 7 from the
We are of the opinion that the evidence was insufficient to- sustain the judgment of exclusion. The town was incorporated in 1909. It has 50 grown people; not, as found by the trial court, less than 50 population. The corporation covers about 400 acres, and consists of the southeast quarter of section 7, upon which is the platted portion; the east half of the southwest -quarter of section 7, and lots 1, 2, and 3 of section 7. Lots 1 and 2 would be the northeast fractional quarter of section 7, and lot 3 would be the fractional east half of the northwest quarter of section 7. Through the center of said 6oo-foot strip, which was excepted from the petition, runs a highway 66 feet wide, bought, paid for, and maintained by appellant, which road clearly benefits respondents’ land. The eighth finding of the. court was contrary to the evidence, wherein it was found that no new buildings had been erected in 10 years. There is no evidence to sustain the thirteenth finding, wherein the court found that respondents received no benefit by reason of being within the town limits, except the hare conclusions of the witnesses, and the trial court should have sustained the objections to such testimony because they called for the conclusions of the witnesses. The proposed limits would be extremely irregular in outline. If the present petition should be granted, then all of the land south of the railroad should also be excluded. The burden is on the petitioners to show good reasons for the exclusion. The presumption is with existing conditions. From the evidence we are of the opinion that respondents’ lands are benefited because of being within the town limits, and that their exclusion would be detrimental to appellant town. Johnson v. Town of Castlewood, 40 S. D. 493, 168 N.W. 124" court="S.D." date_filed="1918-06-25" href="https://app.midpage.ai/document/johnson-v-incorporated-town-of-castlewood-6689606?utm_source=webapp" opinion_id="6689606">168 N. W. 124; Thiel v. City of Alexandria, 41 S. D. 427, 171 N.W. 209" court="S.D." date_filed="1919-03-12" href="https://app.midpage.ai/document/thiel-v-city-of-alexandria-6689785?utm_source=webapp" opinion_id="6689785">171 N. W. 209; Weiland v. City of Ashton, 17 S. D. 621, 98 N.W. 87" court="S.D." date_filed="1904-02-03" href="https://app.midpage.ai/document/weiland-v-city-of-ashton-6686392?utm_source=webapp" opinion_id="6686392">98 N. W. 87; Qualey v. City of Brookings, 18 S. D. 581, 101 N.W. 713" court="S.D." date_filed="1904-12-07" href="https://app.midpage.ai/document/qualey-v-city-of-brookings-6686504?utm_source=webapp" opinion_id="6686504">101 N. W. 713; Pelletier v. City of Ashton, 12 S. D. 366, 81 N.W. 735" court="S.D." date_filed="1900-01-10" href="https://app.midpage.ai/document/pelletier-v-city-of-ashton-6685527?utm_source=webapp" opinion_id="6685527">81 N. W. 735; Klosterman v. City of Elkton, 46 S. D.
Lor these reasons the judgment and order appealed from are reversed. .
Dissenting Opinion
I think the judgment of the trial court is correct, and see no. good reason for a reversal; therefore I dissent.