18 S.D. 581 | S.D. | 1904
"This is an appeal by the defendants from a judgment of the circuit court of Brookings county excluding a portion of the territory of the present city of Brookings from the said city. The city of Brookings was incorporated under a special act of the territorial legislature of Dakota.approved March 9, 1883, embracing a territory of nine square miles. In March, 1901, a petition was filed with the city council by parties representing more than three-fourths of the legal voters residing in the territory sought to be excluded, and by the owners of more than three-fourths in value of the property within such territory, praying that the same be excluded from said city. The city council denied the application of the petitioners, and thereupon the same was presented to the circuit court, with a statement of the necessary facts to give the court jurisdiction of the same. A trial was had by the court without a jury, and findings of fact were made and judgment rendered in favor of the plaintiffs.. The territory sought to be excluded embraces nearly two-thirds of the town site of Brookings as it existed at the time of the application.
At the conclusion of the evidence the defendants presented findings of fact, of which, among others, the following were rejected by the court: The court finds: “That said City has been steadily increasing in [the] size of the populated area and improvements. That in the year 1897 the permanent improvéments were over $50,000; in the year 1899 they were about $10,800; in 1900 they were about $152,000, consisting princi
It is further contended by the defendants that the court erred in excluding much of the evidence offered on the part of
Our attention has been called to the case of Pelletier v. Ashton, 12 S. D. 366, 81 N. W. 735, in which this court sustained the judgment of the court below permitting -the segregation of a portion of that incorporated town, but the facts in that case were entirely dissimilar to the facts in the case at bar. In that case a small town of about 200 inhabitants, which seemed to .be diminishing rather than increasing in size, and which had only about 72 acres platted, had within its incorporated limits, miles away from the settled portion of the town, a farming section,, which the petitioners sought to have excluded from the city limits. No special reasons were shown why injustice would be done to the citizens within the limits of the town by the exclusion of the territory, except, perhaps, the fact that a limited number of bonds had been issued by the town while it embraced the portion of territory sought to be excluded. The case, therefore, ' is not parallel with the case at bar, in which a growing, prosperous city ■ has an important public institution within its limits, and all the various accessories necessary to such a city, and which seems to require the entire territory embraced within its 'boundaries for municipal purposes.
A number of other questions have been discussed by counsel, but, in the view we take of the case, a discussion of' them does not seem necessary, as many of them may not arise upon a new trial.
The judgment of the court below is reversed, and a new trial is ordered.