135 N.W. 684 | S.D. | 1912
Lead Opinion
This is an action to enjoin the defendant from obstructing an alleged public highways. The appeal is by the plaintiff from a judgment in favor of the defendant, and an order denying the plaintiff’s application for a new trial.
The defendant owns the N. W. ¡4 of section 12, township 123, range 64. The city of Aberdeen is partially situated in the S. W. Rj of the same section; the north boundary of the city being the south boundary of the defendant’s land. Main street extends through the S. W. 4 °f section 12, about 1,788 feet east of and parallel to the west line of the quarter. The plaintiff owns a half section directly north of the defendant’s land. It is alleged in -the complaint that continuing on a direct line north from the north end of Main street through defendant’s land to the line between sections 1 and 12 is a strip of ground 80 feet in width, which has been in continuous and unobstructed use as’ a public highway for more than 20 years last pas-t, with the knowledge arid
(1) If the public has the right to travel on the strip of ground in dispute, it was -acquired by -prescription or by dedication. Assuming -that the doctrine of prescription is applicable to public highways anywhere, it is subject, -in this state, to the following statutory provisions not heretofore interpreted by this court: “All public 'highways, which have been or may hereafter be used
Nor should the described strip of land be deemed a public highwa}'', assuming the first sentence of section 1632 to be applicable, for the reason that the evidence is wholly insufficient to justify the conclusion that the same was used by the public as a public highway by 20 years or more before this action was commenced. Therefore, in any view of the statute and evidence, the decision of the trial court, so far as it relates to the question of prescription, should be sustained.
Dissenting Opinion
(dissenting). As- I read the evidence in this case, it appears absolutely uncontradi-cted 'that the owner of the quarter section of land over which the claimed highway runs, presumably with a view of thereafter platting such quarter section of land, laid out a -highway running across said quarter section, the sam-e being a continuation of the -then and now Ma-in street of the city of Aberdeen and extending in a line exactly conforming with such street. This -highway was marked out by the -planting of two rows of trees -on- either side thereof. It was opened to the public travel, and, to keep such travel within the bounds thereof, wires were strung along parts of such highway. The public did travel, some over -the whole length thereof, and some leaving this highway to -cut across tire open pra-inie, and thus save distance to the objective point. The proper road officials did more -or less work along such strip of land, and among other things done, placed a wooden -culvert -across -such uo-acl where it -crossed a low place. There is absolutely no evidence upon which to justify any holding that -this strip- was laid o-u't as a private way. It did not extend to any land -owned by the owner of this quarter section. Every particle of evidence points' to- the intent, upon the part of tire owner of this quarter, that such s-trip was f-or the use of the public as a highway. Thus there was, under all the authorities as T read them, a complete -dedication and acceptance thereof. That being-true, no change of min-cl on the part of the then- owner of the quarter section., -nor any .-desire -on the part of -subsequent purchasers to destroy this easement vested in the public, could destroy such easement.