17 S.D. 138 | S.D. | 1903
This is an action to quiet title to a strip of land in the city of Deadwood embraced within the limits of Lee street, as the lines of said street formerly existed and the lines as subsequently changed;- being about 23 feet on Sherman-street and about 30 feet on Lee street. The action was tried by the court without a. jury, and, the findings and judgment being in favor of the defendant, the plaintiffs have appealed from the judgment alone; there being neither a motion for a new trial, nor a bill of exceptions. The only question presented, therefore, is, did the court draw proper conclusions of law from the findings?
The complaint is in the usual form, alleging that the plaintiffs .are the owners of the premises in controversy, and that the defendant claims some right, title, and interest therein adverse to the plaintiffs, and that such claim of the defendant is without right. The defendant, in his answer, denies that the plaintiffs are the owers of the premises, and denies that his claim to the property is without right, and alleges that he is the owner in fee, in the possession, and entitled to the possession of a part of the premises in Controversy. To this answer the plaintiffs filed a reply denying each and every allegation contained in the' .defendant’s affirmative defense,-' and alleging that the said defendant ought not to be allowed to set up or assert title to the said strip of ground mentioned in the said answer, but should be barred and estopped., from
It is contended by the appellants that, notwithstanding Lee street was not legally laid out or dedicated by the owners of the mineral claim, they had, by making conveyances of lots according to the Ault survey and to Rogers’ survey, recognized the existence of the street, and are now estopped from claiming that.it was not a legal highway. Appellants further contend that by the deed to Star and Bullock, made by the mineral claim owners, in which the boundaries are designated as commencing at the northwest corner of Sherman and Lee streets, and running along said Lee street and Sherman street, carried the title of Star and Bullock to both the center of Lee and Sherman streets,.and that the appellants are therefore entitled to the
It is further insisted by the respondent that at the time Miller conveyed the Star and Bullock property to the plaintiffs, on October 18, 1888, the portion of Lee street lying between the
It will be observed from the findings in this case that assuming that Lee street, as originally platted by Ault, was by the acts of Sussenbach and his associates dedicated by them to the public, there is still a further question arising as to the effect of the change made in the easterly end of the street after the flood of 1883, and also after the acceptance by the city of Miller’s proposed change. By the first, it will be noticed, the easterly end of Lee street, where it connects with Sherman street, was moved southerly about 90 feet, and that by the change made by Miller it was removed still further south 23 feet, making a change in that end of the said street of 113 feet. • We are of the opinion that the findings show that the owners of the placer claim clearly dedicated Lee street as originally platted by P. G-. Ault in 1882. Suessenbach and his associates caused the placer claim to be platted as a part of the said city of Deadwood, and laid out thereon said Lee street, connecting Main street with Sherman street. Ault’s survey and Lee street were frequently referred to by Suessenbach and his associates in various conveyances made by them. , After the flood of 1883, while it is said by the court in its findings that there was no evidence of condemnation proceedings, it is further said in the same connection, “Nor was there any evidence of protest or objection to the use of such street by or on behalf of the min_ eral claim owners of mineral lot No. 86,” The court finds that
Section 2783, Comp. Laws 1887, reads as follows: “An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.” Section 3252 reads as follows: “A transfer of land bounded by. a highway, passes the title to the person whose estate is transferred to the soil of the highway in front to the center thereof unless a different intent appears from the grant.” It is insisted by the respondent that the discription in the deed of November 11th clearly shows that it was intended by Suessenbach and his associates to convey that portion of the' premises described lying northerly of the north line of Lee street only. The description is as follows: ‘ ‘That certain fraction of ground commencing at the northwest corner of Sherman and Lee streets, thence northerly along Sherman street 17 feet more or less, thence southwesterly along the southeast line of the present Star and Bullock lot 30 feet more or less to Lee street, thence in an easterly direction to the place of beginning. * * * All a part of mineral claim number 86 in the city of Deadwood as platted by P. L. Rogers, city engineer of said city.” When we take into consideration the fact that Sussenbach and his associates did, in effect, dedicate Lee street to the' public, or at least that’the public had acquired the right to use the same as a public highway, it cannot be presumed that by this'
The two sections of our Code above quoted embody the
The contention of the respondent in the case at bar that as in the description of the deed of November 11, 1887, from Suessenbach and his associates to Miller, and from Miller to the plaintiff in this action, the property is described as commencing at the northwest corner of Lee and Sherman streets, and running thence along Sherman street, thence to Lee street,
The further contention of the respondent that, inasmuch as there had been no statutory dedication of Lee street, the title of the street therefore remained in the grantors, is also, we think, untenable, in this state, where the courts have made no distinction between a common-law and a statutory dedication except in vesting title in the corporation in certain cases of statutory dedication. Section 1099, Comp. Laws; Edmison et al. v. Lowry, 3 S. D. 77, 52 N. W 583, 17 L. R. A. 275, 44 Am. St. Rep. 774.
It is further contended on the part of the appellant that this case must be reversed, in any event, for the reason that the court erred in dismissing the action as to the plaintiff without quieting his title to the property described in the complaint lying northerly of the north line of Lee street. As will have been observed, the plaintiff claims to be the owner of certain pieces or parcels of land (describing them), including lot 10 and fractions of lots particularly described in the complaint, and also the strip of land lying between the north line of Lee street, as that street formerly existed, and the line
As the findings in this case seem to be satisfactory to both parties, the judgment of the court below is reversed, and that court is directed to enter a judgment in favor of the plaintiff, quieting his title to all the property described in the complaint.