Swenson v. Split Rock Civil Township

163 N.W. 563 | S.D. | 1917

WHITING, J.

This action involves a determination of the location of the section lines in the north half of Split Rick Township, Minnehaha county, S.' D. It seems that for years there has been a dispute among the owners of land in said territory concerning the true location of the section and quarter section lines; some of the owners claiming that the true lines as marked by the original government corners were, in almost every instance, in accord with the lines of travel that had been established through said territory; others claiming that such lines of travel were not upon the government section lines, and that it was impossible to determine -where suoh section lines actually were. Pursuant to a vote of the people of said township a resurvey of said township was had, which survey purported to locate the several section and quarter corners. The township officers being' about to enter upon extensive improvement of the highways of said township, and intending to locate such highways along the lines of such resurvey, plaintiffs — who are owners of lands within said 'north half of such township — 'brought this action as taxpayers and as such owners of lands and sought to restrain the township officers from entering into obligations binding said township and from spending the funds of said township in the improvement of public highways along the line of said resurvey, and also sought a decree requiring the highways to be maintained and improvements thereof, if any, -to be made along the lines alleged by them to 'be those conforming to the original government survey. . Defendants asked that the plaintiffs be required to make 'all the other landowners in said territory parties to this action, and that the defendants be allowed, by cross-bill, to- put in issue, as between disputing landowners, the question of the true location of such section lines of said territory to the end that the matter of the proper location of such highways might be fully determined and the township, through its officers, thereafter proceed safely in the'-improvement of said highways. From an order refusing these requests, the present appeal is taken.

[1-3] We are of the -opinion that the trial court was in error •in refusing the order sought. There can be no question but -what any taxpayer has the right to bring an action to restrain the expenditure of public money whenever the authorities are about to expend the same in an unauthorized manner or at an unauthorized place.' But this proceeding goes much farther - than the ordinary action of that nature. In effect it seeks to have determined, in-an action between the plaintiffs and the township, the location of the boundary lines of all the farms in such territory. Without the bringing in of the additional parties, any decree rendered as between the present parties, if in favor of'the plaintiffs, -would prevent the township officers from improving the highways along the lines of the resurvey, and would require them to maintain the highways -along the lines claimed by the plaintiffs; but such decree could have no binding effect as against the other landowners nor made -parties to such action; and, while it might be presumed that any findings rendered in this action would be -in -accordance with the truth and undoubtedly would be in accordance with the evidence received, yet it is clear that, in another action which might be brought by -other landowners seeking to prevent the expenditure of money • upon the lines claimed by plaintiffs, other evidence -might be produced which would lead the court, upon the trial of such action, to conclude that the true location of part or all -of the section lines w-as not as found in this action. Thus there might arise an intolerable situation and- one'which no court should render possible if prevention is within its power. To illustrate : In one -case the parties might not know of, or might be unable to produce, the testimony of some one or' more witnesses whose testimony when produced in the second -case thoroughly established the true location of certain obliterated corners which, in the former case, were found to- h-ave become lost and not merely ‘obliterated. ' ' •

It would appear from the pleadings that -certain of the -owners of adjacent lands have agreed upon the true line between their properties. We áre of the opinion -that this fact is not sufficient to excuse the bringing in of said parties as parties to this’action. Suppose the owners of the N. W. of i and N. E. of’ 2 should agree that -the true location of the section 1-ine between suoh- sections was in accord with the resu-rvey, while' the owners of the S. W. of 1 and- thé S. E. o’f 2 should-’ agree that the line as cláimed’by plaintiffs- wás'the true line,’ thus leaving’a jog at the quarter section line along which there would' he no highway; or suppose the owners of the first two quarters should be agreed while the owners of .the other two quarters were disagreed and the result of the trial herein should be that the court determines the line ¡between the second quarters to be along' the line not agreed upon by the owners of the first quarters, it is apparent that a situation would be created that should be avoided. We are therefore of the opinion that, regardless of the fact that certain of the owners of adjacent lands may be agreed as to the location of 'the disputed lines, they should be made parties herein to the end that the judgment of the court may fix the true lines.

If plaintiffs as taxpayers had brought this action to restrain defendants from proceeding to expend the township' funds upon the highways until the dispute as regards the true locations of ■such highways 'had been 'determined, and the court had granted the relief asked, and 'then the defendants had brought an action to determine the location of these several sections lines, it would seem clear that all landowners whose lands adjoined such lines would of necessity be made parties; therefore when plaintiffs, in one action, are seeking to have determined what would be determined in the two actions above referred to, they certainly should make parties thereto all who would be necessary parties in the second of such actions.

We are therefore of the opinion that, inasmuch as the determination of the issues herein cannot settle the rights of, and he binding upon, all the parties interested in the main question involved — the boundary lines of' the several farms in this half township — unless all of the owners of such farms are made parties hereto1, and inasmuch as a final determination of sucah question is necessary for the full protection of defendants, the trial court should have granted, the relief prayed for. We approve of the following found in Daniels, Chancery PI. & Pr. (3d Am. Ed.) 181:

“It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all per'sons interested in the subject of the suit, so as to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigaton. Eor this purpose all persons materially interested in the subject ought generally, either as plaintiffs or defendants, to be made parties to the suit.”

As supporting the same holding, see 16 Cyc. 181-189. We do not think that any other than the owners of such lands need be joined' — the holder of liens need not be.

The order appealed from is reversed.

GATES, P. J., taking no part herein.