157 N.W. 1053 | S.D. | 1916
The town, of Andover is platted and located on the northeast quarter of section 3, township 122 north, range 59 west. The right of way and depot grounds of the Chicago, Milwaukee & <St. Paul Railway Company extend across the north half of this quarter in a line slightly south of east. The platted portion of the town lies wholly south of the railroad right of way and abuts on Railroad avenue, which extends east and west along the south line of the right of way. Main street extends north and south through the central part of the platted portion of the town and terminates at Railroad avenue, no street or highway extending north from that point across the railroad right of wav. The entire business portion of the town lies along and south of the railroad tracks. A section line highway on the east side of town crosses the railroad tracks at a point 1,330 feet east of the north end of Main street, and a quarter section line highway on the west side of town crosses the railroad tracks at a point about the same distance bo the west of the north end of Main street. Public travel from, the north and east passes south on the east highway across the railroad track, thence west to' the business part of the town, while travel from the north and west passes south on the quarter section highway across the railroad tracks, thence east to the business part of the town. North of the railroad tracks, and 614 feet north of the north, end of Main street, a public highway extends east and west on the township line.
Negotiations between the authorities of the town of Andover, the adjoining township of Andover and the railroad company seem to have been instituted1 through which it was pro
“Beginning at the intersection of the said niorbh line of the right of way of the Chicago, Milwaukee & St. Paul Railway Company with the aforesaid road, thence northerly along the aforesaid" section line to the point where the .same intersects the township line between townships Nos. 122 and 123, * * * thence west on said township, line to' the intersection of Main street of the platted town of Andover, if produced northerly to' said point, thence south to the present north end of Main street in the platted town of An-dover, thence east -along Railroad avenue to- the intersection with ■the aforesaid -section line road, * * * tlbence north to the south line of the right of way * * * vacating- that portion of said section line road which passes over and across the right of way. * * *”
Pursuant to this petition and upon proper notice, a hearing was had before said joint hoards, and an order was made and entered granting the petition and—
“vacating that portion- of said section line road which passes- over and across th-e right of -way; * * * such portion to be vacated and closed as soon- as the proposed new road above -described is fit to be opened to public travel.”
It will be observed that a public highway already existed on the township line north, and another highway on the section line east, the lines referred to -in the order. Prom this it -will appear
Section 1754, Pol. Code, provides as follows:
“Whenever the supervisors of any to-wn and the trustees or common council of any incorporated city -or town shall receive a petition praying for the location of a road or for the alteration or discontinuance of any road on the line between such town and incorporated city or town, such road shall be laid -c-ut, altered or -discontinued by two or more of the supervisors of such town and •the majority of the common council or -trustees of such incorporated city or town.”
Under ¡this section, -the joint hoards are g-iven- authority and jurisdiction to locate, alter, or discontinue any road- on the line be-tvdeen the to-wnship and the incorporated city or town. It is perfectly clear, therefore,- that the order purporting to locate and establish a highway -extending from the township' line road, south “to the intersection of Main street of the platted town of An-dover, from a -point at which Main street extended north would intersect said- highway, thence south to th-e present north end of Main street in the platted town of Andover, thence east along Railroad avenue to- the inter sect ton with the aforesaid section line road” within the incorporated town- of Andover, is wholly void and ineffective for want of jurisdiction' in th-e joint boards.
The jurisdiction to establish roads or streets within the corporate. limits of a town or -city is vested- exclusively in the board of trustees of the city- -cr town. Pol. Code, § 1441. It cannot be presumed for a moment that the joint boards -would have -made •the order -vacating the highway across the railroad right of way' and' tracks, without the 'extension -of Main street north to an "intersection with the town-ship- 'line highway north. This is entirely dear from the- concluding portion of the- order of the joint boards which -directs' that -the highway over the railway crossing shall be vacated -and1 clo-sedi “only when the proposed new road is fit to-
The judgment and order appealed from are affirmed solely upon the ground of want of jurisdiction in the trial court to try the merits of the controversy, and the trial court is directed to remand the matter to the joint boards directing them to dismiss the petition for want of jurisdiction. No costs shall be taxed by either party in- this court or in the trial court.