15 S.D. 182 | S.D. | 1901
This is an appeal by the plaintiff from a judgment of the circuit court affirming an order made by the board of town supervisors purporting to lay out a, highway. The petition for a highway filed with the board is substantially as follows: “The undersigned legal voters, who own real estate,” etc., “hereby petition' you to lay out a road as follows: Beginning at the section corner on the north line of Turner township, * * * between sections one and two; * * * then south on the section line, according to the government mounds and pits, to the south section corner between sections thirty-five and thirty-six of said township; the section corner on the north to be in the center of the beginning, and the said section corner on the south to be in the center of the terminal,
The notice of appeal by the plaintiff is too lengthy to be set out in full, and it may be summarized as follows: “The appeal was taken from the order made by the township board and filed in the clerk’s office of Turner township on the 21st day of June, 1898, purporting to lay out a highway in said Turner township, setting out the substance of the order; and the notice declares that the appeal is taken from the whole of said order, and from the whole of the proceedings had by them, or either of them, in said matter, in the laying out of said pretended highway, and in the assessment of damages to the appellant, and from the award of damages annexed to said or
It will thus be seen that the appellant by his notice attacks the proceedings as being without jurisdiction and irregular, in that the order provides for an entirely different highway from that petitioned for, and is otherwise irregular, and that the proceedings are attacked, also, as collusive and fraudulent from their inception to their termination. It would seem, therefore, that under this notice it was competent for the appellant to prove any facts tending to show that the proceedings-were without jurisdiction, were irregular, or were fraudulent. The learned circuit court, however, seems to have taken the view that the order only provided for laying out a section line road, and excluded nearly all of the evidence offered on the part of the appellant to sustain the grounds of his appeal. We do not so construe the order of the board. It will be noticed that the road is established according to the description last aforesaid, and the report and plat accompanying the same, which is made a part of the order. In other words, the board laid out a section line road, but it was on such a section line as they, together with the surveyor, Collins, had established by metes and bounds. It does not purport to'be a section line established by the original survey, and cannot reasonably be so construed. Suppose no appeal had been taken from this order, and the road supervisor was proceeding to open the road on the line surveyed by Collins, and shown by his plat and field notes; could that proceeding or the order be questioned in a collateral proceeding, notwithstanding the Collins line was an entirely different line from that established and shown by the plat and field notes of the government surveyor? If the Collins survey constituted no part of the order, then it should not have been included
Again, the appellant sought to show that the section line road had been established in 1895, some 20 rods westerly of the line established by the Collins survey. The evidence upon this subject was excluded by the court upon apparently the same theory. Again, the appellant sought to show that the whole proceeding, from its inception to its termination, including the Collins survey, was fraudulent, and made for the purpose of injuring the appellant by laying out the road through his premises, and not upon.the section lin^. This evidence was also excluded, but upon what theory is not disclosed. It becomes important, therefore, to determine what the powers of the appellate court are upon an appeal from an order made by the town supervisors in laying out a highway, or in declaring the existence of a highway upon a section line. By section. 1324, Comp. Taws, it is provided that any person who shall feel himself aggrieved by any determination or award of damages made by the supervisors of any town in laying- out any highway may within 30 days after the filing of such determination appeal therefrom; and it is further provided by section 1327 Id., that in case the amount of damages claimed exceeds $100 the appeal may be taken to the circuit court of the county by the service of written notice of such appeal, and that such appeal shall bring before the appellate court the propriety of the amount of damages, and all matters referred to in the notice of appeal. It .is further provided that “unless the parties otherwise agree the matter shall be submitted to a jury and tried as other appeal cases are tried, and the court or jury as the case may be, shall reassess the damages aforesaid, and make the verdict conform to the
There are a large number of errors assigned in the record, but we shall only attempt a review of those we deem most important.
It is next assigned as error that the court erred in refusing to receive in evidence appellant’s Exhibit E., which purported to be a contract between the surveyor, Collins, and the town board of supervisors, to survey the proposed highway. It is claimed on the part of the appellant that as the petition only called for a highway' upon the section line, and as the section line had been established by the government surveyor in making the original survey of the township, there was no necessity or authority for the board to make a survey of this section line for the purpose of making this order; and it seems to have been the theory of the appellant that the proceedings on the part of the board in laying out this highway were fraudulent, and that the making of the survey was a part of the fraudulent scheme. The evident purpose and object of the appellant, therefore, by the introduction of this contract, was to show that the line established by the surveyor was not the true government section line, and the fraudulent character1 of the transaction.
Sections 1189, 1191, Comp. Eaws, provide:
“Section 1189. All section lines shall be and are hereby declared public highways as far as practicable: Provided, That nothing in
“Section 1191. The public highways along section lines, as declared by Section 1189, shall be sixty-six feet wide and shall be taken equally from each side of said lines unless changed as provided in the preceding section.”
Section 1218, Comp. Laws, provides :
“The board of county commissioners has power to establish, change or vacate highways upon section and- quarter-section lines when the initial and terminal points and the course of the highway can be clearly described, without the appointment of viewers or the services of a surveyor; but in all other respects the proceedings therein shall be governed by the provisions of the preceding subdivision of this article relating to the establishment, vacation and change of highways not on such lines.” •
It will be noticed by the latter section that it is the board of county commissioners that has the power to establish highways upon section and quarter-section lines, but it is claimed by counsel for appellant that this law also applies to' town boards when laying out such highways. As there appears to be no special provision upon this subject in the chapter relating to the powers and duties of the board of-town supervisors.in laying out highways, there would seem to be no impropriety in holding that this section is applicable to town boards. Where by the nature of the ground it is impracticable to construct the highway entirely upon the section line, a survey of such portions as are not upon the section line might be proper, and perhaps necessary; but where the entire highway, as appears in the case at bar, can be laid out upon the section line, there certainly was no necessity, and we doubt if there was any authority in the statute, for such a survey for the purpose of laying out the high
The refusal of the court to allow the plaintiff to show by competent evidence that the laying out of the road in question was not a public necessity, and that it was not laid out on the section line, or according to the government mounds and pits, is assigned as error. We are of the opinion that this evidence was admissible. It was certainly competent for the appellant to show that the board had, by their order making the Collins survey part thereof, established a highway not upon a section line in accordance with the original government plat and field notes, but had established a new so-called section line through his premises, and that a highway already existed upon the section line, some rods westerly of the proposed highway. A board of town supervisors cannot, under the guise of laying or altering a section line road, establish a new section line, not in accordance with the government field notes and original mounds, by having such a line established by a surveyor.
It is further assigned as error' that the court erred in refusing to allow the witness Collins to answer the following questions: “Now, in surveying that proposed highway, did you follow and
Again, Mr. Van Antwerp, a surveyor, was placed upon the stand, and, after having shown that he had made a survey and plat of the section lines, and followed or attempted to follow the lines as indicated by Mr. Collins, was asked if the plat, Exhibit M, was a true and correct plat, indicating the lines surveyed by Mr. Collins, and set forth in his report, and the section lines as established by the government survey and plat. This was objected to as incompetent, immaterial, and irrelevant, and calling for a conclusion, and for the reason that no issue was raised by the appeal to which the evidence sought to be introduced would be applicable, and, if there was any mistake in the survey or plat of Collins, it should have been raised by appellant before the supervisors, and their decision had i.jereon. The objection was sustained. These objections were clear ■ iy untenable. As we have before stated, the trial was a trial de novo, and the question of whether or not this Collins survey was made upon the section line was directly raised by the notice of appeal. A number of other questions were propounded to Mr. Van Antwerp, and were ruled out by the court under similar objections, and the appellant was not allowed to show that the Collins survey was not made upon the section line, but was made through his property.
There are numerous other assignments of error, and a large amount of evidence of a similar character was excluded by the court under similar objections by counsel for defendant; but the errors disclosed sufficiently show the nature of the court’s rulings, and the theory upon- which they were made. As we are of the opinion that the court’s theory was clearly wrong, it is not necessary to consider these various rulings further. The case, before its conclusion, was taken from the jury, and findings made by the court. These findings were made after excluding substantially all the evidence offered on the part of the appellant, and were all excepted to. .
There is one other question that we deem necessary to consider. It is contended on the part of the appellant that the whole proceeding was void, and that the board had no jurisdiction to make the order, for the reason that the copies of the petition were not posted for 20 days before any action was taken thereon, having been posted on the 30th of April, and the order made thereunder on the 20th of May, and also for the reason that the notice required to be served upon the parties interested was served on the 23d of May, and the hearing had on the 2d of June, leaving only 9 days intervening between the
These conclusions lead to a reversal of the judgment of the court below. The same is reversed, and a new trial ordered.