136 N.W. 107 | S.D. | 1912
This is an appeal by the plaintiff from a judgment entered in favor of the defendant, and from the order denying a new trial. The action was instituted by the plaintiff to quiet title to a certain tract of land in the city of Hurley described by metes and bounds and known as outlot 18, except the north 175 feet and except a strip ten feet in width and extending 525.1 feet along the street; the plaintiff alleging in his complaint, in substance, that he is the owner and in the possession of said outlot No. 18, excepting portions above described, and that the defendant, a city of the third class, claimed an interest adverse to the title of the'plaintiff to said premises; and the plaintiff further alleged that the said claim of the said defendant was made under
It is contended by the plaintiff that the defendant could acquire no lien upon the portion of outlot 18 claimed by plaintiff, for the reason that there intervened between said outlot owned by the plaintiff and the said street, the strip of land above mentioned. The court in its findings found that said alleged transfer above referred to was made for the purpose of avoiding the payment of the sidewalk tax, and concludes that said transfer was “void and of no effect so far as it relates to the tax assessed for building of said sidewalk, and that said tax is a lien upon the whole of said outlot 18 except the north 175 feet thereof.” We are of the opinion after a careful review of the evidence that the court’s finding was fully sustained by the same. O’Connell, it appears from the evidence, was in the employ of the plaintiff, and engaged in ranching in the western part of the state. He was a single man without a family, and had no other interest in the defendant city. The purported conveyance by the plaintiff to O’Connell of the strip of land 10 feet in width and extending 525 feet along
This brings us to the question as to whether or not the .proceedings of the common council of the defendant were such as to render the lien of the city valid and binding upon said outlot. The findings of the court are very voluminous, and we shall not attempt to reproduce them in full in this opinion, as they contain at great length the motions, resolutions, and ordinances adopted-by the city council in the proceedings taken for the construction of the sidewalk in controversy, but such of them as we deem material will be referred to.
It is disclosed by these findings that on September 7, 1909, on motion, it was decided to construct sidewalks on the east side of outlot' 18 and other streets; that on September 13th Ordinance No. 29, being an ordinance establishing sidewalks as in previous motion on September 7th, was introduced; that on September 20th Ordinance No. 29 was read for the second time and upon motion passed; on October 4th a resolution was introduced and the date of final1 action set for October 18th, and notices were ordered posted on the property affected and served on the owners of same. On October 18th the sidewalk resolution introduced at the previous session was read, and the parties interested were given ah opportunity to enter objections. W. B. Wood appeared on behalf of the tile factory, and stated that they did not want to
The assignments of error are quite numerous but may be grouped under four headings: (1) That -the ordinance passed by the city council failed to state that “necessity existed for the construction of said sidewalks”; (2) that the ordinance provided for sidewalks along different streets in the same -ordinance; (3) that the court erred in finding that the -proceedings certifying the amount of the assessment by the city auditor were legal and valid and created a valid lien upon the outlot of the plaintiff; (4) that the court erred in not finding the facts as presented to him by the proposed findings of the plaintiff.
It will be observed that section 1541 provides that “whenever the common council of any city of -the third class * * * shall deem it necessary to construct or repair any sidewalk,” etc. It is contended by the appellant that the ordinance adopted in the case at bar was fatally defective, in that it does not affirmatively appear that it was declared by the common council to be necessary to construct such sidewalk. It is insisted, however, on the part of the defendant that, inasmuch as the section does not require in express terms that such declaration shall be contained in the ordinance, no such declaration is necessary. We are inclined to take the view that the defendant is right in its contention, and that it is sufficient that the city council pass an ordinance, and thereby affirm the necessity of the construction of such sidewalk. The Legislature having failed to require that the declaration as to the necessity shall be contained in the ordinance, this court is not at liberty to interpolate into- the law a provision not contained therein. The learned counsel for the plaintiff has cited a number of authorities holding that, unless such declaration is contained in the ordinance, the same is void, but an examination of the authorities discloses the fact that in all, or nearly all, the cases the Legislature had required that the ordinance should contain such a declaration. Council cites as one of his cases McLauren v. City of Grand Forks, 6 Dak. 397, 43 N. W. 710, decided by the late territorial Supreme Court of the territory of Dakota, but in that case it is
We have not overlooked the other assignments of error, but do not deem them of sufficient importance to merit separate discussion.
Our conclusion, therefore, is that the judgment and order denying plaintiff’s motion for new trial were correct, and the same are affirmed.