73 N.W. 101 (S.D. 1897), Searle v. City of Lead

Citation:73 N.W. 101, 10 S.D. 312
Opinion Judge:CORSON, P. J.
Attorney:H. E. Dewey, for appellant. McLaughlin & McLaughlin, for respondent.
Case Date:November 20, 1897
Court:Supreme Court of South Dakota

Page 101

73 N.W. 101 (S.D. 1897)

10 S.D. 312




Supreme Court of South Dakota

November 20, 1897

Appeal from circuit court, Lawrence county; Adoniram J. Plowman, Judge.

Bill for injunction brought by Julia K. Searle against the city of Lead. From an order granting the injunction, defendant appeals. Affirmed.

Page 102

H. E. Dewey, for appellant. McLaughlin & McLaughlin, for respondent.


This is an appeal from an order granting a preliminary injunction. The plaintiff, claiming to be the owner of certain town lots in Lead city, fronting upon Mill street, in said city, upon which she had erected a house and made other improvements, instituted this action to restrain the city from changing the grade of said street, which she avers the city was threatening to do, and which change of grade, she avers, would cause damage to her property in a sum of, at least, $1,000, until such damages shall be ascertained and paid. The court made the order restraining the city from grading in front of her premises, but permitted it to complete a sidewalk then partially completed.

The errors assigned upon which the city relies for a reversal of the order are, in substance, as follows: (1) That the complaint does not state facts sufficient to constitute a cause of action for an injunction; (2) that the court erred in making said order after the defendant had presented its proposed answer, in which it denied that plaintiff was entitled to any compensation as in her complaint alleged, or that she would sustain any damage; (3) that the court erred in making the order, having dissolved the restraining order as to the construction of the sidewalk; (4) that the court erred, for the reason that the complaint shows upon its face that the only change of grade threatened was to bring the street to the established grade for the first time; (5) because the complaint contains no allegation that plaintiff would sustain irreparable injury, or that the defendant was not solvent, and fully able to pay any damages plaintiff might sustain by reason of such threatened change of grade.

The complaint states, in effect, that the defendant (appellant here) is a municipal corporation; that Mill street is one of the streets of the city; that plaintiff (respondent here) is the owner of certain lots (describing them) fronting upon said street; that she had erected a house and made other improvements upon said lots on the "natural grade" of said street; and that the defendant threatens to change the grade of said street by raising the same about 3 1/2 feet, thereby leaving the house and other improvements of said plaintiff that depth below the grade, causing damage to her property fronting on said street of, at least, $1,000; and that said defendant has not compensated nor offered to compensate her for the damage so threatened. She therefore prays that said defendant be enjoined from in any manner changing the grade of said street until her damages have been ascertained and paid. The defendant filed an answer, which will be referred to further on in this opinion. A hearing was had, and the trial court made the order appealed from.

The theory, evidently, upon which the complaint was drawn, and upon which the court below granted the injunction, was that, under the provisions of the constitution of this state, it was the duty of the defendant to first proceed to ascertain the damage resulting to plaintiff's property by the change of grade or proposed change of grade, and pay or tender the same, before the street could be lawfully graded. The section of the constitution relied on reads as follows: "Private property shall not be taken for public use or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained and before possession is taken." Const. art. 6, § 13. In this connection it may be proper to notice the act of the legislature of 1891, entitled "An act to provide for the assessment by jury of just compensation for private property taken for public use or damaged," approved March 7, 1891, and which constitutes chapter 94, Laws 1891. The first section of this act reads as follows: "In all cases when municipal or other corporations, or individuals...

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