80 N.W. 182 (S.D. 1899), Meek v. Meade County

Citation:80 N.W. 182, 12 S.D. 162
Opinion Judge:FULLER, J.
Attorney:Charles C. Polk and Charles W. Brown, for appellant. Wood & Buell, for respondent.
Case Date:September 02, 1899
Court:Supreme Court of South Dakota

Page 182

80 N.W. 182 (S.D. 1899)

12 S.D. 162




Supreme Court of South Dakota

September 2, 1899

Appeal from circuit court, Pennington county; Levi McGee, Judge.

Action by Margaret Meek against Meade county. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Charles C. Polk and Charles W. Brown, for appellant. Wood & Buell, for respondent.


As a basis of a claim of $400 damages, caused by the negligence of defendant's officers in opening a fence, whereby plaintiff's land was exposed to trespassing animals, in violation of an express agreement, it is in the complaint alleged "that on the 10th day of July, 1895, the plaintiff sold and by deed conveyed to Meade county a strip of land sixty-six (66) feet wide through said land, for a public highway, said land being then and there inclosed together with a good and sufficient fence, and, as a part of the consideration for the deed to such strip of land for such public highway, the said county, by its county commissioners, duly and legally qualified and acting, promised and agreed, at the expense of said county, to build, construct, and maintain a good and substantial fence along both sides of said highway, and such agreement was in writing, and contained a specific provision in words and figures, as follows, to wit: 'The party of the second part agrees to build and maintain a lawful fence on the limits of said right of way, using the fence, wire, and posts conveyed by first to second party in construction of said fence."' Upon the theory that the act of purchasing this land for the purposes of a public highway, and the entering into a contract, as part consideration therefor, to build and maintain a fence along its limits, is ultra vires, the defendant interposed a general demurrer, which was overruled, and the point is here presented for review. In this state, and in fact generally, the public is authorized to acquire for the purposes of a road no more than an easement, while the owner of the fee remains the owner of the land, subject to such incumbrance. Const. art. 6, § 13; Comp. Laws, § 2783. Nothing in jurisprudence seems more firmly fixed than the doctrine charging persons contracting with public officers with notice of their legitimate powers, as defined and limited by law, and by which the municipality assumed to be represented is absolved from all contractual liability...

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