Whittaker v. City of Deadwood

• Decision Date: 02 March 1900
• Citation: 82 N.W. 202,12 S.D. 608
• Parties: WHITTAKER v. CITY OF DEADWOOD et al.
• Court: South Dakota Supreme Court

82 N.W. 202

12 S.D. 608

WHITTAKER v. CITY OF DEADWOOD et al.

Supreme Court of South Dakota

March 2, 1900

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

Action by Thomas Whittaker against the city of Deadwood and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Fuller P. J., dissenting.

Chas E. Davis and G. C. Moody, for appellant. W. G. Rice and John R. Wilson, for respondents.

CORSON J.

This is an action on the part of the plaintiff to have declared illegal and void certain special assessments for street improvements, to cancel certain tax certificates which have been issued therefor, and to enjoin the city from issuing a deed or deeds upon such certificates. Findings and judgment were in favor of the defendant. Since the taking of the appeal in this case the plaintiff has redeemed the property from the sale, and the respondent now moves the court for that reason to dismiss the appeal. It appears from the affidavits read on the hearing of the motion to dismiss the appeal that the time for taking out the deed or deeds upon the street-assessment certificates was about to expire, and that the day prior to the expiration of such time the plaintiff paid to the city treasurer the amounts represented by the certificates, with interest thereon, under protest and that the city treasurer thereupon canceled said certificates. The respondent insists that, the certificates being canceled, there is no longer any controversy existing between the plaintiff and the defendant. But we are of the opinion that, as the redemption of the certificates was made in order to prevent them from ripening into a deed to the property, and under protest, the appellant is entitled to have the case decided in this court upon its merits. Not only is there a question of costs involved in the case, but also the right of the plaintiff to have a determination of the questions involved in the action, in order that the judgment of the court below may be reversed, and cease to be a bar to future proceedings to recover back the money so paid under protest. It is claimed by appellant that the payment of the amounts due upon the tax certificates was a voluntary payment, but we cannot accede to this view. Where a party redeems property about to be conveyed by a tax deed, under protest, such payment cannot be regarded as voluntary. Under the theory of the respondent in this case, the appellant was compelled to do one of two things,--either allow the tax certificates to ripen into a deed, which might result in depriving him of his property, or lose his right of appeal in this court. We are not inclined to sanction such a doctrine. Hanaw v. Bailey (Mich.) 46 N.W. 1039, 9 L. R. A. 801; Martin v. W. J. Johnston Co., 128 N.Y. 605, 27 N.E. 1017; Harrington v. Town of Plainview (Minn.) 6 N. W. 777; James v. Wilder, 25 Minn. 305; Peyser v. Mayor, etc., 70 N.Y. 497; Bank v. Mayor, etc., 43 N.Y. 184; Swift v. City of Poughkeepsie, 37 N.Y. 511. This brings us to the merits.

It appears from the case before us that the plaintiff was the owner of certain lots on the corner of Sherman and Deadwood streets, in the city of Deadwood. Prior to 1893 he had erected buildings upon the said lots, which were occupied for store and office purposes. At the time his buildings were erected, they conformed to the grade of Sherman and Deadwood streets as it then existed. On the 5th of June, 1893, the city council of that city adopted a resolution declaring that they deemed it necessary to grade, macadamize, curb, drain, and otherwise improve, among others, Deadwood and Sherman streets. Within 20 days from the passage of this resolution the plaintiff filed his protest against grading and macadamizing the said streets; stating therein that he had made improvements upon his property abutting upon said streets, and that he was advised that in grading and macadamizing said streets it was proposed to change the grade, which said change would leave his improvements below the grade so to be established, and that such change of grade could not lawfully be made without making compensation to him for the damage which would result to his property. Notwithstanding this protest on the part of the appellant, and without taking any proceedings to ascertain the amount of damages which the appellant might sustain by reason of a change of grade, the city council on the 28th day of August, 1893, passed an ordinance requiring said streets to be graded and macadamized as provided in the ordinance. On the 27th day of September an ordinance was passed providing for establishing the grades of certain streets, including Sherman and Deadwood streets, on which the property of the appellant abutted. The grade so established resulted, as claimed by respondent, in leaving the buildings upon his property considerably lower than the street. No notice seems to have been taken of appellant's protest on the part of the city council. Under the ordinance adopted by the city, contracts were let, and Sherman and Deadwood streets were graded and macadamized, and otherwise improved, upon the new grade so established; and for such grading and macadamizing the appellant was assessed about $900, and, failing to pay the same, his property was sold therefor, and certificates issued, which were redeemed by him, as before stated.

On the trial of the case there was evidence introduced on the part of the appellant tending to prove that the grade of these streets had been previously established by the board of county commissioners, at a time when they had authority to establish the grade of the streets of the city of Deadwood. The court found, however, that no valid ordinance establishing such grade had been adopted. But in our view of the case this finding is not material. In Searle v. City of Lead this court, in an opinion handed down since this appeal was taken, held that the provisions of section 13, art. 6, of the state constitution, declaring that private property shall not be taken for public use or damaged unless compensation be first ascertained and paid, are not controlled by section 18 art. 16, c. 37, of the Laws of 1890, and that the provisions of the...