Alcorn v. Edmunds County
| Decision Date | 07 March 1932 |
| Docket Number | 7023 |
| Citation | 59 S.D. 512,241 N.W. 323 |
| Parties | MABEL A. ALCORN, Respondent, v. EDMUNDS COUNTY, Appellant. |
| Court | South Dakota Supreme Court |
EDMUNDS COUNTY, Appellant. South Dakota Supreme Court Appeal from Circuit Court, McPherson County, SD Hon. J. H. Bottum, Judge #7023—Reversed H. L. Woodworth, Ipswich, SD Attorneys for Appellant. J. M. Berry, Ipswich, SD Attorney for Respondent. Opinion Filed Mar 7, 1932
Plaintiff instituted this action to recover from Edmunds county damages which she claims to have sustained by reason of the construction of an overhead crossing on federal highway No. 12 one-half mile east of Roscoe over the railroad tracks of the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. Plaintiff owns a tract of land on the south side of this highway, and on which she erected in the fall of 1922 a nine-room house, barn, and other buildings. The house is 52 feet from the edge of the highway. When the house was constructed, there was an ordinary highway grade along the front of plaintiff’s buildings.
The railroad right of way is approximately 250 feet north of plaintiff’s house, and runs in a southeasterly direction, and intersects the highway one mile east. There is a railroad wye to the east of plaintiff’s premises, and within the distance of a mile the original federal highway No. 12 crossed the tracks of the wye and also the main railroad right of way. In 1924 the state highway commission changed the course of this highway, and eliminated the railroad crossings by the construction of an overhead crossing slightly to the northeast of plaintiff’s house. The west approach is a dirt embankment, approximately 250 feet in length, and is 9 feet above the level of the ground at the nearest point north of plaintiff’s house, a distance of 75 feet to the center of the approach, and increases to the height of 23 feet above the ground at the structural part of the overhead crossing. The embankment obstructs the view to the north from the house and building site, and the traffic over this approach raises an excessive amount of dust which settles in the house and about the premises. There is also the claim that the approach causes water to accumulate and snow to drift in front of the house. The jury returned a verdict for the plaintiff, and, from the judgment rendered thereon and order denying motion for new trial defendant appeals.
It is the contention of the defendant, asserted by. proper assignments of error, that the judgment is erroneous, for the reason that no cause of action against the county is stated in the complaint; that there is no allegation in the complaint to connect or show that the county constructed, or was required to construct or maintain, the highway in question, or that it had any duty to perform in connection with this highway.
There was no taking or physical invasion of plaintiff’s property. The damages are consequential, and the question presented is whether plaintiff can recover damages which are not immediate and direct, caused by the construction of the overhead crossing and the elevating of the grade in front of her property. Plaintiff asserts her claim under section 13, art. 6, of the State Constitution:
The right to recover damages when private property is taken or damaged for a public purpose does not arise from this provision of the Constitution; it prevents the Legislature from invading the right and vests in an owner of property the right to prevent the taking or damaging of property until compensation is paid. Hyde v. M. D. & P. Ry....
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