Board of Com'rs of Spink County v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 03 October 1911
• Citation: 132 N.W. 675,28 S.D. 44
• Parties: BOARD OF COM'RS OF SPINK COUNTY et al. v. CHICAGO, M. & ST. P. RY. CO.
• Court: South Dakota Supreme Court

132 N.W. 675

28 S.D. 44

BOARD OF COM'RS OF SPINK COUNTY et al. v. CHICAGO, M. & ST. P. RY. CO.

Supreme Court of South Dakota

October 3, 1911

Appeal from Circuit Court, Spink County; Alva E. Taylor, Judge.

Proceedings by the county commissioners of Spink county on the petition of J. M. Miles and others to compel the construction of a crossing over the right of way of the Chicago, Milwaukee & St. Paul Railway Company in Spink county, S.D. From a judgment of the circuit court affirming an order of the county commissioners requiring the railroad company to construct the crossing, it appeals. Reversed.

Elliott & Stilwill, for appellant.

Wm Issenhuth, State's Atty., for respondents.

CORSON J.

This is an appeal by the defendant from a judgment of the circuit court affirming an order made by the county commissioners of Spink county requiring said defendant to construct a crossing over a section line highway crossed by the defendant company's railroad.

The proceedings were instituted under the provisions of sections 527 to 531, inclusive, of the Civil Code, which provides, in substance, as follows: Whenever five electors, residents upon a traveled highway upon any section line in this state over or across which any railroad company may have a track or operate a line of railroad, shall petition such company to construct a crossing where its line of railroad crosses said highway, it shall be the duty of such railroad company within 30 days to construct the same. And, upon its refusal to so construct such crossing, the county commissioners, upon being notified of such refusal, shall upon 10 days notice require the railroad company to show cause, if any, why it shall not be compelled to construct such crossing. And upon the hearing of such order, if, after a full investigation and consideration of all the circumstances surrounding the matter, the county commissioners conclude that the public welfare and convenience demand the construction of such crossing, an order directing the construction of such crossing signed by the chairman of the board of county commissioners and attested by the county auditor shall be served upon said railroad company. And, in case the said railroad company refuse or neglect to construct such crossing within 30 days thereafter, the board of county commissioners shall cause such crossing to be constructed, and shall be entitled to recover of the said railroad company the amount necessarily expended in the construction of such crossing. The board of county commissioners having made such an order after a full investigation, the defendant refused to comply with the same, and appealed from said order to the circuit court, which court, as before stated, affirmed the order made by the board of county commissioners. The trial in the circuit court was had upon an agreed statement of facts, in which it was stipulated that the crossing so ordered to be made by the company was at a point within the limits of the city of Redfield in said county. The facts found by the court are substantially the same as those submitted by both appellant and respondents.

The conclusions of law were made by the court in favor of the respondents, but those proposed on the part of the appellant upon said facts, and which the court refused to adopt, are as follows: "(2) That the public highway in question, upon its inclusion within the municipal boundaries of the city of Redfield, Spink county, S. D., on the incorporation of the said city, became ipso facto a street and subject to municipal control. (3) That the board of county commissioners of said Spink county have not now and at the time of making the order set out in the above findings of fact had no jurisdiction over the highway or street at the place in question. (4) That the said board of county commissioners therefore had and now have no jurisdiction over the subject-matter in issue herein, and that the appellant is entitled to a decree of this court declaring and adjudging the said order of said board of county commissioners to be null and void for want of jurisdiction." These conclusions of law proposed by the appellant, refused by the court, were duly excepted to by the appellant.

The appellant contends that, as the crossing was within the limits of the city of Redfield, the city council of that city had exclusive jurisdiction over the subject of this crossing and that the board of county commissioners was without jurisdiction to take any action in the matter. We are inclined to take the view that the appellant is right in its contention.

By section 1229, subd. 7, Pol. Code, it is provided that the city council shall have power to lay out, establish, and open streets, etc.; and by subdivision 26: "To require railroad companies to fence their respective railroads, or any portion of the same, and construct cattle guards crossings of streets and public roads, and viaduct or overhead crossings, and keep the same in repair within the limits of the city." And by section 1724 it is provided that the city council shall have the same powers and duties conferred and imposed upon town supervisors, and, in addition, it shall be the duty of the city council to appoint some qualified elector of each road district in the city to be overseer of roads for such district. And by section 1535 it is provided: "The territory embraced within the limits of any incorporated town in this state shall constitute a road district for the purpose of levying and collecting the highway labor and road tax within the same, which said road district shall be known as the "Independent road district of the town of _____," giving to each such district the name of such incorporated town. It will thus be seen that the city council is vested with full power and authority to manage and control the streets and highways of the city within city limits, and to require railways operating roads within such city to construct crossings in such manner as said council may deem proper, and, while...