Brannigan v. Schneck

• Decision Date: 22 April 1926
• Docket Number: 5778
• Citation: 50 S.D. 116,208 N.W. 718
• Parties: J. P. BRANNIGAN, Plaintiff and appellant, v. JOHN SCHNECK, Mayor of Clark, et al, Defendants and respondents.
• Court: South Dakota Supreme Court

50 S.D. 116

208 N.W. 718

J. P. BRANNIGAN, Plaintiff and appellant,

v.

JOHN SCHNECK, Mayor of Clark, et al, Defendants and respondents. South Dakota Supreme Court Appeal from Circuit Court, 'Clark County, SD Hon. W. N. Skinner, Judge #5778--Affirmed Case & Case, Watertown, SD Attorneys for Appellant. R. A. Dunham, W. W. Titus, Clark, SD Attorneys for Respondents. Opinion filed April 22, 1926

MISER, Circuit Judge.

In this action plaintiff seeks to have his property decreed to be outside the city limits of Clark and relieved from special assessments levied for the construction of a sewer therein. He contends, first, that the outlots involved are not within the city; and, second, that, if within the city, no benefit accrue to plaintiff's property, because (a) the sewer does not extend to within 1,800 feet of plaintiff's property, and (b) if same were extended, the ground is so level that the extension of the sewer at a sufficient depth tinder the ground to avoid freezing would not give sufficient fall to permit flow.

Plaintiff's property affected is acre property, and no plat of same has ever been recorded in the office of the register of deeds, as required before contiguous territory can be included within the city by section 6560, R. C. 1919, or by its preceding statute, section 1378, Pol. Code 1903. In 1909 the county surveyor prepared a plat of these and other outlots, which were then admittedly outside the city, for the purpose of facilitating the assessment and collection of taxes thereon. In 1915, purporting to comply with section 1378, supra, with reference to the annexation of lands platted and recorded as additions, yet without the particular lands in question having been platted or recorded as an addition, the city of Clark adopted a resolution including the lots in question and other lots within the city of Clark. It seems to be apparent that the law was not complied with in this attempt to extend the city limits.

As to this point respondent city makes two contentions: First, that appellant cannot make a collateral attack upon the annexation proceedings at this time by an action to restrain the collection of a special assessment; and, second, that plaintiff is estopped by laches and by his conduct from now questioning the validity of the annexation proceedings. Inasmuch as this point will have to be determined favorably to respondent under the authority of State ex rel. Brown v. City of Pierre, 90 N.W. 1047, it is not necessary to pass upon the question of whether this is a collateral attack upon the annexation proceedings and whether such attack would be permissible. The facts in this case clearly bring it within the rule in State ex rel. Brown v. City of Pierre, supra, in that in both cases about eight years had elapsed between the time of annexation and the time of attack. Both plaintiffs had paid taxes upon the real property with knowledge that part of such taxes would go to the use of the city. Both plaintiffs voted in the city in matters of city interest, and, while in the Pierre Case the plaintiff signed the petition for annexation, whereas in the case at bar plaintiff did not do so, not being then the owner of the land, in the case at bar plaintiff voted in the city of Clark in a purely city matter even after he had filed his amended complaint herein. Plaintiff in the case at bar recognized the extended limits of the city in description of his property in mortgages. Furthermore, in the case at bar plaintiff stood by and raised no, question as to his lots being legally within the city until the sewer had been constructed, the general, spread of the assessment calculated, taking into consideration the whole district, and three installments of the sewer assessment had been collected of the ten annual assessments, which aggregate a general spread assessment of $31,476.41; the balance of the $66,000 which the...