Centerville Twp. v. Jenter

• Decision Date: 05 April 1910
• Citation: 126 N.W. 575,25 S.D. 314
• Parties: CENTERVILLE TOWNSHIP, Plaintiff and respondent, v. JACOB JENTER, Defendant and appellant.
• Court: South Dakota Supreme Court

25 S.D. 314, 126 N.W. 575 (1910)

CENTERVILLE TOWNSHIP, Plaintiff and respondent v JACOB JENTER,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Turner County, SD

Hon. E. G. Smith, Judge

Affirmed

Alan Bogue, Jr., French & Orvis

Attorneys for appellant.

L. L. Fleeger

Attorney for respondent.

Opinion filed April 5, 1910

HANEY, J.

This action was instituted by an organized civil township to enjoin the defendant from obstructing an alleged highway within its boundaries, extending in a southwesterly direction parallel with the Chicago & Northwestern Railroad right of way, from the section line highway between sections 22 and 27 to the section line highway between sections 27 and 28. So far as material to this appeal the trial court found the facts to be substantially as follows:

(1) That the plaintiff is one of the organized civil townships of Turner county;

(2) that Sarah A. Robinson, formerly Sarah A. Hammond, acquired title to the E. 1/2 of the N.W. 1/4 of section 27 in the plaintiff township, by patent from the United States, March 20, 1872; that she continued to own the same until August 8, 1890, when she deeded it to William Robinson, to whom she was married prior to the last-mentioned date;

(3) that William Robinson owned the northwest quarter of section 27, the E. 1/2 of the N.E. 1/4 of section 28 and the S.W. 1/4 of the N.E. 1/4 of section 27, from August 8, 1890, to December 21, 1897, when he deeded the E. 1/2 of the N.W. 1/4 of section 27 to his wife, Sarah A. Robinson;

(5) that Sarah A. Robinson, her husband having died in 1900, deeded the E. 1/2 of the N.W. 1/4 of section 27, except the Northwestern right of way, to C. W. Best, November 2, 1898;

(7) that Best and wife deeded to the defendant the S.E. 1/4 of the N.W. 1/4 of section 27, and all of the N.E. 1/4 of the N.W. 1/4 of section 27, south and east of the railway right of way, March 29, 1904;

"(9) that during the time William Robinson owned the N.W. 1/4 of section 27, township 96, range 52, as set out in finding No. 3, he assented to give to the public, for use as a public highway, the following described strip of land across both the east and the west 80's of the said N.W. 1/4, to wit, a strip of land four rods wide, commencing at a point in Centerville township where the section line between sections 22 and 27 intersects the right of way of the Chicago & Northwestern Railway Company, connecting Centerville, South Dakota, and Yankton, South Dakota; thence running in a southwesterly direction on the south and east of said right of way and parallel and adjacent to said right of way to the point where it intersects the section line between sections 27 and 28 in said township;"

"(10) that during the time William Robinson owned said N.W. 1/4 of section 27, as set out in finding No. 3, his wife, Sarah A. Robinson, did assent to give to the public, for use as a public highway, a strip of land across the said quarter described' in finding No. 9;"

(11) that during the time Sarah A. Robinson owned the E 1/2 of the N.W. 1/4 of section 27 she did not assent to the use by the public as a highway of the land in controversy;

(12) that there was a well-traveled road along this alleged highway continuously used by the public from 1887 to April 1, 1905, when it was obstructed by the defendant;

(14) that when defendant purchased the E. 1/2 of the N.W. 1/4 of section 27, he knew of the existence of this well-traveled road, and had known of its existence for some years prior thereto;

(16) that from 1882 to 1902, a dwelling house was situated from 250 to 400 feet from the road in controversy, on the N.W. 1/4 of section 27, wherein William Robinson and family resided from 1882 until his death in 1900, and wherein his wife and family continued to reside until 1902;

(17) that neither William Robinson nor his wife ever selected or caused any homestead to be marked out, platted or recorded as provided by sections 3226 and 3227, Rev. Pol. Code. As all the findings of fact except the tenth were expressly agreed to by the parties, it is conclusively established, for the purposes of this appeal, that William Robinson assented to the dedication of the alleged highway while he was the owner of the land affected thereby, that the defendant knew of the existence of a well-traveled road when he purchased the land now owned, by him, and that the alleged highway was used continuously by the public without obstruction from 1887 to 1905.

"It may be stated as a general proposition that no particular formality is essential to an implied dedication or acceptance of land for a public use. Conduct on the part of the owner that is clearly expressive of an intention to dedicate usually amounts to dedication, if acted upon by the public in a manner which clearly justifies the inference of an acceptance."

Larson v. Chicago, M. & St. P. Ry. Co., 19 S.D. 284, 103 N.W. 35. As to William Robinson, the owner, dedication was complete.

It is contended, however, that, whereas the land affected embraced a homestead, there could be no valid dedication without the assent of Robinson's wife, and that the evidence was insufficient to justify the finding that she did assent as stated in the tenth paragraph of the circuit court's decision. The contention is not tenable. Assuming the record discloses the fact that the Robinson homestead was affected, and that the wife's assent was essential to a valid dedication, two extremely doubtful propositions, still the decision of the learned circuit court should not be reversed. The findings of a trial court on disputed questions of fact are always presumptively right, and though, under our statute, not as controlling upon this court as the verdict of a jury, must stand, unless the evidence clearly preponderates...