City of Colome v. Von Seggern Bros.
| Decision Date | 28 January 1930 |
| Docket Number | 6947 |
| Parties | CITY OF COLOME, Appellant, v. VON SEGGERN BROS. & LUDDEN, A Corporation, Respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Tripp County, SD
#6947—Reversed
H. O. Lund, Colome, SD
Attorney for Appellant.
W. J. Hooper, Gregory, SD
Attorney for Respondent.
Opinion filed Jan 28, 1930
Defendants at all times material to this action have been the owners of block 28 in the city (formerly town) of Colome. The block is substantially in the form of a right-angled triangle, with the hypotenuse bounding upon Elm street. An alley runs north and south through the block, opening at its north end upon Elm street, which runs in a direction from southeast to northwest, parallel to and adjoining the right of way of the Chicago & Northwestern Railway Company’s track.
In March, 1911, the board of trustees of the town of Colome undertook to vacate the alley and that portion of Elm street bordering on block 28. Defendants thereupon erected a lumber shed costing several thousand dollars on block 28, the shed extending over and upon portions of the street and alley supposedly vacated, and defendants have used the premises ever since as a part of their lumber yard. In 1928, in consequence of a public highway being located over a route which required the use of Elm street to make a straight road at this point, the city commenced this action to compel the removal of defendant’s lumber shed, in so far as it obtrudes upon the street and alley.
Defendant answered, admitting in substance the allegations of the complaint, and as an affirmative defense set up the vacation of the street and alley, by an ordinance which contained an emergency clause dispensing with publication of the ordinance; alleged that the ordinance was adopted for the purpose of inducing defendant to go into business in the town, and to erect its lumber shed as it did; that is constructed the shed upon a solid concrete foundation, at a cost of several thousand dollars, in reliance upon the action of the board; that it had occupied the premises ever since, and no protest or objection of any kind was ever made, either by the city or by any resident or taxpayer thereof, until the commencement of this action; that to remove any portion of the shed from the street or alley would absolutely destroy the shed; that the portion of the street and alley attempted to be vacated was never used by the traveling public; that Elm street and the alley both terminate at the north line of block 28, and have no connection with any road or street beyond that line, and that the city is estopped from now claiming that the vacation was invalid.
Plaintiff demurred to the answer on the ground that it stated no defense, and a stipulation was made between the parties that the court should enter judgment for the party in whose favor decision on the demurrer was made. Written briefs were served and filed by the attorneys for plaintiff and defendant, and upon consideration thereof the court overruled the demurrer and entered judgment that the action be dismissed on the merits, from which judgment plaintiff appeals. It is conceded that the ordinance purporting to vacate the alley and part of Elm street was never either posted or published but it contained a declaration of emergency. Plaintiff contends that the subject-matter of the ordinance showed on its face that it was not the subject of an emergency clause, and, further, that the public streets of a city or town cannot be vacated to serve purely private purposes. Neither in the ordinance itself, nor anywhere in the answer is there any claim or statement that the ordinance is necessary “for the immediate preservation of the public peace, or the public health or safety.”
Counsel for respondent contends that whether there is in fact an emergency, which will bring an ordinance into operation without publication, is a matter which is to be...
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