City of Deadwood v. Hursh

• Decision Date: 14 December 1912
• Citation: 138 N.W. 1122,30 S.D. 450
• Parties: CITY OF DEADWOOD v. HURSH.
• Court: South Dakota Supreme Court

30 S.D. 450

138 N.W. 1122

CITY OF DEADWOOD

v.HURSH.^†

Supreme Court of South Dakota.

Dec. 14, 1912.

Appeal from Circuit Court, Lawrence County; William G. Rice, Judge.

Action by the City of Deadwood against Christopher S. Hursh. From a judgment for plaintiff, defendant appeals. Affirmed.Hayes & Heffron, of Deadwood, for appellant.

Norman T. Mason, of Deadwood, for respondent.

WHITING, J.

In the city of Deadwood, S. D., there is a street known as Main Street running north and south, and running from it toward the west is a narrow street known as Gold street. On the south side of Gold street and west side of Main street there is standing a brick building belonging to the defendant, the north and east walls of which conform to the lines of the said streets. On the north side of this building, and adjoining a part of the north wall of same, there is a 3-foot areaway extending from the sidewalk, which runs along the north side of said building, down to and connecting with the basement of such building. Above this areaway there is a stairway connecting said sidewalk with the second story of this building. It will thus be seen that the areaway and stairway are both situated in and upon what would be a part of said Gold street, providing the south boundary line of Gold street is straight. Plaintiff brought this action, claiming that such areaway and stairway occupied a portion of such street, and were, for such reason, a public nuisance; and, in its prayer for relief, it asked for the abatement of such nuisance. The defendant denied that Gold street ever included the space occupied by such areaway and stairway. The cause was tried to the court and jury. At the close of all of the testimony, both parties moved for a direction of verdict, and the trial court directed a verdict in favor of the plaintiff. It is from the judgment entered upon such directed verdict that this appeal is taken.

[1] The only question presented for our determination is whether the decision of the trial judge in directing a verdict was against the clear preponderance of the evidence. If not, it must stand. Durand v. Preston, 26 S. D. 222, 128 N. W. 129. No useful purpose could be subserved by the reproduction of the evidence in this opinion. We think such evidence fairly proves the following: As early as the year 1877 there was a public street conforming in location to what is now Gold street. In 1879 a wooden building stood where defendant's building now stands, and the street along the north side thereof was in use. Defendant's title to the land upon which his building stands is derived through a chain of deeds, not one of which describes the land occupied by the areaway and stairway. The first transfer of which evidence was received was one dated February 24, 1879, which conveyed a tract 25 feet by 100 feet in size. The building then upon the premises burned down in 1879, and the present building was erected in 1880,...