City of Rapid City v. Hoogterp

• Decision Date: 29 July 1970
• Docket Number: 10766,Nos. 10759,s. 10759
• Citation: 85 S.D. 176,179 N.W.2d 15
• Parties: , 44 A.L.R.3d 251 CITY OF RAPID CITY, a Municipal Corporation, Plaintiff-Appellant, v. Henry H. HOOGTERP, Ruth C. Hoogterp and Leonard Walla, Defendants-Respondents.
• Court: South Dakota Supreme Court

Page 15

179 N.W.2d 15

85 S.D. 176, 44 A.L.R.3d 251

CITY OF RAPID CITY, a Municipal Corporation Plaintiff-Appellant, v. Henry H. HOOGTERP, Ruth C. Hoogterp and Leonard Walla Defendants-Respondents.

Nos. 10759, 10766.

Supreme Court of South Dakota.

July 29, 1970.

Thomas P. Ranney, Rapid City, for plaintiff-appellant.

Sieler & Sieler, Rapid City, for defendants-respondents.

RENTTO, Judge.

The defendants Henry H. Hoogterp and Ruth C. Hoogterp, his wife, are the owners of a building located at 24 E. Main Street in Rapid City. Portions of the building are leased to the defendant Leonard Walla for business purposes. A land survey of the area made in 1967, in preparation for a program of improving and enlarging East Main Street, disclosed that defendants' building protruded into the street right-of-way. Plaintiff city thereupon instituted this suit to enjoin the obstructing portion of the structure as a nuisance.

In resisting the city's claim the position of the defendants is that their building does not encroach upon the street right-of-way. They base this on a survey of the ground which they had made and urge that the survey relied on by the city was erroneous. Additionally they urge that the city, because of its conduct, is estopped from claiming that their building encroaches upon the right-of-way. The court found that a portion of the building was in the right-of-way, but concluded that the city was estopped from having the nuisance abated.

Both parties appeal from the judgment. The city in #10759 complains that the court erred in holding that it was estopped. The defendants by their cross appeal #10766 contend that the court was in error in finding that their building protrudes into the right-of-way of East Main Street.

The building, apparently a two-story frame structure, was built about 50 years ago without any change in its size since that time. In 1955 it suffered a fire which necessitated some remodeling and repair. The portion which was found to protrude into the right-of-way is the open porch on the front of the building running east and west, together with an enclosed second story storage area built over it, supported by six columns. The survey made by the witness for the city, which the court accepted, established the encroachment to be 8.9 feet on the west portion of the structure and 8.8 feet on the east. Consistent with its conclusion of estoppel the court determined the south line of the area of encroachment to be the true south line of defendants' lot and awarded them title thereto.

Concerning the matter of nuisances generally, SDCL 21--10--1 declares that:

'A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

'(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;'

Our statutes provide that abatement is one of the remedies against any nuisance. SDCL 21--10--5. They further provide that 'No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.' SDCL 21--10--4. The estoppel which the court determined to be present in this case has the effect of making this latter statutory declaration inoperative.

The doctrine of equitable estoppel or estoppel in pais is bottomed on principles of morality and fair dealing and is intended to subserve the ends of justice. Security State Bank v. Gannon, 39 S.D. 232, 163 N.W. 1040. In considering the application of the doctrine of estoppel each case, in the nature of things, must stand on its own facts. Kraft v. Corson County, 72 S.D. 396, 34 N.W.2d 838. It seeks to accomplish that which is fair between man and man. First Church of Christ, Scientist v. Revell, 68 S.D. 377, 2 N.W.2d 674. It is one of those troublesome areas of the law where the difficulty is not in determining the governing principles, but in applying them to the facts.

This court has on several occasions indicated or recognized that the doctrine of estoppel is available against a municipal corporation. Missouri River Telephone Co. v. City of Mitchell, 22 S.D. 191, 116 N.W. 67; City of Deadwood v. Hursh, 30 S.D. 450, 138 N.W. 1122; Tubbs v. Custer City, 52 S.D. 458, 218 N.W. 599; City of Colome v. Von Seggern Bros. & Ludden, 56 S.D. 390, 228 N.W. 800 and Rhodes v. City of Aberdeen, 74 S.D. 179, 50 N.W.2d 215. However, estoppels against the public are little favored and should be used sparingly. They are applied against municipal corporations with caution and only when exceptional circumstances demand their application to prevent manifest injustice. 31 C.J.S. Estoppel § 141; 28 Am.Jur.2d, Estoppel & Waiver, § 129. The burden of establishing that such exceptional circumstances are present is on the party seeking the protection of the doctrine.

Because the disposition made of cases of this kind is dictated by the facts and circumstances of the particular case, the text statements concerning this field of law are largely generalizations. See 64 C.J.S. Municipal Corporations § 1753(c); 38 Am.Jur., Municipal Corporations, § 668. In McQuillin-Municipal Corporations, 3rd Ed., Revised, § 30.181, we find the following:

'While the doctrine of equitable estoppel is sometimes invoked in what are termed 'exceptional cases,' it is always applied, and wisely so, with much caution to municipal corporations in matters pertaining to their governmental functions. The basis of its application usually is not because of nonaction by municipal officers but because they have taken some affirmative action influencing another which renders it inequitable for the municipality to assert a different set of facts.'

More than municipal acquiescence in an obstruction should be required to give rise to an estoppel when the matter involved is a street easement in which the public has a vested interest. Kuehl v. Bettendorf, 179 Iowa 1, 161 N.W. 28...