City of Sioux Falls v. Murray

• Decision Date: 12 February 1991
• Docket Number: No. 17101,17101
• Citation: 470 N.W.2d 619
• Parties: CITY OF SIOUX FALLS, Plaintiff and Appellee, v. Arnold E. MURRAY and Elnor M. Murray, d/b/a Arnold Murray Construction, and Arnold Murray, Executor of the Estate of Elnor M. Murray, Deceased, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 619

470 N.W.2d 619

CITY OF SIOUX FALLS, Plaintiff and Appellee, v. Arnold E. MURRAY and Elnor M. Murray, d/b/a Arnold Murray Construction, and Arnold Murray, Executor of the Estate of Elnor M. Murray, Deceased Defendants and Appellants.

No. 17101.

Supreme Court of South Dakota.

Considered on Briefs Feb. 12, 1991.

Decided May 22, 1991.

Janet F. Brekke, Asst. City Atty., Sioux Falls, for plaintiff and appellee.

David Alan Palmer of Strange & Palmer, Sioux Falls, for defendants and appellants.

MILLER, Chief Justice.

In this appeal, we affirm a final judgment and order granting the city of Sioux Falls (City) a permanent injunction against Arnold E. Murray and Elnor M. Murray, d/b/a Arnold Murray Construction (a general partnership) (hereinafter referred to as Murray) and denying Murray's counterclaim. In its complaint, City sought permanent injunctive relief requiring Murray to remove dirt and sod placed on a sidewalk and to prevent Murray from covering, obstructing or removing such sidewalk. Murray filed an answer admitting that it owned the disputed property and that it had the sidewalk covered with dirt and sod. Murray counterclaimed, seeking an order requiring City to install a new sidewalk adjacent to the curb and to maintain such sidewalk during periods of snow removal at no expense to Murray.

FACTS

The sidewalk involved in this litigation is on private property owned by Murray. It was originally installed in 1953 at the specific request of then property owner Louis Bogdos, as part of a street-widening project. Bogdos paid for the installation of this sidewalk by means of a special assessment. Murray purchased the property from Bogdos in 1968 or 1969.

In 1984, a dispute occurred between City and Murray, when Murray refused to remove snow from the sidewalk. Murray was charged with violating ordinances which required landowners to remove snow from their sidewalks. Murray was ultimately acquitted of this charge. Murray subsequently filed a 42 U.S.C. Sec. 1983 action against City in federal court. The Eighth United States Circuit Court of Appeals ultimately ruled in City's favor. ¹

The sidewalk has been in continuous use by the public since 1953. Although he has owned the property since 1968 or 1969, Murray has not objected to the public use of the sidewalk (similarly Bogdos never so objected).

In 1989, Murray covered the sidewalk with dirt and sod, which prevented the public from using it. City then brought this action and the trial court held that (1) Bogdos clearly expressed an intent to set apart the sidewalk for public use; (2) it is a dedicated sidewalk; (3) City has authority to remove obstructions and keep it free from obstructions; (4) Murray breached its duty to City to keep the sidewalk free from obstructions; (5) pecuniary compensation is not adequate relief; and (6) the counterclaim should be dismissed. We agree with the trial court.

DECISION

THE TRIAL COURT DID NOT ERR IN GRANTING AN INJUNCTION.

Murray's principal assertion is that there is no statutory authority which allows for public dedication of private property for a sidewalk. Murray therefore relies principally on authority under SDCL ch. 31-3, which deals with location, change and vacation of highways. Murray overlooks the significance of those portions of SDCL chs. 9-30 (regulation of streets and public places), and 9-46 (sidewalk improvements), which concern municipal sidewalks. In those chapters, the legislature has given much authority to municipalities to deal with sidewalks within their boundaries.

SDCL 9-30-2 specifically grants municipalities the power to "regulate the use of sidewalks, ... to provide for cleaning the same, to prevent and remove obstructions and encroachments upon the same, to prevent injury to the same, to regulate or prevent any practice having a tendency to annoy persons frequenting the same[.]" Additionally, SDCL 9-30-5 grants municipalities the power to require landowners to remove snow and ice from sidewalks. In fact, in Murray, supra (see footnote 1), the Eighth United States Circuit Court of Appeals specifically noted that City's adoption of its ordinance was a reasonable discretionary action and was within the scope of City's authority.

It is settled law that the State "as principal and creator of municipal corporations has absolute control over them, unless some constitutional provision intervenes. Thus, the legislature may grant power to a municipality to regulate the use and improvement of streets." Hurley v. Rapid City, 80 S.D. 180, 185, 121 N.W.2d 21, 24 (1963). The same rationale applies to sidewalks. Wood v. City of Hurley, 29 S.D. 269, 136 N.W. 107 (1912).

As the trial court found, SDCL 9-46-1 through 1.2 grant City the authority to prescribe the width and materials of sidewalks and other specifications. The sidewalk here was built pursuant to City's specifications.

Additionally, SDCL 9-46-2 provides, in salient part: "Any owner of real property who fails to keep in repair the sidewalks in front of or along such property if he resides thereon, or if he does not reside thereon, to repair the same forthwith when notified, is liable to the municipality for any...