Evans v. King

• Citation: 230 N.W. 848,57 S.D. 109
• Decision Date: 20 May 1930
• Docket Number: 6998.
• Parties: EVANS v. KING et al. [*]
• Court: Supreme Court of South Dakota

230 N.W. 848

57 S.D. 109

EVANS v. KING et al. ^[*]

No. 6998.

Supreme Court of South Dakota

May 20, 1930

Appeal from Circuit Court, Gregory County; J. R. Cash, Judge.

Action by Don Carlos Evans against R. C. King and others, as officers of the City of Dallas. Judgment for plaintiff, and defendants appeal.

Reversed.

Geo. A Buffington, of Dallas, for appellants.

W. J Hooper and O. E. Ford, both of Gregory, for respondent.

BROWN P. J.

Ordinance No. 63 of the city of Dallas provided that no person should move any buildings on or across any street or alley of the city without first procuring a permit in writing therefor from the governing body of the city signed by the mayor and city auditor, and that before issuing any such permit a bond in the sum of $1,000 should be given by the applicant conditioned for the payment of all damages caused by such moving.

Plaintiff made proper application for a permit to move a house and other buildings over and across streets and alleys of the city and gave the required bond, but the city authorities refused to grant a permit. Plaintiff then applied for a writ of mandamus to compel the issuance of such permit. Defendant answered, alleging that the buildings sought to be removed were so situated that they could not be taken without damaging sidewalks, cutting down trees in the parking destroying electric light wires and equipment, and impairing service of light and power, and that it was the best judgment of the city council that the permit should not be granted. At the conclusion of plaintiff's evidence defendant called a witness to prove the allegations set up in the answer. Plaintiff objected to any evidence being given by the defendants for that purpose as being "incompetent irrelevant, and immaterial." The court sustained the objection, to which defendant excepted, and thereupon judgment awarding the peremptory writ of mandamus was entered commanding defendants to issue a permit for the removal of plaintiff's buildings through the streets of the city, from which judgment defendants appeal and assign as error the ruling of the court sustaining plaintiff's objection to the introduction of any testimony to prove the allegations of the answer.

Moving buildings across or along a city street is not an ordinary use of the street, and the privilege of so using the streets cannot be claimed as a matter of right, 44 C. J. 1038 City of Eureka v. Wilson, 15 Utah, 53, 48 P. 41; Edison El. L. & P. Co. v. Blomquist (C. C.) 185 F. 615. In a small city or town where the streets are not crowded by traffic to any great extent, the use of the streets for...