Keen v. Fairview Township

• Decision Date: 26 May 1896
• Citation: 67 N.W. 623,8 S.D. 558
• Parties: KEEN, Plaintiff and respondent, v. BOARD OF SUP'RS OF FAIRVIEW TWP. Defendants and appellants.
• Court: South Dakota Supreme Court

8 S.D. 558

67 N.W. 623

KEEN, Plaintiff and respondent,

v.

BOARD OF SUP'RS OF FAIRVIEW TWP. Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Lincoln County, SD Hon. Joseph W. Jones, Judge Reversed Aikens & Brown Attorneys for appellants. O. S. Gifford Attorney for respondent. Opinion filed May 26, 1896 (See 8 SD 617, 67 NW 1151)

FULLER, J.

This appeal from an order continuing in force a temporary restraining order, during the pendency of an action to permanently enjoin the defendants from opening and constructing a public highway upon a section line within the township of Fairview, over and upon the premises of the plaintiff, While evidence was offered which must be considered, both parties seem disposed to treat the motion to vacate the temporary restraining order as a demurrer to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action; and the power of the township board, under the circumstances of this case to open and construct a section line highway wholly within the township, is conceded to be the controlling question of law for the determination of this court.

Respondent, who was plaintiff in the court below, made settlement under the United States land laws, and became a homestead entryman upon the land in question, on the 6th day of June, 1871, and thereafter made final proof, and obtained from the government the patent under which he now holds a portion of the premises, one acre of which, consisting of thirty-three feet along each side of the section line, is sought to be opened up and prepared for use as a public highway. As shown upon a diagram contained in the abstract, and from the averments of the complaint, and an affidavit offered in evidence, it appears that a road was surveyed across Fairview township, without reference to section lines, in the year 1870, and that the same has ever since been used as a highway and traveled by the public for more than 20 years prior to the commencement of this suit; that the proposed road upon the section line runs for some ,distance and entirely across respondent’s premises, parallel with said highway, and about eighty rods therefrom. Extending north from the sections in which respondent’s land is situated, the old road is for a distance of one mile upon the section line, and apparently within the sixty-six feet which appellants claim the right to open up, and use as a highway. While appellants have neither taken steps nor threatened to change, vacate or discontinue said old road, it is alleged that the contemplated road along the section line would interfere therewith, operate as a discontinuance thereof, and render the same useless. If considered essential, further facts will be stated and discussed with the law applicable thereto. No claim is made that any of appellants’ proceedings were irregular, or that the section line in question is not feasible, or that any natural obstacle or obstruction of any kind exists thereon other than the fences which respondent had placed there, and which appellants were attempting to remove for the purpose of opening the highway.

On the 26th day of July, 1866, congress passed an act by which the rights of all settlers upon the public domain were restricted as follows: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Rev. St. US § 2477, The foregoing congressional grant constitutes an unconditional conveyance of an indefeasible interest to the public, and every right or interest subsequently acquired under the general land laws has been taken subject thereto. Wells v. Pennington County, 307, 39 AmStRep 758 (1891), and cases cited. Prior and at all times since respondent entered and acquired an interest in the lands described in his complaint, the following legislative enactment was and is in full force:

“All section lines shall be and are hereby declared public highways as far as practicable; provided that nothing in this act shall be so construed as to interfere with existing highways in the settled portions of the territory.”

Comp, Laws, § 1189; Sess. Laws 1871. At the time of the passage and approval of this section (January 12, 1871), all territorial roads, unless otherwise specified, were, by express enactment (Chap, 72, Laws 1862), required to be 80 feet in width; but, by Sec. 1190 of the Compiled Laws, the board of county commissioners were authorized to vacate or change said roads within their respective counties as provided by the next section (1191), which, in effect, declares that all public highways along section lines shall be 66 feet wide, taken equally from each side of the line, except territorial roads located by the legislative assembly within the respective counties, which may be changed or vacated by the county commissioners, as provided in the preceding section, subject, however, to the limitations of Sec, 1189 in case of an interference with existing highways in the settled portions of the territory. The evident legislative scheme and intention were to conform, so far as practicable, our public roads to the section-line system, wherever it could be done without substantial interference with highways existing in the settled portions of the territory at the time of the passage of the act of 1871; and the word “interfere,” as used therein, when construed in its proper relation and with reference to the purpose for which it was employed, should be liberally construed. Whether such an old road, upon a section line, 80 feet in width, could be reduced to 66 feet, or be changed to meet the requirement that 33 feet shall be taken from each side of the section line, or where in close proximity be made to conform thereto, would constitute an interference, in contemplation of the statute, need not at this time be determined. From the allegations of the complaint, and the evidence offered in support thereof, it affirmatively appears that the old road therein mentioned had not been open and in use as such during 20 years next preceding March 9, 1883; and the same could not, therefore, become an established highway by prescription, within Sec, 1216 of the Compiled Laws; and it was therefore incumbent upon respondent to plead and prove that the proper authorities had legally established said road in a settled portion of the territory, prior to March 12, 1871, when Sec. 1189 became a law.

The contention of counsel for respondent that the old road in question was...