Klosterman v. City of Elkton

• Decision Date: 28 July 1928
• Docket Number: 5634
• Citation: 53 S.D. 324,220 N.W. 910
• Parties: C. H. KLOSTERMAN et al., Plaintiffs and respondents, v. CITY OF ELKTON, Defendant and appellant.
• Court: South Dakota Supreme Court

53 S.D. 324

220 N.W. 910

C. H. KLOSTERMAN et al., Plaintiffs and respondents,

v.

CITY OF ELKTON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Brookings County, SD Hon. W. N. Skinner, Judge File No. 5634—Affirmed E. A. Berke, Brookings, SD Attorneys for Appellant. Alexander & Alexander, Brookings, SD Attorneys for Respondents. Opinion filed July 28, 1928

MISER, C.

Plaintiffs, respondents herein, petitioned, in compliance with section 6555, Rev. Code 1919, to have their lands excluded from the limits of the city of Elkton. These lands consist of 159 acres in the southwest corner of the city. Upon the failure of the governing body of such city to grant the request, respondents instituted proceedings in Circuit court. The circuit court rendered judgment excluding said lands. The city appealed; and upon appeal, the judgment of the circuit court excluding the lands was reversed. 46 SD 136, 191 N.W. 341. At a plat of the entire city appears. The plat on page 137 of 46 SD does not show the north one-third of the city. A reference to said opinion and said plats will assist in the understanding of the relative location of respondent’s land and the residential and business portion of appellant city. After reversal by this court, the case was again tried in circuit court, and again the circuit court excluded respondent’s land. This judgment was based on findings that said land was agricultural land and for many years had been used exclusively for fanning purposes; that neither the land nor the owners thereof nor the residents thereon received any benefit by reason of the land being included within the corporate limits; that the city received no benefit by retaining the land except tax benefit; that said land was not necessary nor useful to the city for any municipal purposes, nor that, if a sewer were established, would it be on or near the premises; that the city maintains no sidewalks nor hydrants within 1,500 feet of the residence of respondents on the land; that the land is not necessary for the extension of said city nor necessary thereto for sanitary or police protection; that respondents also suffered detriment by having their lands retained within the city limits by reason of certain restrictive ordinances prohibiting the keeping of swine and subjecting the keeping of other live stock to unreasonable restrictions, by reason of which and a confiscatory tax burden, respondent’s land has substantially depreciated in market value.

The foregoing findings are supported by the evidence; although some difference will be observed between the foregoing findings and the statement of the facts in the opinion in 46 SD 136, 191 N.W. 341. It is also true, as stated in that opinion, that the residence of respondents is located in close proximity to the school and to the residence portion of the city; and a casual inspection of the plat might lead; to the conclusion that this land of respondents might, in the future, be needed for residence purposes. The evidence in this case discloses, however, that the land would remain in the school district even though excluded from the city, and that, in all that part of the city which lies west of the Chicago, Rock Island & Pacific Railway, where respondent’s land lies, there were only two residences, of which respondents’ was one; that all the platted portion of the city is east of the right of way; that in going from respondents’ residence to any other residence in the city except one, it was necessary to cross the railway tracks; that none of the churches or mercantile establishments were then located on the west side of said railroad tracks; and that, except for the railroad stockyards, all the land on that side of the tracks was then used for purely agricultural purposes; that between respondents’ home and the nearest residences the railway right of way was fenced on both sides; that between respondents’ residence and the platted portion of the city the city dump was located; that the nearest street light to the north was 60 rods away and the nearest to the east was 80 rods; that, by an air line, it was 1,400 feet from the nearest hydrant to respondents’ residence, and that it would take 1,508 feet of fire hose to reach it, and this would necessitate going over or through three fences and over the railroad tracks before reaching respondents’ land—yet respondents’ tax bill contains a levy of 14.376 mills for city purposes exclusive of schools. Furthermore, the population of the city was 578 in 1900, 742 in 1910, 872 in 1920, and there remains within the city much platted, unoccupied land, more desirable for residence purposes and adequate to care for the city’s growth for a long time.

Under the title of “Municipal Corporations,” in 43 C. J. 121, we find the following:

“Under statutes authorizing severance of territory, but not prescribing the conditions therefor, or providing generally that exclusion of territory shall be ordered where the court finds that the request of the petitioners therefor ought to be granted and can be without injustice to the inhabitants or persons interested, severance has been held proper [Lorimor v. Lorimor, 196 Iowa 774, 195 N.W. 199; Thiel v. Alexandria, 171 N.W. 209; Johnson v. Castlewood, 168 N.W. 124; Pelletier v. Ashton, 81 N.W. 735] or improper [In re Union, 177 Iowa 402, 159 N.W. 178; In re Leroy, 135 Iowa 562, 113 N.W. 3.47; Christ v. Webster City, 105 Iowa 119, 74 N.W. 743; Smart v. Wessington Springs, 199 N.W. 468; Kreger v. Clear Lake, 195 N.W. 498; Klosterman v. Elkton, 191 N.W. 341] under the facts and circumstances of particular cases, after giving proper consideration to such matters as questions of taxation, the...