Larson v. Chicago

• Decision Date: 04 April 1905
• Citation: 103 N.W. 35,19 S.D. 284
• Parties: FRED LARSON, et al. President and Trustees of the Town of Summit, and the Town of Summit, Plaintiffs and respondents, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

19 S.D. 284

103 N.W. 35

M. &. St. P. Ry. Co.,(1905)

FRED LARSON, et al. President and Trustees of the Town of Summit, and the Town of Summit, Plaintiffs and respondents,

v.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Roberts County, SD Hon. James H. McCoy, Judge Affirmed John H. Perry Attorney for appellant. J. J. Batterton and Barrington & Lane Attorneys for respondents. Opinion filed April 4, 1905

FULLER, J.

The dominant question presented by this appeal from a judgment in favor of the plaintiffs and an order overruling a motion for a new trial is whether there has been an implied dedication and valid acceptance of that portion of Maple street which intersects the defendant’s right of way in the incorporated town of Summit, and which is now completely obstructed by a snow fence, depot, and platforms erected by the railway company in the year 1895. The material facts may be briefly stated thus: During the year 1881 appellant constructed its railroad directly westward across the Sisseton & Wahpeton Indian Reservation, which became subject to entry and settlement under the homestead laws of the United States about the 15th day of April, 1892, and, pursuant to the federal statute relating to town sites, the judge of the county court filed a declaratory statement of his intention to claim, for the use and benefit of its inhabitants, what now constitutes the duly established town site of Summit, situated on both sides of appellant’s right of way, and the same was duly surveyed, platted, and laid out into lots, blocks streets, and alleys, all of which have since been continuously claimed, used, and occupied for town site purposes. As shown by the recorded plat of the 80-acre tract constituting the town site, with reference to which the respective owner of lots and blocks have acquired unquestionable title, the streets all extend north and the south at right angles across appellant’s right of way, and over the main track and two side tracks within the corporate limits. Prior to the 15th day of April, 1892, the telegraph office, station house, and platforms of the company were located on what afterward became Beach street, one block west of Maple street, and after the reservation was opened for settlement all local shipments of merchandise and migrant movables were unloaded at that place. A witness who was a section foreman in that locality from 1882 until 1897, and is fully corroborated and by the undisputed evidence, testified in part as follows:

“The town of Summit was started in 1892, and the first crossing over the railroad tracks in the town was at Maple street. Travel commenced across there in the spring of 1892. We put the crossing down with planks. We laid planks next to the rail, and then filled in with dirt and cinder. Mr. Nelson, the road master, directed me to do this. I put up the crossing sign, ‘Look Out for the Cars,’ at about the time I put in the crossing. Mr. Nelson directed me to put up the crossing sign. There were three tracks there. The depot was a small building, and it was located west of there just a block. All tracks on that street were planked and fixed up that year. There was no other crossing over the railroad tracks within the limits of this town that year. Maple street is the street in which this building is located. It was then, and is now, the principal street of the town. Nearly all the travel out of the town in a northerly direction went across this crossing. There were two lines of snow fences north of where Maple street crossed the track, with openings. I cannot tell whether the opening was left at any one’s request or direction. These openings were in a direct line with Maple street north. This road extended directly north to the north line of the plat. The first line of snow fence was about 100 feet from the track, and the second line was about 150 feet, and these openings were left in the snow fences as long as Maple street was used.”

The uncontroverted testimony clearly shows that, until obstructed by the new depot in the fall of 1895, this Maple street crossing thus established was maintained by the company, and used by the public, as the exclusive thoroughfare for persons having occasion to cross the right of way in coming in, going out, or passing through the town, and practically all the business structures within the corporate limits were erected on Maple street with reference to such crossing. On behalf of the respondents, C. H. Lien testified as follows:

“I reside in Summit; have resided there a little over 10 years; came there in 1893. This crossing in dispute was open to travel then. I don’t remember whether all the tracks were planked or not. The road I took in going out of the town to the north was over this crossing. There are 15 business houses on the west side of Maple street, and 21 on the east side, and they represent all the classes of business—stores, banks, restaurants, barber shops and saloons. On other streets on the west side there is a livery barn, lumber yard, and blacksmith shop, and on the east side there is an implement dealer and shoe shop. The population of Summit is close to 500...