Lawrence Cnty. v. Deadwood & G Toll-Road Co.

• Decision Date: 14 June 1898
• Parties: LAWRENCE COUNTY v. DEADWOOD & G TOLL-ROAD CO. et al.
• Court: South Dakota Supreme Court

11 S.D. 74

75 N.W. 817

LAWRENCE COUNTY

v.DEADWOOD & G TOLL-ROAD CO. et al.

Supreme Court of South Dakota.

June 14, 1898.

Appeal from circuit court, Lawrence county; A. J. Plowman, Judge.

Proceeding by Lawrence county to locate a public highway. From the action of the county commissioners ratifying the assessment for damages, Ellen Scott and the Deadwood & Gayville Toll-Road Company appealed to the circuit court, from whose decision in favor of the county they appeal. Reversed as to the company.Martin & Mason, for appellants. John R. Wilson, State's Atty., for respondent.

FULLER, J.

Pursuant to statute, and upon the requisite petition, plaintiff, by its commissioners, undertook to locate a public highway, not on a section or quarter-section line, extending from the “southwestern limits of the city of Deadwood, in Deadwood Gulch, thence up said gulch to Central City, all in the county of Lawrence, South Dakota.” Upon the return of a favorable report by the viewers duly appointed, defendants objected to the proposed highway, in the manner provided by section 1210 of the Compiled Laws, viz.: “If any person through whose land such highway or change may pass shall feel aggrieved thereby, such person may at any time before final action of the board thereon set forth such grievances by way of remonstrance, and the said board shall thereupon appoint three disinterested freeholders as reviewers, and assign a day and place for them to meet.” From the action of the county commissioners ratifying the reviewers' assessment of $500 damages in favor of each defendant, both appealed to the circuit court, where a trial to a jury resulted in the direction of a verdict against the Deadwood & Gayville Toll-Road Company, and a judgment in favor of Ellen Scott for $1,275 damages, from which both parties defendant appeal to this court.

The undisputed evidence shows that Ellen Scott is the owner of a distinct portion of the land in question; that in 1877 the Deadwood & Gayville Toll-Road Company,-though not incorporated until 1882,-under that name, constructed a valuable and costly toll road, extending over practically the route located by respondent as a free public highway, and has at all times maintained and kept the same in good condition. Upon the theory that said appellant is not an “owner,” in contemplation of law, the court rejected all testimony offered to show the existence of a franchise acquired by a substantial compliance with essential...