Lawrence v. Ewert

• Decision Date: 07 January 1908
• Parties: LAWRENCE et al. v. EWERT et al.
• Court: South Dakota Supreme Court

114 N.W. 709

21 S.D. 580

LAWRENCE et al. v. EWERT et al.

Supreme Court of South Dakota

January 7, 1908

Appeal from Circuit Court, Sully County.

Action by Henry J. Lawrence and another against Adolph Ewert and another. From a judgment for plaintiffs and an order denying a new trial, defendants appeal. Affirmed.

Haney J., dissenting.

John Sutherland and D. M. March, for appellants.

John Hughes and A. C. Byrum, for respondents.

CORSON J.

This is an action instituted by the plaintiffs against the defendants to enjoin them from fencing up certain section lines in Sully county. The case was tried by the court without a jury, and findings and judgment being in favor of the plaintiffs, the defendants have appealed. A number of errors are assigned but the two that it will be necessary to consider and discuss are (1) that the board of county commissioners had failed to legally establish the highways on the section lines obstructed by the defendants; and (2) that the court was not authorized to enjoin the defendants from obstructing the section lines in this form of action.

It appears from the findings of the court that in April, 1890 the board of county commissioners of Sully county declared that all section lines in Sully county should be public highways, and the road overseers of that county were instructed to give notice to all persons obstructing section lines to remove such obstructions. The proceedings were taken by the board upon the petition of about 170 residents of Sully county after a committee of the board had determined and reported that highways upon said section lines were practicable. The road supervisor for the section of the county in which the section lines were obstructed by the defendants duly notified them to remove their fences and obstructions from such section lines, but they refused to do so, claiming that highways upon said section lines had not been legally established, and they had the lawful right to extend their fences across the same. Counsel for appellants contend that highways on section lines can only be established as provided by section 1623 of the Revised Political Code, which provides as follows: "The board of county commissioners has power to establish, change and vacate highways upon section and quarter section lines when the initial and terminal points and the course of the highway can be clearly described, without the appointment of viewers or the services of a surveyor; but in all other respects the proceedings therein shall be governed by the provisions of the preceding article relating to the establishment, vacation and change of highways not on such lines." The proceedings to establish a highway not on any section or quarter section line is provided in section 1611, which reads as follows: "Whenever twelve freeholders of the county, six of whom shall reside in the immediate neighborhood, shall petition the board of county commissioners for the location, vacation or change of any public highway other than on section lines, such board, if they shall be satisfied that notice of such application has been given by publication three weeks successively in a newspaper published in the county, or by posting up notices in three of the most public places in the neighborhood of such highway or change at least twenty days before the meeting of the board at which such petition is to be presented, shall appoint three persons to view such highway." The following sections prescribe the manner of proceeding to be taken in locating and opening such highways, and they further contend that the highways were not established as provided by these sections. It appears from the record in this case that the proceedings prescribed by section 1611 were not complied with, as no petition was presented by twelve freeholders, six of whom were shown to reside in the immediate neighborhood of the proposed highway, and no notice was given of the contemplated proceedings of the board as provided in section 1611; and hence said board had no jurisdiction to make the order establishing said highways. But, in the view we take of the case, the proceedings provided in sections 1611 and 1623 were not required to be taken, in order to establish highways on the section lines in that county.

In 1866 Congress declared: "The right of way for the construction of highways over public lands not reserved for public use, is hereby granted." Rev. St. U.S. § 2477 [U. S. Comp. St. 1901, p. 1567]. Subsequent to this grant by the United States in 1868 the territorial Legislature passed an act containing sections 1611 and 1623 above quoted; and by an act approved January 12, 1871 (Laws 1870-71, p. 519, c. 33), declared "that hereafter all section lines in this territory shall be and are hereby declared public highways as far as practicable." This was carried into the Revision of 1877 (Rev. Codes 1877, p. 125, c. 29), and there was added thereto the two following sections: Section 2: "The board of county commissioners of each county shall have power to vacate or change the highways within their respective counties located by the legislative assembly as herein provided." Section 3: "The public highways along section lines as declared by the first section of this chapter shall be 66 feet wide and shall be taken from each side of said lines unless changed as provided in the preceding section." It will be observed in the act of 1871 that it is declared "all section lines shall be, and are hereby declared, public highways as far as practicable and it will be further observed by section (3) the public highways along section lines as declared by the first section shall be sixty-six feet wide and shall be taken equally from each side of said lines." Section 1623, in substance the present Revised Code, was enacted by the territorial Legislature and approved December 25, 1868 (Laws 1868-69, p. 199, c. 9), about two years prior to the enactment of the law declaring all section lines to be public highways; and, in the view we take of the case, that clause of section 1623 "establishing" highways was in effect repealed by implication so far as it provided for establishing highways on section lines, and remains in force, and is operative as to the power of a board of county commissioners to "change and vacate" highways upon section lines. Of course, the revisers were required to incorporate all sections of the various legislative enactments not specifically repealed into the Codes, as it was not competent for them to determine what parts of sections were or were not repealed by implication. It will be observed that by the act of 1871 the lawmaking power has clearly expressed its intention in language susceptible of but one construction. The expression, "all section lines shall be and are hereby declared public highways as far as practicable," was evidently intended to make every section line in the then territory and now state a highway over which the people of the state would have an easement and right of way subject to the qualifications therein contained for the purpose of passing from one section of the state to another. Declaring section lines "public highways" means that they are roads which every citizen has a right to use. Webster in his International Dictionary defines a highway as follows: "A road or way open to the use of the public; a main road or thoroughfare." And Bouvier defines a highway as follows: "A passage, road, or street which every citizen has a right to use." See authorities cited by Mr. Bouvier; 15 A. & E. Ency. of Law, 350-351-352-353. It will thus be seen that the term, "public highway," means more than a right of way over which a public highway may be established, and that it is a passage or road which "every citizen has a right to use." The Legislature evidently intended that the term "highway" as used in the law of 1871 should have the ordinary meaning, and that section lines throughout the territory as far as practicable, and not interfering with the then existing highways in the settled portions of the territory, should be open to the use of the public, and no action of boards of county commissioners or supervisors of townships is required to establish or open such highways as are practicable on section lines. The highways so established by the legislative authorities cannot lawfully be obstructed by private citizens until changed or vacated in the manner provided by law. It follows, therefore, that the "highways" obstructed by the defendant by the building of fences across the same was in violation of law.

The construction of the congressional grant and the act of 1871 was fully considered by this court in Wells v. Pennington County, 2 S.D. 1, 48 N.W. 305, 39 Am. St. Rep. 758, in which this court held: "Section 2477, Rev. St. U.S. [U S. Comp. St. 1901, p. 1567], which provides, 'that the right of way for the construction of highways over public lands not reserved for public use is hereby granted,' is a general grant or dedication, without reservation or exception, of the right of way over public lands for highway purposes; and the territorial laws, being now sections 1189, 1191, Comp. Laws 1887, providing 'that all section lines shall be and are hereby declared public highways as far as practicable,' and 'that the public highways along section lines, as declared in section 1189, shall be sixty-six feet wide, and shall be taken equally from each side of said lines,' is an acceptance of the congressional grant, which became operative upon the date of its enactment. *** The act of Congress giving the right of way for the construction of highways over public lands, and the territorial law declaring all section lines, as far as practicable, to be public highways, and designating such highways to be 66 feet wide, are...