Lawson v. Viola Township
Decision Date | 06 December 1926 |
Docket Number | 5844 |
Citation | 210 N.W. 979,50 S.D. 555 |
Parties | A. W. LAWSON, Plaintiff and respondent, v. VIOLA TOWNSHIP, JERAULD COUNTY, Defendant and appellant. |
Court | South Dakota Supreme Court |
VIOLA TOWNSHIP, JERAULD COUNTY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Jerauld County, SD Hon. Frank B. Smith, Judge #5844--Affirmed J. H. Lammers, Wessington Springs, SD Attorney for Appellant. L. L. Lawson, J. E. Whiting, Woonsocket, SD Attorneys for Respondent. Opinion filed December 6, 1926
The respondent sued the appellant township, alleging that he was the owner of the northwest quarter of section 3 in said township, and that, in grading a road along the west side of said land, the township 'had taken from said land a strip outside the legal limits of the highway, thereby appropriating about 2 1/2 acres of respondent's land and tearing down certain of his fences.
The case was tried to the court, without a jury, and the court made findings favorable to plaintiff's contentions and entered judgment against the defendant township in the sum of $175. From such judgment and an order denying a new trial, this appeal is taken.
The sole contention raised by the assignments and briefs concerns the true location of the quarter corner, at the southwest corner of respondent's land. The evidence shows that a road, on or near the west line of this land, has been in use for over 30 years and had been graded a little, in low spots only. A county bridge had been erected on the line of this old road, crossing a small creek, a little south of the south line of respondent's land. Fences had been built many years ago about 2 rods east and 2 rods west of the center of this old road. The appellant township has recently graded a new road which coincides with the old road at the northwest corner of respondent's land, but is about 87 feet east of the center of the old road, at the south line of said. land. Respondent had a fence about 2 rods east of the center line of the old road and running parallel therewith. The construction of the new road removed part of this fence and left the southwest corner post thereof a considerable distance west of this new road grade. It is undisputed that this new grade renders the land occupied practically valueless for farming purposes.
One Schultz, a former owner of the respondent's land, testified that he saw the survey mounds and stakes at the northwest corner and the southwest corner of this land over 40 years ago, that he established the road between those mounds in 1884 by putting up stakes on the mounds and driving his team and wagon straight between them. He testified that when he did this the markings were still fresh, and that the old road followed the line thus established. He also testified that he set the corner post at the southwest corner of the land now owned, by respondent, and that he set said post about 2 rods east of the quarter corner mound. And he testified that said post was so set at the point where respondent's corner post now stands, between the new road and the old road. Another witness testified that he drew hay along the old road more than 20 years ago, and that what he believed to be survey pits were in the track of that old road about 2 rods west of the southwest corner of respondent's fence. Other witnesses testified to the long continued use of the old road and the presence of the fences on both sides thereof.
The government surveyor's field notes are in evidence. They show that a random line was run due north from the southwest corner of section 3, and that, at 80 chains and 25 links north of that corner, this random line intersected the township line 65 links west of the section corner established on said township line. From this section corner a line was run 28 minutes west of...
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Lawson v. Viola Tp.
...50 S.D. 555210 N.W. 979LAWSONv.VIOLA TP.No. 5844.Supreme Court of South Dakota.Dec. 6, 1926 ... Appeal from Circuit Court, Jerauld County; Frank B. Smith, Judge.Action by A. W. Lawson against Viola Township, a civil township in Jerauld County. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.[210 N.W. 979]J. H. Lammers, of Wessington Springs, for appellant.L. L. Lawson and J. E. Whiting, both of Woonsocket, for respondent.MORIARTY, C.The respondent sued the ... ...
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