Lien v. Northwestern Engineering Co., 9240

• Decision Date: 30 July 1952
• Docket Number: No. 9240,9240
• Court: South Dakota Supreme Court
• Parties: LIEN et al. v. NORTHWESTERN ENGINEERING CO. et al.

Page 472

54 N.W.2d 472

74 S.D. 476

LIEN et al. v. NORTHWESTERN ENGINEERING CO. et al.

No. 9240.

Supreme Court of South Dakota.

July 30, 1952.

Bellamy, Eastman & Christol, Rapid City, for respondents.

Benj. D. Mintener, Asst. Atty. Gen., of South Dakota, for all appellants excepting Northwestern Engineering Co.

Hanley, Leedom & Driscoll, Rapid City, for the appellant, Northwestern Engineering Co.

SEACAT, Circuit Judge.

This is a suit in equity against the defendants instituted by the plaintiffs as resident citizens and taxpayers of the state of South Dakota, in their own behalf and in behalf of all others similarly situated, to cancel as illegal and void a certain purported easement granted by the South Dakota State Cement Commission to the defendant, Northwestern Engineering Company, a private corporation, over the state property of the cement plant, and to enjoin and restrain the said Northwestern Engineering Company from entering on or in any way using or attempting to use said purported right-of-way. From a judgment for the plaintiffs the defendants have appealed.

The salient facts as disclosed by the record and which gave rise to this suit are briefly as follows:

On November 8, 1949, and prior thereto, the state of South Dakota, in its governmental and sovereign power, was and still is the owner of certain real estate situated in Pennington County, South Dakota, described as the north half of the southwest quarter of section 34, township 2 north, range 7, east, B. H. M., on which real estate is located the South Dakota State Cement Plant; and that on said date the South Dakota State Cement Commission was in charge and control of said property in the manufacture and sale of the plant's cement products, under the authority contained in Sections 10 and 11 of Article XIII of the State Constitution, and Chapter 55.33 of the South Dakota Code of 1939, and acts amendatory or supplementary thereto; that on or about November 8, 1949, the South Dakota State Cement Commission executed and delivered to the defendant, Northwestern Engineering Company, the following grant with respect to the real estate of the state cement plant property:

'Easement

'Indenture made this 8th day of November, 1949, between the South Dakota State Cement Commission, hereinafter referred to as the Grantor, and the Northwestern Engineering Company, hereinafter referred to as the Grantee;

'Whereas, the grantor is the owner of the North half of the Southwest quarter of section thirty-four (34), Township Two (2) North, Range Seven (7) East, B. H. M., and

'Whereas, the grantee is desirous of a right-of-way across said land for the purpose of constructing a railroad,

'Now, therefore, in consideration of one dollar and other good and valuable consideration, the Grantor hereby grants to Grantee, its heirs and assigns, an easement right-of-way as shown on a certain plat filed with the Register of Deeds of Pennington County, South Dakota, in Book 2 of Plats, at page 238.

'If at any time Grantee herein abandons use of said right-of-way as a railroad and for railroad purposes, the right, title and interest of the said Grantee under this instrument shall revert to the Grantor, its successors and assigns.'

That the sole purpose and intent of the defendant, Northwestern Engineering Company, in acquiring said right-of-way was to construct a railroad thereon connecting a rock quarry operated by its affiliate with the main line of the Chicago and North Western Railway Company to haul the products of the quarry by rail, and that the Northwestern Engineering Company had entered upon the property of the state and had begun the construction of a railroad by excavating or otherwise constructing the roadbed, and that the right-of-way granted by the South Dakota State Cement Commission to the defendant, Northwestern Engineering Company, runs diagonally across the property, comprising 2.5 acres, and intersects the main road over the property of the cement plant to the south, leaving 8.25 acres of the state property between the south boundary line of the proposed right-of-way and the south boundary line of the state cement property; and that the defendant, Northwestern Engineering Company, threatens to continue the construction of a railroad on the land granted and maintain it indefinitely unless restrained.

It is the contention of all the defendants that even though the grant of the right-of-way by the South Dakota State Cement Commission exceeded their authority, the respondents cannot maintain this action because they neither allege nor prove substantial detriment or damage.

It is now the settled law of this state that a taxpayer or elector having no special interest may institute an action to protect a public right. State ex rel. Adkins v. Lien, 9 S.D. 297, 68 N.W. 748; State ex rel. Schilling v. Menzie, 17 S.D. 535, 97 N.W. 745; Weatherer v. Herron, 25 S.D. 208, 126 N.W. 244; White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397; Haines v. City of Rapid City, 59 S.D. 58, 238 N.W. 145; State ex rel. Bryant v. Dolan, 61 S.D. 530, 249 N.W. 923; State ex rel. Jensen v. Kelly, State Auditor, 65 S.D. 345, 274 N.W. 319; Security State Bank v. Breen, 65 S.D. 640, 277 N.W. 497; Danforth v. City of Yankton, 71 S.D. 406 and 416, 25 N.W.2d 50.

It is next urged by the appellants that a prerequisite to respondents' cause of action was a demand on and a refusal by the attorney general to bring the suit. There is no merit to this contention, as the attorney general has appeared in this action on behalf of all the defendants except the Northwestern Engineering Company, and by separate answer admits the execution of the so-called easement, but affirmatively alleges the same to be valid, and asks for a denial of plaintiffs' relief. White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397; State ex rel. Jensen v. Kelly, State Auditor, 65 S.D. 345, 274 N.W. 319.

In order to determine whether this is a proper case for the intervention of a court of equity by way of injunction to protect a public interest, it is necessary to examine this grant to determine what right or interest the appellant, Northwestern Engineering Company, obtained from the South Dakota State Cement Commission to this state cement property. Is it a grant running with the land and constituting an irrevocable servitude or other irrevocable interests in the land?

It must be borne in mind that this property belongs to the state of South Dakota and not to the South Dakota State Cement Commission.

The word 'grant' in this instrument means convey. The contract contains all the elements of an irrevocable servitude on the land in favor of the defendant, Northwestern Engineering Company, for the purpose of constructing and maintaining a...