Lusk v. City of Yankton

• Court: South Dakota Supreme Court
• Writing for the Court: McCOY, J.
• Citation: Lusk v. City of Yankton, 40 S.D. 498, 168 N.W. 375 (S.D. 1918)
• Decision Date: 25 June 1918
• Docket Number: 4296.
• Parties: LUSK v. CITY OF YANKTON et al.

168 N.W. 375

40 S.D. 498

LUSK v. CITY OF YANKTON et al.

No. 4296.

Supreme Court of South Dakota

June 25, 1918

Appeal from Circuit Court, Yankton County; R. B. Tripp, Judge.

Action by W. C. Lusk and others against the City of Yankton and another. From a judgment for the City, plaintiffs appeal. Affirmed.

Harry Kunkle and French, Orvis & French, all of Yankton, for appellants.

Joseph Janousek, of Yankton, for respondent.

McCOY J.

This action was brought to determine adverse claims of title to a certain parcel of land lying between the Missouri river and First street of Todd's plat of the city of Yankton, the same being a strip of land varying in width from 130 feet to 225 feet, 3 blocks in length, commonly known in the city of Yankton as the "levee." Findings and judgment were in favor of defendants, from which judgment the plaintiffs appeal.

Among other findings of fact the court found that for more than 40 years prior to 1914 the city of Yankton had been in exclusive, hostile, open, notorious, continuous, and adverse possession of said land, presumptively with the knowledge of plaintiffs' grantors and predecessors in interest. Appellant contends that the court erred in its conclusion of law that the defendant city of Yankton had acquired absolute title to said real estate by such adverse possession, for the reason that there are no findings of fact sustained by the evidence that would warrant or justify such conclusion of law. It appears from the evidence preserved in the record that the title to the tract of land comprising Todd's plat to the city of Yankton between 1860 and June 5, 1868 was in much doubt. On the 5th day of June, 1868, a patent for said land, including the strip of land in dispute, was issued to J. B. S. Todd; that on the 21st day of August, 1868, said Todd made and filed a plat dividing said tract of land into city lots, blocks, streets, and avenues, thereby dedicating the said streets and avenues to the public use of the city of Yankton, and on the said plat so filed on the 21st day of August all that strip of ground lying immediately south of the south end of blocks 2, 3, and 4, and extending to the Missouri river, was designated as First street, thereby making a wide street varying in width from 210 to 305 feet the said plat so filed on the 21st day of August contained no surveyor's certificate as to the correctness thereof as required by the then existing law. One week later, on the 28th day of August, 1868, the said Todd withdrew from record the said plat theretofore filed by him on the 21st day of August for the purposes of corrections and alterations, and on the said 28th day of August made and filed another plat duly certified by a surveyor as to the correctness thereof and with the alteration appearing thereon that immediately south of said blocks 2, 3, and 4 was a street 80 feet in width designated as First street, and thereby leaving the strip involved in this suit excluded and outside the plat then so filed by him. One of the contentions of respondent is that the land in question was by said plat filed on August 21st dedicated to the city of Yankton as the part of a street, and that the subsequent withdrawal of said plat and filing of another a week later could not and did not affect the dedication so made, and that thereafter the city of Yankton and the public accepted said dedication, and by reason thereof has ever since been the owner of and entitled to the use and control of the whole of said strip of land between the Missouri river and the south end of said blocks 2, 3, and 4. For the reason that the trial court has based the conclusions of law and judgment solely upon the findings of fact as to respondent's 40 years of exclusive continuous, adverse possession of said land, the question of said dedication growing out of the filing of said plats becomes immaterial and a matter not necessary to a proper determination of the issues involved on this appeal, and we shall therefore only consider the question of adverse possession and the title obtained thereby by respondent.

It appears from the record that as early as August, 1872, the city of Yankton commenced exercising open and notorious acts of ownership and control over the strip of land in question by leasing and giving licenses to many persons to occupy the same with storage houses and other buildings, by granting rights of way across the same, and by using parts thereof for gravel and sand pits and other purposes. Such open notorious, exclusive, and continuous acts of ownership and control by respondent, while possibly not lasting 40 years, were, however, continuous at all times from August, 1872, up to and including the year 1907, and being a period much longer than 20 years necessary to obtain full and complete title by adverse possession. We are therefore of the opinion, and so hold, that at the time of the beginning of this action the respondent city was the absolute owner by adverse possession of said land, and that the findings of the court in this relation were fully sustained by the evidence. It appears from the record that in the year 1907 one Josephine Moore, a daughter and heir of said Todd, acquired by deeds all the interest of all the other heirs of said Todd, then deceased, in and to the lands in question, and that she...