Rhodes v. City of Aberdeen, s. 9206

• Decision Date: 20 November 1951
• Docket Number: 9207 and 9208,Nos. 9206,s. 9206
• Citation: 74 S.D. 179,50 N.W.2d 215
• Parties: RHODES et al. v. CITY OF ABERDEEN et al. CAMPBELL et al. v. CITY OF ABERDEEN et al. REESE et al. v. CITY OF ABERDEEN et al.
• Court: South Dakota Supreme Court

Page 215

50 N.W.2d 215

74 S.D. 179

RHODES et al. v. CITY OF ABERDEEN et al.

CAMPBELL et al. v. CITY OF ABERDEEN et al.

REESE et al. v. CITY OF ABERDEEN et al.

Nos. 9206, 9207 and 9208.

Supreme Court of South Dakota.

Nov. 20, 1951.

F. W. Noll, B. M. Williamson, Aberdeen, for appellants.

Van Slyke, Agor & Bantz, Aberdeen, for respondents.

BURNS, Circuit Judge.

Three separate actions were brought by the plaintiffs and respondents against the City of Aberdeen, defendant and appellant, for judgments declaring resolutions of the City of Aberdeen annexing respondents' properties to the City of Aberdeen invalid and permanently enjoining the city from attempting to enforce the resolutions or taking any proceedings thereunder. The trial court held the resolutions invalid and in two of the cases permanently enjoined the city from taking further proceedings thereunder. In the Rhodes case, the trial court permanently enjoined the city from attempting to bring the Rhodes property within the city.

By stipulation and order of the court, the three cases, herein referred to as the Campbell, Rhodes and Reese cases, were consolidated for briefing and argument and are here considered together.

By resolutions adopted, published and filed with the required formalities, the City Commission of the City of Aberdeen, purporting to act under the provisions of SDC 45.2906, annexed the property of the respondents hereinafter described. A question common to the three cases is whether the properties so annexed are 'lots laid off and platted adjoining any municipality' within the meaning of SDC 45.2906.

The Campbell and Rhodes properties lie north of 15th Avenue N.E. and east of Main Street produced north. At the time of the filing of the first plat of Elmwood Acres, 15th Avenue N.E. was part of the north boundary line of Aberdeen. The first plat of Elmwood Acres was filed in the office of the Register of Deeds of Brown County on March 30, 1938. This plat was not submitted to nor approved by the City Commission of Aberdeen under SDC 45.2806. Elmwood Acres is a tract 767.62 feet east and west by 744.1 feet north and south. It was platted into four lots. Lot 3 is a street tract 34 feet in width on the east side of the platted tract. Lot 4, 12.1 feet in width, was dedicated for street purposes along the south side of the platted tract and adjoining 15th Avenue for its entire length. Lot 1 was platted 150 feet along Main Street produced north and adjoining the street Lot 4 on the north 300.66 feet. All of the remainder of Elmwood Acres was platted as Lot 2.

Later, two plats of Elmwood Acres were filed in the office of the Register of Deeds for the purpose of platting Lot 2 into smaller tracts. These plats were not submitted to nor approved by the City Commission. Then on September 25, 1946, a plat described as the plat of the subdivision of Lot 2 of Elmwood Acres Addition to Aberdeen, South Dakota, was filed, which had been submitted to and was approved by the City Commission of Aberdeen. This plat was received in evidence as Ex. I. Attached is a photostatic copy of the plat as filed, except that the certificates by the surveyor, owner and treasurer and the approval of the city are not shown. The drawing shows Lots 1 and 3 and also Lot 4, which is not designated, and shows Plots A, B, C and D. Although these lots and plots are shown, they are not a part of the plat of the subdivision of Lot 2 of Elmwood Acres Addition to Aberdeen as approved by the City Commission. Such plat includes Plots E, F. G and H of Lot 2. Plot H adjoins Lot 1 on the east and street Lot 4 on the north, and is in dimensions 150 feet north and south by 66.3 feet east and west. Plot G is in dimensions 248 feet north and south by 666.96 feet east and west. It abuts on the north of Lot 1, Plot H, and Plots A to D.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The respondents in the Campbell case are the owners of Lot 1 and Plot G and the west half of Plot H of said Elmwood Acres, containing in all about 4.96 acres.

The respondents in the Rhodes case are the owners of Outlot A of the Northwest Quarter of Section 12, Township 123 North, Range 64 West, being a plot of ground 300 feet in width north and south, and 733.62 feet in length east and west, containing 5.05 acres. The south line of Outlot A when platted was approximately 744 feet north of the north line of 15th Avenue N.E. of the City of Aberdeen, which was then the north boundary of the corporate limits of the city.

The plat of Outlot A was filed in the office of the Register of Deeds on November 25, 1935, more than two years prior to the first plat of Elmwood Acres, the north line of which adjoins the south line of Outlot A. The area later platted as Elmwood Acres lay between Outlot A and the north boundary line of the City of Aberdeen. The plat of Outlot A was not submitted to nor approved by the City Commission of Aberdeen. Outlot A was not laid out into blocks and lots with streets and alleys.

The respondent Reese, in September, 1947, informed the then Board of Commissioners of Aberdeen that he desired to purchase Stucke's Outlot 4 for industrial purposes, provided he could be assure that such property would not be taken into the city within the foreseeable future. On September 29, 1947, the Board passed a resolution purporting to agree that the city had no intention at that time or in the foreseeable future of taking any part of said property into the corporate limits of the city. Reese thereupon exercised his option to purchase said real estate, and on or about March 25, 1948, replatted said Outlot 4 as Reese's Outlots, and filed such plat in the office of the Register of Deeds. It does not appear that such plat was ever presented to and approved by the Board of City Commissioners. The property so platted adjoined the city corporate limits on three sides. The plat included Outlots 1 to 5, varying in size from 2.13 acres to 13.54 acres. As a part of the transaction, Reese had conveyed to the city a strip of ground 66 feet wide running east and west across said Outlots, which strip was then held by the city under a lease, and was used for street purposes, and was known as 9th Avenue S.W. Reese constructed a concrete block manufacturing plant on one of the Outlots, which thereafter, on or about February 4, 1948, he sold to respondent Gage Bros. Concrete Materials, Inc. On October 17, 1948, the Board of Commissioners adopted a resolution purporting to extend the corporate limits to include Reese's Outlots.

The statutes of this state provide the following three methods by which additional territory may be annexed to a municipality:

(1) Including of contiguous territory upon petition of legal voters and owners and resolution of the governing body of the municipality as provided by SDC 45.2905.

(2) Inclusion of unplatted contiguous territory upon petition by the municipality to the Board of County Commissioners after notice and hearing as provided by SDC 45.2907.

(3) Inclusion of platted lots adjoining the municipality by resolution of the governing body of the municipality as provided by SDC 45.2906.

A municipality of this state has no power to extend its boundaries other than that granted to it by the Legislature. Such power of annexation as conferred on a municipality is an extraordinary power which must be exercised by a municipality in strict compliance with the statutes conferring such power. Weeks v. Hetland, 52 N.E. 351, 202 N.W. 807; Annotation 'Power to Extend Municipal Boundaries,' 64 A.L.R. 1341-1344; 37 Am.Jur., Municipal Corporations, Sec. 24, Pages 640-641.

SDC 45.2906 is as follows: 'Whenever there shall be lots laid off and platted adjoining any municipality and a plat of the same is of record in the office of the register of deeds of the proper county, the governing body may by resolution so extend the boundary of such municipality as to include such lots.' This section is a part of Title 45, 'Municipal Government,' and Chapter 45.29, 'Changing Corporate Limits'. The provisions of SDC 45.2906 have been a part of the statutory law of this state relating to the extension of the corporate limits of a municipality without change in substance since the adoption of the original source statute, Section 48, Chapter 24, of the Code of 1877. Like provisions were carried forward into the Revised Political Code of 1903 in Sections 1378, 1379 and 1462. Section 6560 of the Revised Code of 1919 is almost identical with SDC 45.2906. Such section is classified under Part 8 'Municipal Corporations,' Chapter 15 'Plats, Boundaries and Dissolution,' Article 4 'Changing Corporate Limits.'

In determining the meaning of the words 'lots laid off and platted' as used in SDC 45.2906, consideration must be given to SDC 45.2806, which provides:

'The provisions of this chapter shall apply to every addition to, or subdivision within, any city, town, or unincorporated town, provided that if the land or any part thereof included in any such addition or subdivision is within, adjoining, or contiguous to the boundaries of any city or town, the plat thereof, before being recorded, shall be submitted to the governing body thereof, which shall thereupon examine the same, and if it shall appear that the system of streets and alleys set forth therein conforms to the system of streets and alleys of the existing plat of such city or town, and that all municipal taxes and special assessments, if any, upon the tract or subdivision have been fully paid, and that such plat and the survey thereof have been executed according to law, such governing body shall, by resolution, approve the same, and the auditor or clerk shall indorse on such plat a copy of such resolution and certify to the same thereon.

'No plat of any such addition or subdivision so situated shall be entitled to record or be recorded unless the same bears a copy of such resolution and certificate of the auditor or clerk.'

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