Riverside Township v. Newton

• Decision Date: 22 June 1898
• Citation: 11 S.D. 120,75 N.W. 899
• Parties: RIVERSIDE TOWNSHIP, Plaintiff and appellant, v. ALFRED NEWTON, Defendant and respondent.
• Court: South Dakota Supreme Court

11 S.D. 120

75 N.W. 899

RIVERSIDE TOWNSHIP, Plaintiff and appellant,

v.

ALFRED NEWTON, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Clay County, SD Hon. E. G. Smith, Judge Reversed H. G. Tilton, Gamble & Dillon Attorneys for appellant. John L. Jolly, French & Orvis, Yankton, SD Attorneys for respondent. Opinion filed June 22, 1898

FULLER, J.

This proceeding to establish a highway upon a section line originated before plaintiff’s supervisors, and there resulted in an order opening the road, and awarding damages to the defendant, Newton, from which order he appealed to the circuit court, where a trial de novo was had, and a verdict of $400 damages returned in his favor, This appeal is by plaintiff, the township of Riverside, from an order overruling a motion for a new trial. In the year 1891 respondent purchased from the state 160 acres of school land situated on the north side of section 16, and for the road in question a strip thereof 33 feet in width extending along the entire north line is taken, together with an equal amount along the south line of section 9, the property of respondent lying immediately opposite. The question whether, in this state, all the boundary lines of section 16 and 36 are highways is fairly presented by an assignment of error relating to the holding of the trial court “that no such grant exists with reference to school sections,” and to its refusal to give the following, among other, similar instructions proposed by counsel for appellant:

“You are instructed that under the evidence and admissions in this case that there is a highway established by operation of law, two rods wide on the north line of the north half of the northeast quarter and the north half of the northwest quarter of section sixteen, belonging to Mr. Newton, and that no damages can be allowed for the use of said two rods for highway purposes.”

The congressional enactment of 1861, under which the territory of Dakota was organized, provides:

“That when the land in said territory shall be surveyed, under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered 16 and 36 in each township in said territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in the states hereafter to be erected out of the same.”

12 Stat. 243, § 14. In 1866, congress passed section 2477 of the Revised Statutes as follows: “The right of way for the construction of highways over public lands, not...