Roche Realty & Inv. Co. v. Highlands Co.
| Decision Date | 02 April 1912 |
| Court | South Dakota Supreme Court |
| Parties | ROCHE REALTY & INVESTMENT COMPANY, Plaintiff and appellant, v. HIGHLANDS COMPANY, Defendant and respondent. |
Appeal from the Circuit Court, Brown County, SD
Affirmed
L. W. Crofoot, E. B. Harkin
Attorneys for appellant.
Taubman & Williamson
Attorneys for Respondents.
Opinion filed April 2, 1912
This is an action to enjoin the defendant from obstructing an alleged public highway, The appeal is by the plaintiff from a judgment in favor of the defendant, and an order denying the plaintiff's application for a new trial.
The defendant owns the N.W. 1/4 of section 12, township 123, range 64. The city of Aberdeen is partially situated in the S.W. 1//4 of the same section; the north boundary of the city being the south boundary of the defendant's land. Main street extends through the S.W. 1/4 of section 12, about 1,788 feet east of and parallel to the west line of the quarter. The plaintiff owns a half section directly north of the defendant's land. It is alleged in the complaint that continuing on a direct line north from the north end of Main street through defendant is land to the line between sections 1 and 12 is a strip of ground 80 feet in width, which has been in continuous and unobstructed use as a public highway for more than 20 years last past, with the knowledge and consent of the owners of the adjoining land; that the same was dedicated to public use by the owners of the quarter section through which it is located; that such dedication was accepted by the public and by the proper officers of the civil township of Aberdeen; and that the defendant has closed such strip of ground, threatening to keep it closed. Certain facts are stated intended to show the plaintiff's special interest in having the alleged highway kept open. It also is alleged in the complaint by way of estoppel that the plaintiff, who was about to open and grade a continuation of the alleged highway through its own land, inquired of the defendant if it intended to close the same, and was informed that it did not; and, that relying on such statement, the plaintiff proceeded to open and grade a highway one mile long at an expense of $300.
All these allegations are denied by the answer, wherein it is alleged that, when the defendant purchased its land, there was outstanding a lease to the civil township of Aberdeen, executed by its grantor, leasing a way over and across the quarter, and that such way was then used by the public under such lease and not otherwise. The learned circuit court found, in effect, that the plaintiff has not such an interest as entitled it to maintain this action, that no highway across the defendant's land was ever dedicated by the owners thereof, or sever established in any manner provided by law, that the use of the defendant's land as a public highway was at all times under a lease between the owner and the civil township of Aberdeen, and concluded that the plaintiff was not entitled to the relief demanded in the complaint. As the record discloses no errors relating to the admission or exclusion of evidence which could have prejudiced. any of the plaintiff's substantial rights, the only matter demanding attention is the alleged insufficiency of the evidence to justify the trial court's findings of fact.
If the public has the right to travel on the strip of ground in dispute, it was acquired by prescription or by dedication. Assuming that the doctrine of prescription is applicable to public highways anywhere, it is subject, in this state, to the following statutory provisions not heretofore interpreted by this court:
Rev. Pol. Code, § 1632. The first sentence of this section was in force when the state was admitted into the Union. Rev. Poi: Code 1877, c. 29, § 37; Comp. Laws 1887, § 1227.
The other provisions were first enacted in 1893. The later enactment expressly repealed all acts and parts of acts inconsistent with its provisions. It was entitled:
"An act to prevent the establishment of highways upon public lands belonging to the state, private lands, and on the right of way of railroads by user in the state of South Dakota."
Laws 1893, c. 100. It was enacted at a time when there were large areas of unoccupied land belonging to the state and to individuals, the topography of which permitted and invited travel in all directions. Persons walking or driving from one place to another usually select the most direct available route. The custom of "angling" across unoccupied land has prevailed since the earliest settlements. It still prevails. It evidently was the purpose of the Legislature to prevent the establishment of public highways by operation of this custom. The enactment was wise and timely. There is no valid reason why the public should. acquire the right to travel in any direction which suits its convenience, across private property, without compensation, simply because it is permitted to do so, where there is an established highway along every section line. It might have been contended with much force that the law of 1893 operated to repeal the former statute, but that question is not now material. The Legislature having incorporated the provisions of both statutes into the Revised Political Code of 1903 as one section, effect should be given, if possible, to all the language of the entire section; the first sentence being so interpreted as to harmonize with the plain and unambiguous meaning of the remaining portions. Hughes v. Lawrence Co. Board, 25 S.D. 480, 127 N.W. 613. This may be done by distinguishing the "public highways" of the first sentence from the "roads" or "ways" of the proviso, by applying the former to routes of travel whose inception was justified by some claim of right, and by applying the latter to routes of travel whose inception was not so justified.
Under the statute thus construed, the evidence clearly justifies the conclusion that the public has acquired no prescriptive right to the strip of ground in dispute. It conclusively shows that, when the public began traveling across the land now owned by the defendant, it was unoccupied prairie; that different routes were traveled at different times and seasons; and that the inception of the travel was without claim or color of right. Such travel, though continued for more than 20 years, cannot create a presumption that the alleged highway was originally established pursuant to law by proper authority, because the statute expressly declares that "no rights or benefits shall inure to the public or any individual" by the use of such a "road" or "way" as the one involved in this action. The plaintiff's claim of a prescriptive, right to travel across the defendant's land is precisely such a claim as the statute was designed to defeat.
Nor should the described strip of land be deemed a public highway, assuming the first sentence of section 1632 to be applicable, for the reason that the evidence is wholly insufficient to justify the conclusion that the same was used by the public as a...
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