Stannus v. Heiserman
| Decision Date | 13 June 1949 |
| Docket Number | 9023. |
| Citation | 38 N.W.2d 130,72 S.D. 567 |
| Parties | STANNUS v. HEISERMAN et al. |
| Court | South Dakota Supreme Court |
Rehearing Granted Aug. 19, 1949.
Smiley & Clark, Belle Fourche, for appellant.
Clinton G. Richards, Deadwood, for respondents.
Plaintiff's complaint prays for an injunction restraining defendant from using a described roadway located in part on plaintiff's property situated in Lawrence and Butte Counties. The trial court, after trial, dismissed plaintiff's complaint on the merits on the ground that the evidence established an implied dedication of the roadway in question to public use. The appeal by plaintiff presents the question whether the evidence is sufficient to support an inference of implied dedication of the road as a public way.
It is settled that 'In an implied common-law dedication it is necessary that there should be an appropriation of land by the owner to public use by some act or course of conduct from which the law will imply such an intent.' Mason v City of Sioux Falls, 2 S.D. 640, 51 N.W. 770, 773, 39 Am.St.Rep. 802. And that 'Conduct on the part of the owner that is clearly expressive of an intention to dedicate usually amounts to dedication, if acted upon by the public in a manner which clearly justifies the inference of an acceptance.' Larson v. Chicago, M. & St. P. Ry. Co., 19 S.D. 284, 103 N.W. 35, 37. To prevent the establishment of highways on public and private lands by user, the legislature enacted Chapter 100, Laws of 1893, reading as follows: 'The continued use of any road or way heretofore traveled or which shall hereafter be traveled by the public across any of the public lands belonging to the state, or across the land of any private person, or upon and parallel to the right-of-way of any railroad company in this state, shall not be deemed to have constituted such road or way a legal highway, or a charge upon the town in which the same is situated; and no rights or benefits shall inure to the public or any individual by the use thereof.'
This statute has been re-enacted by our successive revisions and appears in substance as SDC 28.0104. Predicated thereon, this court has held that mere user will not support an inference of implied dedication. Roche Realty & Investment Company v. Highlands Company, 29 S.D. 169, 135 N.W. 684; First Church of Christ, Scientist, v. Revell et al., 68 S.D. 377, 2 N.W.2d 674 and Lacey v. Judge, 68 S.D. 394, 3 N.W.2d 115. '* * * what amounts to a dedication by implication depends upon the facts of the particular case, and no hard and fast rule can be laid down as a guide for the courts', Evans et al. v. City of Brookings 41 S.D. 225, 170 N.W. 133, 134.
The facts are not in dispute. The parties own adjoining ranches in the valley of Red Water Creek in Lawrence and Butte Counties. The roadway in question follows a somewhat irregular north and south course along a half mile of boundary line between eighty-acre tracts of the parties. Red Water winds across the south forty of both of these tracts from west to east. The ranch buildings of both parties are on the north side of the creek. The roadway leaves a gravel highway along the south side of the section, enters a gate in plaintiff's pasture at about the boundary line, swings east around a slough, returns to the quarterline, crosses the bridge over the creek and then countinues north to where one branch turns west through a gate to defendants' buildings and another branch leads northeast to plaintiff's buildings. For more than forty years traffic to and from the homes of the respective parties and points south of the creek has traveled this roadway. North of the buildings of the parties and paralleling the creek a power company maintains a canal. On occasions throughout the years, employees of the power company have come through this road to reach the canal and at times it has hauled construction material through there. Occasionally a neighbor immediately east or west has come through that way for some special reason. Although the court did not determine the exact location of the road, it appears that the bridge and some portion of the road overlaps the described common boundary line.
Following an unfortunate, and perhaps now much regretted, quarrel over unclosed gates, plaintiff brought this action to exclude defendants from his property.
The first picture of the road revealed by the record is as it appeared in 1903. The Calhoun brothers then owned the east eighty now owned by plaintiff and 'Yankee' Reed owned the west eighty now owned by defendant. The bridge across the creek was dilapidated and was used mostly for foot passage, but a road or trail extended from the buildings on the east eighty to and across the bridge and to the south through the pasture of a neighbor to the south on down what was known as Chicken Creek road. The east and west highway along the south side of the section had not been graded or opened and was little used. There was then a bridge across the creek on the west eighty now owned by defendants. Therefore this roadway was seldom used by the then owner Yankee Reed. Red Water then formed a loop to the south in the Yankee Reed south forty and he maintained a road extending from his buildings south into this loop and across a bridge he had constructed across the creek at the bottom of the loop. His road led out across the fields of the neighbors to the south and west. The then owners of plaintiff's ranch forded the creek if driving a light rig, but traveled the Yankee Reed road and bridge if they had a load to transport to or from the south.
In either 1903 or 1904 Red Water, while in flood, cut across the opening of the loop on the Yankee Reed ranch and left him without a bridge. Thereafter, in 1905, Mr. Cory, who had acquired plaintiff's ranch, with the assistance of an employee of Yankee Reed, erected a bridge in the location of the present bridge, and since that time the roadway in question...
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