Sweatman v. Bathrick
| Decision Date | 03 June 1903 |
| Citation | 95 N.W. 422 |
| Parties | V. C. SWEATMAN et al., Plaintiff and appellant, v. DANIEL D. BATHRICK, Defendant and respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lawrence County, SD
Reversed
Opinion filed June 3, 1903
This is an action to quiet title to a strip of land in the city of Deadwood embraced within the limits of Lee street, as the lines of said street formerly existed and the lines as subsequently changed; being about 23 feet on Sherman street and about 30 feet on Lee street. The action was tried by the court without a jury, and, the findings and judgment being in favor of the defendant, the plaintiffs have appealed from the judgment alone; there being neither a motion for a new trial, nor a bill of exceptions. The only question presented, therefore, is, did the court draw proper conclusions of law from the findings?
The complaint is in the usual form, alleging that the plaintiffs are the owners of the premises in controversy, and that the defendant claims some right, title, and interest therein adverse to the plaintiffs, and that such claim of the defendant is without right. The defendant, in his answer, denies that the plaintiffs are the owners of the premises, and denies that his claim to the property is without right, and alleges that he is the owner in fee, in the possession, and entitled to the possession of a part of the premises in controversy. To this answer the plaintiffs filed a reply denying each and every allegation contained in the defendant’s affirmative defense, and alleging that the said defendant ought not to be allowed to set up or assert title to the said strip of ground mentioned in the said answer, but should be barred and estopped from claiming or asserting title thereto for the reasons therein specified. The court finds, in substance, that Lee street in the city of Deadwood connects Main street and Sherman street, the two principal streets of said city, and that the whole of said Lee street is embraced within the exterior boundaries of a placer mining claim patented to Henry Suessenbach and his associates prior to July 12, 1882, as mineral lot or survey No, 86; that on the last mentioned date the said Suessenbach and his associates caused to be surveyed thereon by one P. G. Ault a part of the streets and blocks of said city of Deadwood, and a plat of such survey to be made, thereafter known and referred to as Ault’s plat or map of the said city; that surveyor Ault attached his certificate and acknowledgment to this plat, but no acknowledgment or certificate of the owners thereof appears upon the same, and the said plat was recorded July 17, 1882. Subsequently, in the spring of 1884, after the flood of 1883, the people of Deadwood and others traveling thereon changed the line of travel along Lee street so as to deflect and swing a part of the said street, or the easterly half thereof, running from Whitewood creek to a junction with Sherman street about 90 feet south from where it had formerly joined said street as indicated on Ault’s plat; and Lee street, as thus changed, was traveled and used by the public and recognized by the city, while the former easterly and northerly half of Lee street was left unused by the city and the public, and treated as vacated, in 1886 the city engineer, P. L. Rogers, made a new plat of the said city, resurveying and renumbering the lots and blocks and portions thereof which had been platted by the said Ault as heretofore shown, and locating Lee street as then and up to 1888 recognized and traveled by the public. This plat was finished early in the year 1887, and afterwards conveyances were made, recognizing and referring to the same. This plat was approved by the city council January 3, 1888, and thereupon with certificates of the said P. L. Rogers and the mayor of the said city upon the face thereof, was suspended in the office of the engineer of the said city, where it has ever since been kept. There was, however, no evidence of any proceedings, by way of condemnation or otherwise, on the part of the said city, to acquire a title or easement to Lee street as taken and traveled after the flood of 1883, nor was there any evidence of protest or objection to the use of said street by or on behalf of the owners of the mineral lot No. 86. On October 15, 1888, one Jas. K. P Miller, representing himself as the owner of, or as having under his control, nearly all of the property along Lee street from Whitewood creek to Sherman street, made the city council of Deadwood a proposition, and accompanied the same with a plat attached thereto, offering to straighten said Lee street in accordance with the direction indicated upon the map presented, at his expense. The said proposition was accepted by the city council on the 15th day of October, 1888, and the said Miller was authorized to grade and improve said Lee street as proposed by him. Immediately after this action of the city council, the change in Lee street which had been authorized was made, and the street as changed, was thereafter used by the public. This change moved Lee street about 23 feet southerly from where it had been before. On the 3d day of January 1891, said Rogers, being the city engineer of said city of Deadwood, made a map showing the lots, blocks, and street lines of Lee street as it had been changed by the action of the city council before referred to. This plat was approved by the city council as the city map of the city of Deadwood on January 5, 1891. On the 11th day of November, 1887, Suessenbach and his associates sold and conveyed by deed
“that certain fraction of ground commencing at the northwest corner of Sherman and Lee streets running northerly along Sherman street 17 feet more or less, thence southwesterly along the southeasterly line of the present Star and Bullock lot 30 feet more or less to Lee street, thence in an easterly direction 30 feet more or less to the place of beginning.”
The court finds that other deeds were made by Suessenbach and his associates to different parties showing that the mineral claimants recognized Lee street and the Ault survey, and also the Rogers survey. From these findings the court concluded, as matters of law:
“The land platted as Lee Street by Peter L. Rogers in the plat referred to in finding No. 4 was never legally dedicated to the public by the owners thereof.
(2) The deed of Henry Suessenbach, Hugh McCaffrey, Daniel McLaughlin, and William R. Steele, of date November 11, 1887 referred to in finding No, 3, shows an intention not to convey to the middle of Lee street, as so indicated in the Rogers plat and hence did not convey anything south of the northerly line of said street as so platted by Rogers.
(3) There was nothing in the acts or conduct of said grantors named in second conclusions of law, either evidenced by deed or otherwise, that would constitute a recognition on their part of Lee street as platted by said Rogers,, or estop them from claiming title to the strip of land in dispute, or from executing. the conveyances under which defendant claims title in this action.
(4) Upon the change of street made by the city of Deadwood in accepting Miller’s proposition of October 15, 1888, the strip of land in controversy, which said city had theretofore been using by sufferance, and now relinquished, did not accrue to the plaintiffs, but remained as it had been all the time, the property of the grantors in the deed of November 11, 1887, named in the second conclusion of law, and they had good right to sell and convey the same.
(5) At the time of the bringing of this action, plaintiffs were the owners of all that part of the land in their complaint described lying north of the north line of Lee street, as indicated on Roger’s plat, but not to the middle of the street or south of said north line and defendant was the owner of the tract in controversy adjoining plaintiffs on the south side, and claimed in their complaint as an accretion, and there also further described, and as in defendant’s answer particularly described.
(6) Let judgment and decree be entered accordingly, dismissing the complaint of the plaintiffs upon the merits, and quieting the title of the tract in controversy in the defendant, with costs.”
It is contended by the appellants that, notwithstanding Lee street was not legally laid out or dedicated by the owners of the mineral claim, they had, by making conveyances of lots according to the Ault survey and to Rogers’ survey, recognized the existence of the street, and are now estopped from claiming that it was not a legal highway. Appellants further contend that by the deed to Star and Bullock, made by the mineral claim owners, in which the boundaries are designated as commencing at the northwest corner of Sherman and Lee streets, and running along said Lee street and Sherman street, carried the title of Star and Bullock to both the center of Lee and Sherman streets, and that the appellants are therefore entitled to the strip of land in controversy, as an accretion. Appellants further contend that the conclusions of law are clearly inconsistent with the findings of fact. The respondent, on the other hand, insists that the findings of the court that there was no legal dedication of Lee street, and that the defendant is not now estopped by any acts of Suessenbach and his associates from claiming the strip of land in controversy, are clearly consistent with the findings. It is further insisted by the respondent that the first conclusion of law of the court is, in effect, a finding of fact, and is therefore conclusive upon this court. This latter contention is clearly untenable, for the reason that it is evident from the language used that the learned circuit court was referring to legal dedication; that is, dedication provided for by statute. It will be noticed the language used by the court is, ...
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