Town of Colton v. South Dakota Cent. Land Co.

• Decision Date: 05 April 1910
• Citation: 25 S.D. 309,126 N.W. 507
• Parties: TOWN OF COLTON, Plaintiff and respondent, v. SOUTH DAKOTA CENTRAL LAND COMPANY et al., Defendant and appellant.
• Court: South Dakota Supreme Court

25 S.D. 309, 126 N.W. 507 (1910)

TOWN OF COLTON, Plaintiff and respondent v SOUTH DAKOTA CENTRAL LAND COMPANY et al.,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

S. H. Wright

Attorneys for appellants.

Bates & Parliman and J. E. McMahon

Attorneys for respondent.

Opinion filed April 5, 1910

HANEY, J.

In this action the decision of the learned circuit court was substantially as follows:

(1) That plaintiff is, and at all of the times herein mentioned was, a municipal corporation organized and existing as an incorporated town under and by virtue of the laws of the state of South Dakota.

(2) That the defendants South Dakota Central Land Company and South Dakota Central Railway Company and the Farmers' Elevator Company of Colton each is, and at all of the times herein mentioned was, a corporation organized and existing under and by virtue of the laws of the state of South Dakota.

(3) That on January 15, 1907, the board of trustees of said town established an ordinance containing these provisions:

"Section 1. It shall be unlawful for any person, persons, firm or corporation to keep or maintain within the district hereinafter described, in the town of Colton, any pen, building, yard, shed or inclosure wherein any cattle, sheep or swine are collected, kept or fed, by the owner, lessee or occupant of any property therein.

"Sec. 2. It shall be unlawful for any person, persons, firm or corporation to collect, keep or feed any cattle, sheep or swine within any pen, building, yard, shed or inclosure within said district.

"Sec. 3. Said district shall comprise all that part of the town of Colton, within the following boundaries, to wit: Bounded on the east by a line 780 feet east of Iowa avenue, on the south by a line 158 feet south of Sixth street, on the west by a line 450 feet west of Glenn avenue, and on the north by a line 680 feet north of First street.

"Sec. 4. Any person, persons, firm or corporation violating any of the provisions of this ordinance shall, upon conviction thereof, be fined in a sum not to exceed fifty dollars ($50.00), and each and every day that any such pens, buildings, yards, sheds, or inclosures shall be kept or maintained, or that any cattle, sheep or swine shall be collected, kept or fed therein, within said district, shall be deemed a separate and distinct offense.

"Sec. 5. The keeping or maintenance within the district aforesaid, of any such pens, buildings, yards, sheds or inclosures, or the collecting, keeping or feeding of any cattle, sheep or swine therein, shall constitute and is hereby declared to be a nuisance."

(4) That prior to January 15, 1907, the said defendants South Dakota Central Land Company and South Dakota Central Railway Company located, built and erected on land belonging to said South Dakota Central Land Company, and adjacent to the railroad tracks of the defendant South Dakota Central Railway Company, certain pens, yards, buildings, and sheds, at the corner of Sherman avenue and Sixth street, within said town of Colton, for general stockyard purposes and for the purpose of collecting, keeping, and feeding cattle, sheep, and swine therein by the patrons of said defendant South Dakota Central Railway Company, and all persons who desired to ship stock over said defendant s railroad, which said pens, buildings, yards, and sheds are located within the said town of Colton and within the district or territory described in section three of said ordinance set out in finding No. 3, and that ever since the building and erection of said pens, buildings, yards, and sheds, and until the commencement of this action, the said defendants South Dakota Central Land Company and South Dakota Central Railway Company kept and maintained said pens, yards, buildings, and sheds for the purposes aforesaid.

(5) That after the passage of said ordinance, and until the commencement of this action the defendants Farmers' Elevator Company of Colton, L. L. Willard, John C. Smith, and various other persons used and occupied said pens, buildings, yards, sheds and collected, kept, and fed cattle and swine within the same, with the full knowledge and consent of the said defendants South Dakota Central Land Company and South Dakota Central Railway Company.

(6) That the said defendants South Dakota Central Land Company and South Dakota Central Railway Company intend to keep and maintain said pens, buildings, yards, and sheds for general stockyard purposes in connection with the business of the said South Dakota Central Railway Company, and wherein cattle, sheep, and swine are to be collected, kept, and fed by the patrons of said South Dakota Central Railway Company and by persons who desire to ship cattle, sheep, and swine over its railroad.

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