Van Gerpen v. Gemmill
| Decision Date | 02 July 1948 |
| Docket Number | 8954,8970. |
| Citation | 33 N.W.2d 278,72 S.D. 265 |
| Parties | VAN GERPEN v. GEMMILL et al. |
| Court | South Dakota Supreme Court |
John E. Walsh, of Yankton, for plaintiff and respondent.
Lee H. Cope, of Yankton, for defendants and appellants.
Lars A. Bruce, of Yankton, for defendants.
SDC 28.0102 provides, 'There is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board, or tribunal.'
The plaintiff is the owner of the Northeast Quarter of Section Twenty-eight, Walshtown Township, Yankton County. He seeks in this action to mandamus the Board of Township Supervisors and the Board of County Commissioners to construct a highway along the section line between Section Twenty-seven and Section Twenty-eight. The Board of County Commissioners answered plaintiff's complaint and alleged that the road between these two sections is a secondary road and that the law imposes no duty upon the county commissioners with respect to such road. The Township Supervisors filed a motion to dismiss the complaint. Without any further proceeding other than argument of counsel, the court entered judgment the material parts of which are as follows:
'Ordered that the said John Gemmill, Archie McKeachie, and Harry Boe as the Board of Township Supervisors of Walshtown Township, be, and they are hereby commanded to forthwith establish, through the services of a licensed surveyor, whose certificate is acceptable under the Laws of the State of South Dakota, the section line between Sections Twenty-seven (27) and Twenty-eight (28), Township Ninety-five (95) North, Range Fifty-five (55) West, of the 5th P. M., Yankton County, South Dakota, as contemplated by SDC 28.0102 and SDC 28.0105; and it is further
'Ordered, adjudged and decreed, that John Gemmill, Archie McKeachie and Harry Boe, as the Board of Township Supervisors of Walshtown Township, be, and they are hereby commanded to forthwith arrange for the construction of a road sixty-six feet wide, one-half of which is to be taken from each side of Sections Twenty-seven (27) and Twenty-eight (28), that is to say, one-half from the west side of said Section Twenty-seven (27) and one-half from the east side of said Section Twenty-eight (28), Township Ninety-five (95) North, Range Fifty-five (55) West, of the 5th P. M., Yankton County, South Dakota, and the arrangement by the said township board members for the construction of said road shall be made forthwith with said Board of County Commissioners of Yankton County, South Dakota, and the said County Highway Superintendent of Yankton County, South Dakota; and it is further
'Ordered, adjudged and decreed, that you, Jesse M. Smith, Carl M. Anderson, P. C. Peterson, W. C. Olander and Peter J. Stark, constituting the Board of County Commissioners of Yankton County, South Dakota, and you, Frank W. Smith, Superintendent of Highways of Yankton County, South Dakota, be, and you are hereby directed to forthwith supervise the construction of a road sixty-six feet wide between said Sections Twenty-seven (27) and Twenty-eight (28), Township Ninety-five (95) North, Range Fifty-five (55) West, of the 5th P. M., Yankton County, South Dakota, immediately after the arrangement is made for the construction of said road by the said Township Supervisors of the said Walshtown Township, and that the said highway shall be constructed in conformity with and as contemplated by the terms of Title 28, SDC 1939; and it is further * * *'
The defendants have appealed. The court did not determine the duty of the township board independent of or apart from its determination of this board's duty in conjunction with the duty of the county board as this duty was determined by the court. It follows that if there is no duty with respect to this road upon the county board that the correlative duties of the two boards as found by the court are nonexistent, and the whole judgment falls. The trial court not having found any duty of the township board apart from its duty in conjunction with the county board, we, of course, refrain from expressing any opinion upon the question of whether the performance of any independent duty of the township board may be compelled by mandamus.
Highways are classified by our Code, SDC 28.0107, as follows: (1) streets and alleys within the...
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