Western Town Lot Co. v. City of Salem

• Decision Date: 13 May 1919
• Docket Number: 4513
• Citation: 172 N.W. 503,42 S.D. 9
• Parties: WESTERN TOWN LOT COMPANY, Plaintiff and respondent, v. CITY OF SALEM, SOUTH DAKOTA, et al, Defendants and appellants.
• Court: South Dakota Supreme Court

42 S.D. 9

172 N.W. 503

WESTERN TOWN LOT COMPANY, Plaintiff and respondent,

v.

CITY OF SALEM, SOUTH DAKOTA, et al, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, McCook County, SD Hon. Louis L. Fleeger, Judge #4513--Affirmed Bogue & Bogue, Clarence M. Davis Attorneys for Appellants. Gardner & Churchill, E. H. Wilson Attorneys for Respondent. Opinion filed May 13, 1919

WHITING, J.

The defendant city having entered into a contract with defendant Barnhart, under which Barnhart was about to construct a cement sidewalk along certain of plaintiff's property in such city, the cost of which walk might become a charge against such property, plaintiff brought this action to enjoin defendants from proceeding to construct such walk. An injunction pendente lite was granted. Upon trial, the court entered findings and conclusions in favor of plaintiff. Upon such findings and conclusions judgment was rendered making the in permanent. From such judgment and from an order denying a new trial this appeal was taken.

Rev. Codes 19433 contain two entirely separate and distinct statutory enactments purporting to be applicable to the matter of the construction of sidewalks—one of these enactments being found in article 16, c. 14, Pol. Code, the other in article 8, c. 16, of the same Code. Appellants make no claim that their proceedings complied with the provisions of article 8, c. 16, but contend that they were proceeding, regularly and properly under article 16, c. 14.

The city council passed a resolution declaring the proposed cement walk to be necessary. Such resolution directed that such walk be constructed in conformity with the ordinances of the city; that the owner of the lot construct the same before a certain date named; and that the street commissioner of the city give notice, as required by law and ordinances, that, if said sidewalk was not built as required by such resolution, it would be built by the city, and the cost taxed against the abutting owner. Section 1308, art. 16, c. 14, provides, among other things, that the city council shall give notice to owners and occupants to build the walk within a time named, by publishing a notice "to said owners and occupants, setting forth what work is to be done and the character of the same." The street commissioner gave no notice. The sole notice, if any was given, was through the publication of the resolution. Such resolution was not in the form of, nor...