Yankton County v. Klemisch

• Decision Date: 31 August 1898
• Citation: 76 N.W. 312,11 S.D. 170
• Parties: YANKTON COUNTY, Plaintiff and respondent, v. ANTON KLEMISCH, Defendant and appellant.
• Court: South Dakota Supreme Court

11 S.D. 170

76 N.W. 312

YANKTON COUNTY, Plaintiff and respondent,

v.

ANTON KLEMISCH, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Yankton County, SD Hon. E. G. Smith, Judge Affirmed French & Orvis, Yankton, SD Attorneys for appellant. Phil K. Faulk, John Holman Attorneys for respondent. Opinion filed August 31, 1898

FULLER, J.

This appeal is from a decree entered in circuit court restraining defendant from further obstructing or interfering with the removal of obstructions placed by himself on a public highway described in an amended complaint, sufficient, we find, as against all objections now urged for the first time. The record, so far as material, consists measurably of exhibits and files made a part of the court’s findings of fact, showing statutory steps taken in the spring of 1879 for the location of a public highway, not on section lines, which extends diagonally across appellant’s premises. The necessity, utility, and continuous use of the road by the traveling public for more than 16 years, interrupted by appellant only since the year 1888, is unchallenged: but his counsel confidently maintain that the proceedings for laying out and establishing the highway are wholly void for uncertainty of description. The petition to the board of county commissioners, which, under Section 1206, Comp. Laws, initiates such proceedings, contains the names of over 50 persons, stated therein to be “all the owners and occupants or agents of the land through which said proposed highway shall pass,” together with the following recital and description:

“To the Board of County Commissioners of Yankton County:

The undersigned freeholders of said county of Yankton, more than six of whom reside in the immediate neighborhood of the proposed road, respectfully petition your honorable body for the location of a highway, to be 66 feet wide, commencing at the township corner of townships 93 and 94 N., of range 55 and 56 W; thence northerly on or near the township line to the neighborhood of the quarter section corner between sections 13 and 18, township 94 N., of ranges 55 and 56; thence in a northwesterly direction to the bridge now built across Beaver creek; on or near section one, township No. 94 N., range 56 W.; thence in a northwesterly direction to what is known as the ‘Ellerman Bridge’ across James or Dakota river, in section 29, township 96 N., range 56 W., thence northeasterly to the north and south section line running through corner to sections 20, 21, 28 and 29, township 96 N., range 56 W., thence northerly on or near the north boundary of Yankton county.”

A notice of this application to the board of county commissioners, bearing date April 14, 1879 and containing substantially an identical description, with proof that the same had been served as required by statute, was presented with the petition, and the board thereupon, as required by statute, appointed as viewers three qualified persons, who, after taking the required oath, examined the route of the proposed highway, and returned a favorable report, describing the same by “metes and bounds and by course and distance,” which appears to agree, in substance, with the description contained in the order of appointment and the notice and petition above mentioned. No objection being made or remonstrance filed, as provided for in section 1209, Comp. Laws, a record of all the proceedings was made, and the highway, pursuant to the order of the board, was immediately opened, kept in repair, and constantly traveled by the public, without variance, other than that occasioned by appellant’s plowing and fencing during and since the year 1888, of which respondent complains. In addition to such knowledge as the posted notice conveyed, appellant actually knew that the road was being located by the surveyors, and the court found:

“That said road was traveled continually by the public from the time it was laid out and up to about the year 1888, with the full knowledge of the defendant, and with no objection on the part of defendant. That labor was performed on said road at various places along the line, and close up to the farm of defendant, and slightly, on the land of said defendant. That said defendant performed labor on said road under the direction of the road supervisor of said county, and received receipt therefor from said county. … That the defendant did not at any time after 1879, and prior to the acts charged in the complaint, intend to give the use of the road as surveyed across his...