Roche Realty & Investment Co. v. Highlands Co. , 29 S.D. 169 ( 1912 )

HANEY, J.

This is an action to enjoin the defendant from obstructing an alleged public highways. The appeal is by the plaintiff from a judgment in favor of the defendant, and an order denying the plaintiff’s application for a new trial.

The defendant owns the N. W. ¡4 of section 12, township 123, range 64. The city of Aberdeen is partially situated in the S. W. Rj of the same section; the north boundary of the city being the south boundary of the defendant’s land. Main street extends through the S. W. 4 °f section 12, about 1,788 feet east of and parallel to the west line of the quarter. The plaintiff owns a half section directly north of the defendant’s land. It is alleged in -the complaint that continuing on a direct line north from the north end of Main street through defendant’s land to the line between sections 1 and 12 is a strip of ground 80 feet in width, which has been in continuous and unobstructed use as’ a public highway for more than 20 years last pas-t, with the knowledge arid consent of the owners of the adjoining land; that .the same was dedicated to public use by the owners of the quarter section through,jwhich it is located; that such dedication was accepted by the public and by the proper officers- of the civil township of Aberdeen; and that the defendant has closed such strip of ground, threatening to keep' it closed. Certain faobs are stated intended to show -the plaintiff’s special interest in having the alleged highway kept open. It also is alleged in the complaint by way oí estoppel that the plaintiff, who was about to open and grade a continuation of the alleged highway through pts own land, inquired of the defendant if it -intended to close the same, and was informed that it did not; and, that relying on such statement, the .plaintiff proceeded to open and grade a highway one mile long at an expense of $300. All these allegeations are denied by the answer, wherein it is alleged that, when the defendant purchased its land, there was outstanding a lease .to the civil township of Aberdeen, executed by its grantor, -leasing a way over and across the quarter, and that such way was then used by the public under such lease and not otherwise. The learned circuit court found, in effect, that the plaintiff has not such an interest as entitles it to maintain this action, that no highway across the defendant’s land was ever dedicated by the owners thereof, or ever established in any manner provided by law, that -the use of the defendant’s land as a public 'highway was -at all times under a lease between the owner and the civil township of Aberdeen, and concluded that the plaintiff wasi not entitled to- the relief demanded in the complaint. As the record discloses no errors relating to' the admission or exclusion of evidence - which could have prejudiced any of the plaintiff’s substantial rights, the only matter -demanding attention is the alleged insufficiency of the evidence to justify the trial court’s findings of fact.

(1) If the public has the right to travel on the strip of ground in dispute, it was -acquired by -prescription or by dedication. Assuming -that the doctrine of prescription is applicable to public highways anywhere, it is subject, -in this state, to the following statutory provisions not heretofore interpreted by this court: “All public 'highways, which have been or may hereafter be used ■as such for twenty years or more -shall be 'deemed public highways. Provided, that the continued use of any -road or way heretofore traveled, or which- shall hereafter be traveled, by the public across any of the public lands belonging .to the -state, or across the land of any private person, or upon and parallel to- the right of way of any railroad company, in'this state, shall not be deemed to have constituted -such road or way a legal highway, or a charge upon the town -in which the same is situated; and no rights or benefits shall inure to the public or any individual by -the use thereof.” Rev. Pol. Code, § 1632. The first sentence of this section was -in force when the state was admitted into the Union. Rev. Pol. Code 1877,'-c. 29, § 37; Comp. Raws 1887, § 1227, The other provisions were first enacted in 1893. The later enactment expressly repealed all acts and parts of aots inconsistent with i'ts provisions. It was entitled: “An act to prevent the establishment of highways upon public lands belonging to the state, private lands, and -on ithe right of way of * railroads by user in the state of South Dakota.” Raws 1893, c. 100. It was enacted at a time when there were large, areas of unoccupied land belonging to the state and to individuals, the -topography of which permitted and invited travel in all -directions. Persons walking or driving from one place to another usually select 'the most direct available route. The -custom of “-angling” across unoccupied land has prevailed since the -earliest -settlements, ft still prevails. It, evidently was -the purpose of the Regislature to prevent -the establishment of public -highways by operation of this custom. The enactment was wise and .timely. There i-s no valid reason why the public should acquire the right to travel in any direction which suits -its convenience, across private property, without compensation, simply because it is permitted to do so, where there is an established highway along -every -section line. It might -have been -contended- with much fo-rce that the law of 1893 operated to repeal the former -statute, but (that question is not now material. The Regislature having incorporated the p'r-ovisi-ons of both statutes into the Revised- Political Code of 1903 as one section, effect should be given, if possible, to all the language of the entire section; the first sentence being so interpreted as to harmonize with the plain and unambiguous meaning of the remaining portions. Hughes v. Board, 25 S. D. 480, 127 N. W. 613. This may be done by distinguishing the “public_ highways” of the first sentence from the “roads” or “ways” of the proviso, by applying the former to routes of travel whose inception was justified by some claim of right, and by applying the latter to routes of travel whose inception was not so justified. [2] Under the statute thus construed, the evidence clearly justifies the conclusion that the public has acquired no prescriptive right to the strip of ground in dispute. It conclusively shows that, when the public began ■traveling across the land now owned by the defendant, it was unoccupied prairie; that different routes were traveled at diffent times and seasons; and that the inception of the travel was without claim or color of right. Such travel, though continued for more than 20 years, cannot create a presumption that the alleged highway was originally established pursuant to law by proper authority, because the statute expressly declares that “no rights or benefits shall inure to the public or any individual” by the use of such a “road” or “way” as the one involved in this action. The plaintiff’s claim of a prescriptive right to travel across -the defendant’s land is precisely such a claim as the statute was designed to defeat. ^ ' ,

Nor should the described strip of land be deemed a public highwa}'', assuming the first sentence of section 1632 to be applicable, for the reason that the evidence is wholly insufficient to justify the conclusion that the same was used by the public as a public highway by 20 years or more before this action was commenced. Therefore, in any view of the statute and evidence, the decision of the trial court, so far as it relates to the question of prescription, should be sustained.

[3] An express dedication is not claimed. Concerning implied dedication as applicable to streets, this court has said: “One of the methods o.f acquiring the right to the use of land for a street is that of the implied dedication of the same by the owner of the fee. In an implied common-law dedication, the use of such land by the public as a street, with the knowledge of, and without objection by, the owner of the fee for -a number of years, is evidence of -such dedication, and from such user by the public, without objection by the owner of the fee, a jury may presume an actual dedication of such street to the public use.” “It may be stated as a general proposition that no particular formality is essential to an implied dedication or acceptance of land for a public use. Conduct on the part of the owner that is clearly expressive of an intention to dedicate usually amounts to dedication, if acted upon by the public in a manner which clearly justifies the inference of an acceptance.” Mason v. Sioux Falls, 2 S. D. 640, 51 N. W. 770, 39 Am. St. Rep. 802; Larson v. Railway Co., 19 S. D. 289, 103 N. W. 35. The latter .statement was .repeated without modification and without reference .to section 1632 in a case involving a county road. Centerville v. Jenter, 25 S. D. 314, 126 N. W. 575. Independently of -that section, the situation of the land over which a way is claimed should exert an important influence upon the question of dedication. The same acts which would warrant the inference in cities and towns may be wholly insufficient in agricultural 'districts. 1 Elliott, Roads and Streets (3d Ed.) § 182. With -respect to such “roads” as the -one involved in this action, evidence of such user as is shown by the record on this appeal should not be regarded as alone sufficient to justify .the inference of a -dedication, either tinder the statute or the' general rule heretofore announced by this court. There should be evidence of conduct on the part of the owner clearly expressive of a present intention to set apart a portion of his land to public use, acted- upon by the public, in a manner which clearly justifies the inference of an acceptance. The -evidence tends to prove that in 1889 a grantor in defendant’s chain of title having in contemplation the platting of the quarter as an addition to the city of Aberdeen caused trees to be planted -on each side of what would be a continuation of Main street, but the -scheme was abandoned, the land was never platted, and the trees soon after died. No other conduct on the part of -any owner of the lan-d prior to its purchase in 1902 by the defendant’s immediate grantor is disclosed which possibly could he construed as expressive of an intention to -devote any part of. it to public use. It may be assumed that, if the platting 'contemplated in 1889 had taken place, a street ■corresponding to the strip of land in controversy would have been dedicated. But no plat was ever, recorded, if one was ever made, the trees died, and the public continued, as before, to travel across the land as suited its .convenience, by different routes at-different times and seasons, until about 1902, when the defendant’s immediate grantor caused the entire tract to be plowed. The trees certainly were planted with reference to a contemplated street, and not with reference to an existing or intended country road. It would be unusual for any one to donate a strip. 80 feet in width through the center of a quarter section of land, .unless the quarter was to be subdivided. It clearly appearing that a future statutory dedication was contemplated, conduct consistent with such purpose cannot be construed as evidence of an intention to dedicate in any other manner. The evidence discloses no act on the part of the -defendant, or its immediate grantor, expressive of a present intention to set apart the strip in controversy to public use. Defendant may have purchased its land with the view of having it platted as an addition- to Aberdeen. It may now intend, at' some future time, to lay out a continuation of Main street, conforming .to the strip of ground in controversy; but it is under no legal or moral obligation to do so, and, until it ©hall have done so, the public will have no right to travel thereon, in absence of proper condemnation proceedings.

[4] The contention that the defendant should be estopped from asserting its rights as -against the plaintiff is clearly untenable. The plaintiff is not seeking to have the way kept open for its own use. Its alleged injury results from the exclusion of the general public, which it in no sense represents. Nor do the faots justified by the evidence work an estoppel in any view of the plaintiff’s interest in the litigation. It appears that the plaintiff, contemplating the platting of its own ground, was about to grade a street or highway through the same in continuation of the alleged street or highway through defendant’s land, thus connecting its proposed street with the principal street of Aberdeen. Having this in view, a representative o'f the plaintiff’s had the following conversation with the defendant’s secretary: “I had a conversation with Mr. S. C. Hedger, the secretary of the defendant corporation, in regard to the prosecution of the work on our property, in the course of which -the road was discussed by us. This was in his office. If had come to me that there was a possibility of this north Main street road being closed which, as I was a new comer, I knew nothing about. I was advised that Howard & Hedger claimed that it was private property, and it would be ele-sed -or might be closed, and, as our company had set out to spend a good deal of money for the purpose of directing traffic through the -two quarters we had purchased, I proceeded to call at the office of Howard & Hedger. Mr. Howard was not at home, but I saw Mr. Hedger, and we had a conversation. I asked him if 'there was any truth in the reports of the closing of the read on north Main street that would cut off .traffic, as we were building the road for the purpose of directing -traffic through there. He said in reply that there had been 'serious -consideration of closing that road for some years and particularly the last couple of years; and he said: ‘As regards the prospects now, or intentions now, I 'have no idea that it will be -closed.’ ” This conversation discloses no conduct inconsistent with the defendant’s present contention. Mr. Hedger’s -reply t-o- the plaintiff’s inquiry was, in effect, a positive assertion o-f the -defendant's- right to -cl-c-se the way whenever i-t elected -so to -do. It gave actual notice to -the plaintiff that the s-tri-p- of ground to which it referred- was claimed by -the defendant to be its private pr-oper-ty. It conveyed no intimation that the public would- be permitted ‘to use the -strip for any -definite period. If Mr. Hjedger had stated, or admitted, that the strip was a public highway which could not be lawfully closed by -the defendant, there might be -some reason for -claiming an -estoppel. Under the plaintiff’s own evidence -there is none whatever. T'h-e plaintiff was not deceived, it was informed of the facts as th-ey -existed', and there was no agreement, with or without consideration, to keep the way open for any specified -time, nothing which -should preclude the defendant from excluding the public from- the use of its private -property whenever it deems proper to -do so.

Therefore, assuming- that the plaintiff has shown such an interest as entitles it to maintain this action, a proposition certainly not free from -doubt, the judgment of the circuit court should be affirmed.