Riverside Township v. Newton

75 N.W. 899, 11 S.D. 120, 1898 S.D. LEXIS 85

• Court: South Dakota Supreme Court
• Decided: June 22, 1898
• Status: Published

Opinion

Fuller, J.

This proceeding to establish a highway upon a section line originated before plaintiff’s supervisors, and there resulted in an order opening the road, and awarding damages to the defendant Newton, from which order he appealed to the circuit court, where a trial de novo was had, and a verdict of $400 damages returned in his favor. This appeal is by plaintiff, the township of Riverside, from an order overruling a motion for a ne w trial. In the year 1891 respondent purchased from the state 160 acres of school land situated on the north side of section 16, and for the road in question a strip thereof 33 feet in width extending along the entire north line is taken, together with an oqua1 amount along the south line of section 9, the property of respondent lying immediately opposite. The question whether, in this state, all the boundary lines of section 16 and 36 ar1 highways is fairly presented by an assignment of errror relating to the holding of the trial court “that no such grant exists with reference to school sections, ” and to its refusal to give the following, among other, similar instructions proposed by counsel for appellant: “You are instructed that under the evidence and admissions in this case that there is a highway established by operation of law, two rods wide on the north line of the north half of the northeast quarter and the north half of the northwest quarter of section sixteen, belonging to Mr. Newton, and that no damages can be allowed for the use of said two rods for highway purposes.” The congressional enactment of 1861, under which the territory of Dakota was organized, provides: “That when the land in said territory shall .be surveyed, under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered 16 and 36 in each township in said territory shall be, and the same are -heréby, reserved for the purpose of being applied to schools in the states hereafter to be erected out of the same.’ 12 Stat. 243, § 14. In 1866, congress passed section 2477 of the Revised Statutes as follows: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” Sections 1189 and 1191 of the Compiled Laws expressly declare that all section lines are public highways 66 feet in width, taken equally from each side of such lines; and this court, in the case of Wells v. Pennington Co., 2 S. D. 1, 48 N. W. 305, construed the foregoing to be “an acceptance of the congressional grant, which became operative upon the date of its enactment,” and that all persons subsequently acquiring title from the government take the same with notice of such acceptance, and subject to the right of way for highway purposes over all section lines in this state. Keen v. Supervisors, 8 S. D. 558, 67 N. W. 623. Do the foregoing provisions of the Compiled Law's apply to school sections? is the decisive question, which must be answered affirmatively, unless by the act of congress above quoted the same were “reserved for public uses.” The mere announcement of a governmental policy to withhold, when the same shall be surveyed, specified portions of the public domain from settlers and purchasers, “for the purpose of being applied to schools of states hereafter to be erected,” is neither a grant nor reservation “for public uses. ” The act of congress granting the right of way for the construction of highways over public lands, construed with the provisions of our statute, creates an easement of which respondent had notice, operating uniformly upon all section lines, including the boundaries of school sections designed to be leased or sold by the state for the purpose of creating a trust fund for the benefit of the public schools. Such lands are not reserved for, nor are they put to, a public use. Section 2364 of the United States Revised Statutes, when considered with other provisions relating to the same subject, tends to negative the idea that such lands were reserved for public uses by providing that “whenever any reservation of public lands is brought into market, the commissioner of the general land office shall fix a minimum price, not less than oue dollar and twenty-five cents per acre, below which such lands shall not be disposed of.’’ Our conclusion therefore is that the lawmakers have reserved and located a highway along the school section line in question, which ap pellant is authorized to open and prepare for the use of the public, without allowing respondent any compensation in the way of damages, The order appealed from is reversed, and the case remanded for further proceedings not inconsistent herewith.