WH-ITING, P. J.
Plaintiffs -brought this action seeking to restrain defendants ’from opening up, as a public highway, a four-rod' strip of land crossing the farm lands of plaintiff’s. In their complaint plaintiffs alleged that defendants had attempted to lay out such highway, and plaintiffs set forth, in some detail, respects wherein their actions were irregular a-s statutory proceedings. Defendants, answering, admitted that plaintiffs were the owners of the land in question; admitted that they had taken proceedings for the purpose -of laying out a highway over such strip; denied that such proceedings were irregular; alleged that -such proceedings were in compliance with the statute and regular; and alleged that the highway was duly established. 'For a second defense, and by way of estoppel; defendants alleged that plaihtiffs signed a written petition asking for the laying out of a highway along the strip in question, that such proceedings as were.had by said board were in pursuance of and in accordance with the written request of the plaintiffs; and that therefore the plaintiffs were estopped from denying the existence of said highway. The trial court madé and entered findings of fact to the effect that plaintiffs were owners of the lands in question; that defendant township wa-s a municipal corporation and the other defendants ■supervisors thereof; that, in the month of July, 1908, certain proceedings were had, on the part of said township and the supervisors, to lay out a road along the line as described in the complaint, which road ran over and across the lands of plaintiffs and across no other lands; that a written petition, describing said road, and in due and legal form requesting the establishment thereof, was signed by plaintiffs; that such petition wa-s properly filed, and notice of the ‘hearing thereof properly given to each of said plaintiffs, except plaintiff Wickre; that thereafter the supervisors made an order establishing said road in accordance with the petition; and that all of said proceedings were had and done at the request of plaintiffs as made in said petition signed by them and presented to said board. Upon such findings the trial court rendered its conclusions of law, holding that the plaintiffs cannot be heard to complain of the location of said road, and are not entitled to the relief px-ayed for. A judgment was i-endex-ed and [627]*627motion for new trial made and denied. Plaintiffs have appealed from such judgment and the order denying a new trial. ,
[1] The motion for new trial was based upon the alleged insufficiency of the evidence to justify the findings, for the reason that the petition did not contain the requisite number of qualified signers. This proceeding was had under' and by virtue of article 11, c. 17 Pol. Code, which provides the procedure for the altering, discontinuing, and laying out of roads by township • authorities. Section 1707 of such Code — being one of the sections of the above article — provides that: “The supervisors of the town may alter or discontinue any road or lay out any new road upon the petition of not less than six legal voters who own real estate or who occupy real estate * * * within.one mile of the road to be altered, discontinued or laid out.” Such a petition forms the basis for any future proceedings, and without it the board of supervisors can acquire no statutory authority to lay out a road. It is absolutely undisputed in this case that the original petition was signed by the three plaintiffs and .that there were only two other signers to such petition, one of whom was concededly disqualified. One of the appellants, being a woman, and therefore not a legal voter, was also disqualified as a signerj leaving only four qualified signers to. said petition. Such petition cannot be “properly filed”; neither does such a petition “in due and legal form” request the establishment of 'a road. This court has said, in the case of Town of Wayne v. Caldwell, 1 S. D. 483, 47 N. W. 547, 36 Am. St. Rep. 750, that: “The altering and laying- out of roads for the use of the public is taking private property for public use, and every substantial requirement of the statute must be complied with by the supervisors of the town; otherwise their proceedings will be void.”
[2] The supervisors were without any jurisdiction in the matter before them when they held the meeting at which they attempted to enter the order laying out tjie road in question; the only question presented to us is whether or not appellants estopped themselves from questioning the jurisdiction of said supervisors, and therefore estopped themselves from denying a statutory establishment of tlie highway. Respondents’ answer precludes any presumption that the trial court may have- found a common-[628]*628law dedication, even if the facts proven would have supported such a conclusion. There is a broad difference between facts and circumstances sufficient to estop one from denying a statutory establishment of a highway and such as might - tend to prove a common-law dedication of such highway. The rule of estoppel to deny the regularity of statutory proceedings has 'been often applied in this and analagous classes of cases — it has been applied by this court even to the extent of forbidding persons from questioning the constitutionality of a statute under which such proceedings were undertaken (De Noma v. Murphy, 28 S. D. 372, 133 N. W.703) — but such estoppel has -been decreed only in those cases where the parties 'have stood by and allowed the authorities to proceed and make improvements, or do other things in pursuance of or in carrying but the order based upon the irregular or unwarranted proceedings. The only basis for a claim of estoppel in this case is the fact that appellants signed the original petition;. that at least one of them was present at the hearing thereon; that the board considered the question of damages and made an allowance in favor of the appellant Wickre, one in favor of appellant Erickson, who afterwards waived the same, and found that the appellant Nordness was benefited to an amount such as would offset any damage suffered from the laying out of' such road. There does not apear to have been airy record made of these proceedings in relation to the allowance of damages, and it is not claimed that any one of the appellants, as a matter of fact, received and accepted any damages. Upon the other hand, the supervisors never attempted, so far as the evidence shows, to carry out this order laying out this road until in the summer of 1909, when they served notice upon appellants Wickre and Erickson to remove their fences, and afterwards proceeded to cut down these fences which, obstructed the proposed highway. These acts of respondents, taken undoubtedly with a view to the opening up of the proposed highway, were the immediate cause of the bringing of this action, wherein appellants seek to restrain respondents from opening up such highway. It will thus be seen that, instead of standing by and allowing improvements to be made without objecting thereto, appellants did nothing that should estop their questioning the legality of the order purporting to lay [629]*629out this road, unless it was the signing of the petition.
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WH-ITING, P. J.
Plaintiffs -brought this action seeking to restrain defendants ’from opening up, as a public highway, a four-rod' strip of land crossing the farm lands of plaintiff’s. In their complaint plaintiffs alleged that defendants had attempted to lay out such highway, and plaintiffs set forth, in some detail, respects wherein their actions were irregular a-s statutory proceedings. Defendants, answering, admitted that plaintiffs were the owners of the land in question; admitted that they had taken proceedings for the purpose -of laying out a highway over such strip; denied that such proceedings were irregular; alleged that -such proceedings were in compliance with the statute and regular; and alleged that the highway was duly established. 'For a second defense, and by way of estoppel; defendants alleged that plaihtiffs signed a written petition asking for the laying out of a highway along the strip in question, that such proceedings as were.had by said board were in pursuance of and in accordance with the written request of the plaintiffs; and that therefore the plaintiffs were estopped from denying the existence of said highway. The trial court madé and entered findings of fact to the effect that plaintiffs were owners of the lands in question; that defendant township wa-s a municipal corporation and the other defendants ■supervisors thereof; that, in the month of July, 1908, certain proceedings were had, on the part of said township and the supervisors, to lay out a road along the line as described in the complaint, which road ran over and across the lands of plaintiffs and across no other lands; that a written petition, describing said road, and in due and legal form requesting the establishment thereof, was signed by plaintiffs; that such petition wa-s properly filed, and notice of the ‘hearing thereof properly given to each of said plaintiffs, except plaintiff Wickre; that thereafter the supervisors made an order establishing said road in accordance with the petition; and that all of said proceedings were had and done at the request of plaintiffs as made in said petition signed by them and presented to said board. Upon such findings the trial court rendered its conclusions of law, holding that the plaintiffs cannot be heard to complain of the location of said road, and are not entitled to the relief px-ayed for. A judgment was i-endex-ed and [627]*627motion for new trial made and denied. Plaintiffs have appealed from such judgment and the order denying a new trial. ,
[1] The motion for new trial was based upon the alleged insufficiency of the evidence to justify the findings, for the reason that the petition did not contain the requisite number of qualified signers. This proceeding was had under' and by virtue of article 11, c. 17 Pol. Code, which provides the procedure for the altering, discontinuing, and laying out of roads by township • authorities. Section 1707 of such Code — being one of the sections of the above article — provides that: “The supervisors of the town may alter or discontinue any road or lay out any new road upon the petition of not less than six legal voters who own real estate or who occupy real estate * * * within.one mile of the road to be altered, discontinued or laid out.” Such a petition forms the basis for any future proceedings, and without it the board of supervisors can acquire no statutory authority to lay out a road. It is absolutely undisputed in this case that the original petition was signed by the three plaintiffs and .that there were only two other signers to such petition, one of whom was concededly disqualified. One of the appellants, being a woman, and therefore not a legal voter, was also disqualified as a signerj leaving only four qualified signers to. said petition. Such petition cannot be “properly filed”; neither does such a petition “in due and legal form” request the establishment of 'a road. This court has said, in the case of Town of Wayne v. Caldwell, 1 S. D. 483, 47 N. W. 547, 36 Am. St. Rep. 750, that: “The altering and laying- out of roads for the use of the public is taking private property for public use, and every substantial requirement of the statute must be complied with by the supervisors of the town; otherwise their proceedings will be void.”
[2] The supervisors were without any jurisdiction in the matter before them when they held the meeting at which they attempted to enter the order laying out tjie road in question; the only question presented to us is whether or not appellants estopped themselves from questioning the jurisdiction of said supervisors, and therefore estopped themselves from denying a statutory establishment of tlie highway. Respondents’ answer precludes any presumption that the trial court may have- found a common-[628]*628law dedication, even if the facts proven would have supported such a conclusion. There is a broad difference between facts and circumstances sufficient to estop one from denying a statutory establishment of a highway and such as might - tend to prove a common-law dedication of such highway. The rule of estoppel to deny the regularity of statutory proceedings has 'been often applied in this and analagous classes of cases — it has been applied by this court even to the extent of forbidding persons from questioning the constitutionality of a statute under which such proceedings were undertaken (De Noma v. Murphy, 28 S. D. 372, 133 N. W.703) — but such estoppel has -been decreed only in those cases where the parties 'have stood by and allowed the authorities to proceed and make improvements, or do other things in pursuance of or in carrying but the order based upon the irregular or unwarranted proceedings. The only basis for a claim of estoppel in this case is the fact that appellants signed the original petition;. that at least one of them was present at the hearing thereon; that the board considered the question of damages and made an allowance in favor of the appellant Wickre, one in favor of appellant Erickson, who afterwards waived the same, and found that the appellant Nordness was benefited to an amount such as would offset any damage suffered from the laying out of' such road. There does not apear to have been airy record made of these proceedings in relation to the allowance of damages, and it is not claimed that any one of the appellants, as a matter of fact, received and accepted any damages. Upon the other hand, the supervisors never attempted, so far as the evidence shows, to carry out this order laying out this road until in the summer of 1909, when they served notice upon appellants Wickre and Erickson to remove their fences, and afterwards proceeded to cut down these fences which, obstructed the proposed highway. These acts of respondents, taken undoubtedly with a view to the opening up of the proposed highway, were the immediate cause of the bringing of this action, wherein appellants seek to restrain respondents from opening up such highway. It will thus be seen that, instead of standing by and allowing improvements to be made without objecting thereto, appellants did nothing that should estop their questioning the legality of the order purporting to lay [629]*629out this road, unless it was the signing of the petition. A party-in signing a petition must be presumed to do so with the expectation and belief that sufficient persons will sign the same to render it of legal effect; and certainly the mere signing of a purported petition, which in fact never becomes a legal one, in no manner estops the signer from questioning the validity of the order based upon such petition, when such order is called into question before any work has been done in reliandfe thereon, and without objection on the part of petitioner.
[3] The mere allowance of damages without the acceptance thereof certainly can estop no one. It is true that appellant Erickson signed a written waiver of damages, but that cannot estop her, for the simple reason that the court must presume it was signed with the understanding that the road wo,uld be legally laid out throughout its entire length, bringing to her such benefits as would result therefrom.
[4, 5] 'We have called attention to the fact that a common-law dedication was not pleaded by defendants, and that therefore it cannot properly be presumed 'that the trial court based its decision upon a finding of such dedication; but it has been suggested that such may have been the views of the trial court. If the pleadings had raised this defense, and it had appeared from the records that it was upon a finding of common-law dedication that the court based its ruling, yet such a holding could not stand under the evidence in this case. While it must be conceded that matters pertaining to a statutory proceeding — such a-s the signing of a petition — may become competent as evidence tending to show an intention to dedicate, or even as tending to show a dedication, yet there was not enough in the evidence before the trial court to warrant it in finding a dedication. In. the case at bar it appears that the appellant Wickre had had this strip of land fenced for •some 12 years, and that, even after receiving notice from the supervisors to remove this fence, he kept the fence standing until it was cut down by the supervisors.’ Appellant Erickson, after receiving notice of an intent upon the part of the supervisors to lay out this road, caused: the proposed highway, where it crossed her land to be fenced. No intent to dedicate land can possibly be found to exist where it is kept inclosed with a fence and is used [630]*630by -the owner as his own property. The keeping up of fences and gates, even where a landowner permits the public use of a roach-way across his lands, is held to rebut any presumption of intent to dedicate such road as a public highway. Elliott, Roads and Streets (3d Ed.) § 184. There certainly was no chance to find a dedication under the facts in the case before us.
The judgment and order appealed from are reversed.