Webster v. White

Haney, J. This action was brought to enjoin defendants from opening and maintaining a section-line highway through plaintiff’s land, and to recover damages resulting from an attempt to do so. The line between sections 25 and 26, Split Bock township, Minnehaha county, is the one in dispute. The highway along what was claimed to be this section line had been worked and traveled for a number of years, when, in April, 1893, the township employed the county surveyor to survey its lines and erect landmarks, under'Chap. 35, Laws 1890. In making such survey the county surveyor located the line about 18 rods west of the traveled highway, where it passes plaintiff’s premises, and, as he contends, that many rods west of where it was originally located by the government surveyors. An attempt by the township officers to open and work a road along the line as located by the new survey gave rise to this action. It was tried by the court, resulting in a judgment for plaintiff, from which, and an order denying a motion for a new trial, defendants appealed. Defendants contend. that the survey made by the county surveyor was the corporate act of the township, and is binding upon all land owners until set aside in a direct proceeding brought against the township in its corporate name; that it cannot be questioned collaterally. We are unable to view Chap. 35, Laws 1890, in any such light. The act itself makes the survey only presumptively correct. Prior to its passage the same presumption prevailed in favor of surveys made in the manner prescribed by the statute. The only substantial effect — apparently, the only purpose — of the act was to authorize civil townships to furnish profitable employment to county surveyors at the expense of the townships. So far as this cape ip popcepped, [482] it may be conceded that tbe county surveyor’s work was presumptively correct; and his report, having been received in evidence, cast upon plaintiff the burden of proving that the line as originally located was not where the county surveyor located it. This is all the effect the statute itself requires shall be given to the survey. Whether it is entitled to even this effect, as against land' owners without notice of the survey, is doubtful, and not decided at this time. It is claimed that defendants were performing their duty as public officers, and can neither be restrained, nor required to respond in damages. If the findings of the court are sustained by the- evidence, they were not performing any official duty. It was their duty to maintain and work a highway along the section line as established by the original survey — not on a line 18 rods west thereof, and through the land of plaintiff. When they left the section line, they left the highway, and whatever they did beyond the limits of the highway was without authority and unlawful. It is alleged and admitted that defendants Benedict, Lee and Munson are township supervisors; that defendant White is road overseer; and that each acted in an official capacity. It is contended that they and their successors in office cannot be enjoined, because the title of the action fails to show that they are sued in an official capacity. This is but a defect in form, which involves no substantial right, and, in any view, cannot be regarded as reversible error. Defendants, having exceeded their authority as township officers, might be treated as trespassers and enjoined as individuals. The decree is effectual to prevent them from acting in any capacity, and it is immaterial to them what effect it may hereafter have upon the corporation or others not parties to this action. The facts, as found by the court, clearly authorized the issuance of an injunction. 2 High Inj. § 702, and cases cited. Defendants make the point that they were entitled to a trial by jury, Upon the issues made by the complaint and answer, [483] both parties noticed the cause for trial by the court. Defendants did not request a jury, nor object to a trial by the court, until after the conclusion of plaintiff’s evidence, when they asked the court to rule and decide in their favor upon several propositions; among them, “that defendants are entitled, under the constitution, to a trial by a jury on all questions of trespass, and such as the proof would warrant, given upon the trial of this action.” If this was intended as a demand for a jury trial, it came too late. Noting the case for trial by the court, and failing to ask for a jury, or object to the proceedings, until the plaintiff had completed his testimony in chief, were unequivocal acts, showing an intention to abandon the right of a trial by jury. Wheelock v. Lee, 74 N. Y. 495; Baird v. Mayor, etc., Id. 382. The trial court found that the line run by the county surveyor between sections 25 and 26 does not correspond with the line of the United States survey, and the landmarks erected by the county surveyor were not set upon the corresponding section corners and quarter section corners established by the United States survey between said sections, but said new line and landmarks are located about 18 rods west of said United States survey, and upon plaintiff’s said premises. It is claimed that this finding is not sustained by the evidence, and numerous errors are assigned relative to the introduction and rejection of evidence. A large number of witnesses were examined on behalf of both parties, among whom were some of the first settlers in the township. As is usual in this class of cases, the evidence is conflicting. It would serve no useful purpose to attempt a statement of it in this opinion. After a careful examination of the entire record, we have reached the conclusion that, upon the competent evidence before it, the court was justified in finding as it did in respect to the true location of the line in dispute. This court will not reverse the findings of a trial court unless there is a clear preponderance of the evidence against its decision. Randall v. Burk Tp., 4 S. D. 337, 57 N. W. 4. . [484] Plaintiff, as a witness in his own behalf, was asked this question: ‘What, in your judgment, is the actual damage to the east half of the northeast quarter of the land you own, caused by work that has been done by Mr. White and the other defendants, that you have described?” This was objected to as inadmissible under the complaint; not tending to prove any facts; as calling for a conclusion of the witness; and not the right measure of damages. The objection should have been sustained. His estimate was not limited by any rule. It is impossible to determine upon what basis it was made. As his answer appears to be the only evidence as to the amount of damages sustained, we think- the court should have found only nominal damages. Regarding the question of damages as merely incidental to the principal controversy, we think the judgment should be modified by reducing the amount of damages from $25 to $1; and, so modified, it should be affirmed.