City of Deadwood v. Hursh

WHITING, J. In the city of Deadwood, S. D., there is a street known as Main street running north and south, and running from it toward the west is a narrow street known as Gold street. On the south side of Gold- street and west side of Main street there is standing a brick building belonging to the defendant, the north and east walls of which conform to the lines of the said streets. On the north side of this building, and adjoining a part of the north wall of same, there is a 3-foot areaway extending from the sidewalk, which runs along the north side of said building, down to and connecting with the basement of such building. Above this areaway there is a stairway connecting said sidewalk with the second story of this building. It will thus be seen that the áreaway and stairway are both situated in and upon what would be a part of said Gold street, providing the south boundary line of Gold street is straight. Plaintiff brought this action, claiming that such areaway and stairway occupied a portion of such street, and were, for such reason, a public nuisance; and, in its prayer for relief, it asked for the abatement of such nuisance. The defendant denied that Gold street ever included the space occupied by such areaway and stairway. The cause was tried to the court and jury. At the .close of all of the testimony, both [459] parties moved for a direction of verdict, and the trial court directed a verdict in favor of the plaintiff. It is from the judg-nient entered upon such directed verdict that this appeal is taken. [1] The only question presented for our determination is whether the decision of the trial judge in directing a verdict was against the clear preponderance of the evidence. If not, it must stand. Durand v. Preston, 26 S. D. 222, 128 N. W. 129. No useful purpose could, be subserved by the reproduction of the evidence in this opinion. We think such evidence fairly proves the following: As early as the year 1877 there was a public street conforming in location to what is now Gold street. In 1879 a wooden -building stood where defendant’s building now stands, and the street along the north side thereof was in use. Defendant’s title to the land upon which his building stands is derived through a chain of deeds, not one of which describes the land occupied by the areaway and stairway. The first transfer of which evidence was received was one dated February 24, 1879, which conveyed a tract 25 feet by 100 feet in size. The building then upon the premises burned down in 1879, and the present building was erected in 1880, and, in its construction, recognized the existence of Gold street adjoining such building. The" áreaway was constructed at. the time the present building was erected. The stairway was placed over such areaway in 1886. Until about two years prior to the bringing of this action, Gold street extended only to an alley or narrow street which runs north and south at the west end of defendant’s lot. At that time -the city acquired a right of way for and erected a stairway connecting the west .end of Gold street with a street west thereof. We think the trial court warranted in finding that, prior to the erection of -the present building, there was an established street having as its south boundary line the north line of the lot upon which this building stands, which lot comprises no part of the space occupied by the areaway and stairway, and that defendant never received through his chain of title any title whatsoever to this space so occupied by the areaway and stairway. But appellant insists that, even if the street as established included such space now claimed by the street: First, the defendant has "acquired the right to use said space through 20 years’ occupancy; second, the city is estopped from now claiming same. [460] [2] The obstruction of a public street is, under the provisions of sections 2393-2394 of the Civil Code, a public nuisance. Section 2399 of such Code' provides: “No lapse of time can legalize a public nuisance amounting to an actual obstruction of public right.” The areaway and stairway constituted such an obstruction. Regardless of statutory provisions, the rule is well established that a right to commit a public nuisance cannot be acquired by prescription. 29 Cyc. 1207. See, also, notes following case of Ireland v. Bowman in 17 Ann. Cas. at page 789, where this rule and the reasons upon which it is founded are very fully discussed and a vast number of cases cited. See, especially, cases referred to under heading, “Highways, Streets, etc.,” on page 791. [3] It certainly needs no argument to show that the equitable doctrine of estoppel has no application to the facts of this' case. As appears from the muniments of title under which defendant and his grantors held title to the lot upon which the building rested, they all -had notice that their occupancy of the space taken by the areaway and stairway was not by virtue of any right or title, but was merely permissive. They were not misled. They were not ignorant of the true facts. The judgment of the trial court is affirmed.