Searle v. City of Lead

Citations

• 10 S.D. 312
• 39 L.R.A. 345
• 73 N.W. 101
• 1897 S.D. LEXIS 70

Syllabus

<p>1. Under Const. Art. 6, Sec. 13, providing that private property shall not be taken for public use or damaged without just compensation, which shall be paid before possession is taken, a complaint alleging that plaintiff, as owner of certain lots, had erected a house and made improvements on the natural grade of the street, and that defendant city threatened to change the grade, thereby damaging her property, and that defendant had not compensated nOr offered to compensate her therefor, is sufficient to support an injunction.</p> <p>2. The allegation that defendant threatened to change the grade sufficiently imports that defendant threatened to disturb the street itself by physically grading it, and not merely to pass an ordinance changing the grade.</p> <p>S. A mere denial by defendant that plaintiff would suffer any damage, without denying fully and specifically all the equities of the bill, did not justify the vacation of the injunction order.</p> <p>4. Under Const. Art. 6, § 13, providing that, where private property is taken or damaged for public use, just compensation therefore must be paid before possession is taken, it was not necessary for plaintiff to allege that she would sustain irreparable injury, or that defendant was unable to respond in damages in order to entitle her to an injunction.</p> <p>5. The provisions of Const. Art. 6, § 13, declaring that private property shall not be damaged for public use unless just compensation be first ascertained and paid, are not controlled by Laws 1890, Chap. 37, Art. 16, 3 18, providing that, after the grade of any street has been established, the city shall, if they change the grade, be liable in damages, so as to defeat plaintiff’s right to damages, where she had built upon and improved her lot at natural grade, and the city threatened to establish a new grade.</p> <p>6. The fact'that the city did not admit that its threatened acts would cause any damage to plaintiff did not relieve it of the obligation to tak