#### KLOSTERMAN et al, Respondents, v. CITY OF ELKTON, Appellant.

(191 N. W. 341.)

(File No. 5112.

Opinion filed December 12, 1922.

Municipal Corporations — Exclusion of Territory — Exclusion oí Land From City Limits Because Property Within Limits Was More Heavily Taxed Than Outside Property Held Error in View of the Facts.

Where a city embracing nine quarter sections of land had made improvements during two years amounting to $8 5,000, and constructed a public school 'building less than three blocks from a certain quarter section- in the corner of the city, and the owners of such quarter section,had a residence only about three-fourths oí a mile from the -center of 'business in the city, and only 1,500 feet from the nearest fire hydrant, and enjoyed municipal telephone connection and a graded road maintained by the city, and the electric light -line ran along such land, it was error for the court 'to exclude such quarter section from the city limits on -petition giving as the only reason for segregation the fact th-a't the property within the city limits was more 'heavily taxed than the property outside -o-f city limits.

Polley, J., dissenting.

Appeal from Circuit Court, Brookings County; Hon. W. N. Skinner, Judge.

Action by C. H. Klosterman and another against the City of Elkton. Erom- judgment for plaintiffs, and from and order denying a motion for new trial, the defendant appeals.

Judgment and order reversed.

*B. A. Berke,*of Elkton, for Appellant.

*Alexander & Alexander,*of Brookings, for Respondents.

Appellant cited: Qualey v. City of Brookings (S. D.), 191 N. W. 713; Christ v. City of 'Webster (S. D.), 74 N. W. 744; 28 Cyc., pp. 196, 197; Secs. 6279, 6301, Code 1919; Sec. 61-69, subd. 43, 57.

Respondent cited: Secs. 8573, 8575, Code 1919; Morrison v. Town of Lafayette (Colo.), 184 Pac. 301; Thiel v. City of Alexandria (-S. D.), 171 N. W. 209; Johnson v. Castlewood (S. D-), 168 N-. W. 124.

GATES, P. J.

The city limits of Elkton, in Brookings county, embrace nine quarter sections of land. See plat attached.

*137

Plaintiffs, the owners of the quarter section in the southwest corner, petitioned' the city council to exclude their land from the city • limits, which request was denied. Upon review the circuit court excluded it, and at the same time excluded the north ‘‘80” of the quarter section in the northeast corner of the city limits. From the action of the trial court in excluding plaintiff’s .and, the city has appealed.

Probably the trial court felt bound to grant the petition in view of the decision of this court in Thiel v. City of Alexandria, 41 S. D. 427, 171 N. W. 209. The only reason respondents advance for the segregation is the matter of increased taxation on’ property within, as compared wiith property without, the city limits. Elkton is a community of 872 persons; has made improvements in the last two years amounting to $85,000; has five churches, two schools, and two railroads. The public school building is in the third block east of the northeast corner of respondents’ land, and about four blocks from their residence. The residence is about 60 rods south of their northeast corner, and Is about three-fourths of a mile from the center of business. It is about 1,500 feet from the nearest fire hydrant. In 1919 an addition was platted in the quarter adjoining it on the east, in which several buildings have been built. The tendency of growth is to the southwest. The highway on the east is a graded road maintained by'the city. Along it runs the electric light line. Plaintiffs *138have municipal telephone connection. The plans of the-city-engineer contemplate a sewer system discharging to the southwest.

In our opinion-, if this tract is'to' be, segregated, then all portions of the city that do .not contain platted lots;as shown by the above plat are likewise entitled'to. be excluded: In our opinioñ,

the showing made by the city in-1 this, case entitled it to retain the lands of plaintiff‘’within the 'city-liniSts. This 'case s'hows facts much more favorable) tój the- ¡retention of the land within the city limits than did Thiel v. City of Alexandria, supra.

The judgment and -order appéaléi-ffrom aré ..reversed.

POLLEY, J., dissents.-

Note — Reported. In 191 N. W. 341.- See American Key-Nunifereh Digest, Municipal Corporations, Ke-y-No. 30, 28 Cyc. 194-19-7.

.On power of city to extend exercise of taxing power beyond corporate”limits) see notes in 15 L. R. A. 294, -and L. R. Á. l’’9Í8C, 528; Taxation of farm lands within municipal limits, 26 R. C. L. 336.