A. W. Wilmarth, for appellant.

Churchill, for respondent.

Gardner, Fairbank &

HANEY, J. On June 26, 1909, this court affirmed an order. of the circuit court granting the plaintiff's application for a new trial in this action and remanding the cause for further proceedings according to law and its decision. Rex. Buggy Co v. Dinneen, 23 S. D. 474, 122 N. W. 433. The record and remittitur were filed in the circuit court January 31, 1910. During the December, 1910, term of that court the defendant moved to dismiss the action on the ground that no proceedings were had therein within the time prescribed by the statute. The motion was overruled and this appeal taken.

The statute provides: "In every case in error, or on appeal, in which the supreme court shall order a new trial, or further proceedings in the court below, the record shall be transmitted to such court, and proceedings had therein within one year from the date of such order in the supreme court, or in default thereof, the action shall be dismissed, unless upon good cause shown, the court shall otherwise order." Rev. Code Civ. Proc. § 465.

[1] Mere failure to proceed within the prescribed period does not operate to dismiss the action. Notwithstanding such period may have expired without such proceedings as the statute contemplates, the court may, "upon good cause shown," decline to dismiss.

[2] Whether good cause has been shown is a question addressed to the sound discretion of the trial court, depending on the facts of the particular case, and its decision should not be reversed in absence of clear abuse of discretion. Root v Sweeney, 17 S. D. 179, 95 N. W. 916. The reasons for this rule are especially cogent when the court declines to dismiss, leaving the cause to be tried upon its merits.

[3] The circumstances in the case at bar are exceptional. When the action was tried in the circuit court, the plaintiff was

Vol. 28 S. D. 41.

Mr. Taylor pre

represented by Crawford, Taylor & Fairbank. pared the brief on the former appeal. In November, 1908, the firm of Crawford, Taylor & Fairbank was dissolved, Mr. Taylor having been appointed judge of the Ninth judicial circuit, and Mr. Fairbank becoming a member of the firm of Gardner, Fairbank & Churchill, the present attorneys for the plaintiff. Mr. Taylor having had personal charge of the case before his appointment, Mr. Fairbank's failure to have the cause promptly remanded was quite excusable. Though there may be some apparent conflict in the affidavits, the court below would be justified in believing that Judge Taylor's attention was called to the situation of the case by Mr. Fairbank, in open court, before the expiration of one year from the date of the order of this court remanding the cause for further proceedings. Judge Taylor could make no order in the action. affecting the substantial rights of either party without impropriety, if not reversible error. Mr. Fairbank could not secure the services of another judge or determine when the cause should be tried. Proper proceedings could not be had in absence of a qualified judge. If any one was at fault for the failure to secure such a judge during the June, 1910, term of the circuit court, wherein the action was pending, which commenced June 14, 1910, it was Judge Taylor, and not Mr. Fairbank. A judge who was qualified to act was secured at the next succeeding term. Such judge, after considering all the facts and circumstances, concluded that, good cause was shown why the action should not be dismissed. It clearly appeared that the plaintiff and his counsel had acted in good faith. In view of all the circumstances, this court cannot conclude that the discretion of the learned trial judge, who entered the order appealed from, was exercised on grounds, or for reasons, clearly untenable, or to an extent, clearly unreasonable. Root v. Bingham, 26 S. D. 118, 128 N. W. 132. Though there may have been no such proceedings in the circuit court as are con

templated by the statute, within the prescribed time, there was no abuse of discretion in declining to dismiss the action. So the order appealed from must be affirmed.

WHITING, J., taking no part in the decision.

ATLAS LUMBER CO. et al. v. QUIRK.

The owner of land made out an addition consisting of nine platted blocks. Blocks 1, 2, 3, were platted into lots and were separated from blocks 4, 5, 6, on the south by a street designated as C. street, and between the latter blocks and blocks 7, 8, 9, was a strip about 90 feet wide which was not designated as a street, but which was not platted into lots and was a substantial continuation of another street as shown by a prior platted addition, and railroad tracks extended down the center of such strip. Annexed to the plat was a certificate by the owner that he caused the land to be platted as indicated by the plat and surveyor's certificate, and the surveyor's certificate recited that he surveyed the land into lots, blocks, streets, and alleys, and that the accompanying plat was a true representation of the addition, particularly describing and setting forth all the lots, blocks, streets, and alleys, and giving the names, numbers, boundaries, etc., of the same. Held, that the plat, construed with the certificates, showed that the strip between blocks 7, 8, 9, and the railroad right of way was intended to be dedicated as a street.

It is presumed that one who records a plat of an addition containing undesignated spaces which appear to form no part of any platted lots dedicates such spaces as public streets, especially where such spaces are apparently extensions of other streets.

As against the original owner, an intent to dedicate land as a street must be clearly shown from his acts and declarations in connection with the surrounding circumstances.

(Opinion filed, February 29, 1912.)

Appeal from Circuit Court, Hyde County. Hon. JOHN F. HUGHES, Judge.

Action by the Atlas Lumber Company and another against Elmer Quirk. From a judgment for defendant, plaintiffs appeal. Reversed, and judgment directed for plaintiffs.

The following is the plat referred to in the opinion:

AVENUE

27

23

2

22

3

21

4

20

5

19

6

18

2

12

8

16

9

Boucher, O'Brien, Johnson & Auldridge, for appellants. Gardner, Fairbank & Churchill, for respondent.

McCOY, P. J. The sole question at issue upon the merits of this action is whether or not a certain strip of ground, about 45 feet in width, lying between the right of way of the Chicago & Northwestern Railway and blocks 7, 8, and 9, of Gowdy's addition to the city of Highmore, is a public street or private property. The plaintiff owns lots 1 and 2 of block 7, on which it has

228

"AVENUE

SECTION LINE

a lumber yard. Plaintiff also has leased from the railroad company a portion of its right of way immediately south of the tracks and immediately north of the 45-foot strip of ground in controversy. The respondent claiming to be the owner of the strip of ground in controversy lying north of said block 7, under a quitclaim deed from the heirs of Gowdy made in 1905, commenced the construction of an icehouse between plaintiff's lumber yard and elevator. Plaintiff instituted this suit to restrain and perpetually enjoin defendant from erecting and maintaining said icehouse on said strip of land on the ground that the same is a public street and not the private property of respondent. Findings and judgment in the lower court were in favor of defendant. Plaintiff appeals, alleging various errors and also alleging insufficiency of the evidence to justify the findings and judgment. Appellant also contends that, on the facts found by the trial court, judgment should have been for plaintiff, the contention of the appellant being that the undisputed evidence in the case conclusively shows that the said strip of land was dedicated as a public street by J. R. Gowdy at the time he platted and laid out said addition to the city of Highmore, and that said dedication was accepted and used by the public. The accompanying plat substantially shows the plat filed by Gowdy, with the exception of the X, indicating the portion of said plat occupied by plaintiff, and the indicating the point where respondent seeks to erect said icehouse. The said plat was made and filed by Gowdy in May, 1885, and had annexed thereto a certificate of the surveyor, Dallas L. Cadwallader, who made the same, stating in substance that: "At the instance and request of J. R. Gowdy of the town of Highmore, I did, on and prior to the 30th day of April, 1885, survey and stake out into lots and blocks, streets and alleys, a part of the southeast 40 of the northeast quarter of section II, for the purpose of laying out an addition to the town of Highmore to be known by the name of 'J. R. Gowdy's north addition to Highmore,' and that the accompanying plat is a true representation of said addition particularly describing and setting forth all the lots and blocks, streets and alleys, giving the names, numbers, widths, corners, boundaries, and extent of the same; and that all the lots