June, 1898.]

Opinion of the Court-CORSON, P. J.

the jury, the provision intended for his benefit would prove a trap and a snare. The theory that a court can remove from the minds of a jury the effect of a statement on the part of a state's attorney referring to the failure of the accused to testify in his own behalf, by an instruction, is illusory, and not sustained by common experience. Jurors, however much they are inclined to do so, would find it difficult to efface from their minds the impression made by the remarks of counsel, and reinforced by the instruction of the court again calling to their minds the same fact, though given for the purpose of cautioning them from being influenced by counsel's remarks. The only safe rule, therefore, when counsel for the state has so far overstepped his duties as to call to the attention of the jnry the fact that the accused has not taken the stand, or offered himself as a witness, is to grant a new trial. In Iowa this is made obligatory upon the court by statute, and the state's attorney is subject to prosecution for a misdemeanor, who in any manner calls such a matter to the attention of the jury. State v. Baldoser, 88 Iowa 55, 55 N. W. 97. In Minnesota the court as well as counsel, is prohibited from referring to the statute. State v. Pearce, 56 Minn. 220, 57 N. W. 652, 1065. In Long v. State, 56 Ind. 182, the supreme court of Indiana granted a new trial where counsel for the state said on the argument to the jury: There were but two parties to this transaction. You have heard the evidence of one of them. We would have been pleased to have heard from the other, to see what light he could have thrown upon this transaction." To the same effect is Hunt v. State (Tex. App.) 12 S. W. 737. While the language of the statutes of the several states is somewhat different, the principles involved and the object and purpose of the law

are the same: and in our view the only practical way to remedy the misconduct of the state's attorney in this case is to grant a new trial. We use the term "misconduct" in its legal sense, as we are satisfied the learned state's attorney intended no wrong, but in his zeal to protect the interests of the state, he went beyond his legal duty and legal right. Lindsay v. Pettigrew, 3 S. D. 199, 52 N. W. 873.

The other questions discussed may not arise in another trial, and will not therefore be considered. The judgment of the court below is reversed, and a new trial is ordered.

LAWRENCE COUNTY V. DEADWOOD & G. TOLL-ROAD CO. et al.

1. Evidence of an attempt to substantially comply with Comp. Laws, 3026-3037, authorizing individuals and corporations to establish and operate wagon roads at a fixed rate of toll, and the construction at great expense and maintenance of such a road for over fifteen years by a private corporation, under an unchallenged claim of title, which was officially recognized by the county, is prima facie evidence of ownership, as against the county.

2. Where the statute (Comp. Laws, 1210 et seq.) in regard to taking property for a public highway does not attempt to provide a complete scheme to devest every substantial private property right for the use of the public, the fundamental principle that the word "owner" should be construed to embrace every person whose property is to be directly seized and appropriated is applicable; and, where a company operating a toll road over practically the same route located for the new highway was made a party to the proceedings by the county, it is entitled to show the amount of its damages.

(Opinion filed June 14, 1898.)

Appeal from circuit court, Lawrence county. Hon. A. J. PLOWMAN, Judge.

Proceedings by Lawrence county to locate a public highway. From the action of the county commissioners ratifying the assessment for damages, Ellen Scott and the Deadwood & Gayville Toll Road Company appealed to the circuit court, from whose decision in favor of the county they appeal. Reversed as to the company.

The facts are stated in the opinion.

Martin & Mason, for appellants.

The county by its condemnation proceedings admitted the right of appellants and the validity of their toll road. Village of Olean v. Steyma, 32 N. E. 9; Board v. Bisby, 15 Pac. 241; City of San Jose v. Reed, 65 Cal. 241; Railroad v. Jackman, 6 Dak. 236.

If appellant's right to collect tolls was properly in issue that right was established by the law and by the undisputed evidence. Comp. Laws, §§ 3026, 3027, 2900, 2905, 2919, 3028, 3037; Palmer v. Plank Road Co., 11 N. Y. 385; Walker v. Caywood, 31 N. Y. 51; Plankroad Co. v. Chamberlin, 32 N. Y. 655; Palmer v. Gravel Road Co., 8 N. E. 908; Attorney General v. D. & E. P. R. Co., 2 Mich. 138; Plankroad Co. v. Fisher, 4 Mich. 37; Estes v. Kelsey, 8 Wood 558; Morgan v. Louisiana, 93 U. S. 217; Fletsom v. Hay, 13 N. E. 501, 8 Am. & Eng. Enc. of Law, 586; Dartmouth College v. Woodward, 4 Wheat. 637, 4 Thomp. on Corp. § 5335; Board v. Lewis, 133 U. S. 198; Cooley Const. Lim., p. 239; Lewis Evi. Dam., § 442; Sherwood v. Railroad, 21 Minn. 127; Railroad v. Berbe, 14 Neb. 463; Railroad v. Cobb. 35 O. St. 94; Sacramento Valley Co. v. Moffat, 7 Cal. 577; Wagon Road Co. v. County, 64 Col. 69.

Opinion of the Court-FULLER, J.

[11 S. D.

If it was incumbent upon appellant to prove a compliance with Sections 3026 and 3027, Comp. Laws, and if the proof offered were not so clear that two minds could not reasonably draw different conclusions therefrom there was still sufficient evidence of compliance to require the submission of the question to the jury. 2 Blackstone's Comm., p. 195; Lewis Ev. Dam. 442; Sherwood v. Railroad, 21 Minn. 127; Railroad v. Berbe, 14 Neb. 463; Railroad v. Cobb, 35 O. St. 94; Railroad v. Gordon, 2 N. W. 649; Estes v. Edwards, 32 Pac. 549.

John R. Wilson, State's Attorney, Lawrence county, for respondent.

FULLER, J. Pursuant to statute, and upon the requisite petition, plaintiff, by its commissioners, undertook to locate a public highway, not on a section or quarter-section line, extending from the "southwestern limits of the city of Deadwood, in Deadwood Gulch, thence up said gulch to Central City, all in the county of Lawrence, South Dakota." Upon the return of a favorable report by the viewers duly appointed, defendants objected to the proposed highway, in the manner provided by section 1210 of the Compiled Laws, yiz.: "If any person through whose land such highway or change may pass shall feel aggrieved thereby, such person may at any time before final action of the board thereon set forth such grievances by way of remonstrance, and the said board shall thereupon appoint three disinterested freeholders as reviewers, and assign a day and place for them to meet." From the action of the county commissioners ratifying the reviewers' assessment of $500 damages in favor of each defendant, both appealed to the circuit court, where a trial to a jury resulted in the direction

June, 1898.]

Opinion of the Court-FULLER, J.

of a verdict against the Deadwood & Gayville Toll-Road Company, and a judgment in favor of Ellen Scott for $1,275 damages, from which both parties defendant appeal to this court.

The undisputed evidence shows that Ellen Scott is the owner of a distinct portion of the land in question; that in 1877 the Deadwood & Gayville Toll-Road Company.-though not incorporated until 1882,-under that name, constructed a valuable and costly toll road, extending over practically the route located by respondent as a free public highway, and has at all times maintained and kept the same in good condition. Upon the theory that said appellant is not an "owner," in contemplation of law, the court rejected all testimony offered to show the existance of a franchise acquired by a substantial compliance with essential statutory provisions; and this is assigned as error. As the legislature has not attempted to provide a complete scheme under which to divest every substantial private property right for the use of the public, fundamental principles applicable to such proceedings should be considered a part of the system, when not at variance with the express words of the statute; and the word "owner" should be construed to embrace every person whose property is to be direct ly seized and appropriated. Elliott, Roads .& S. 233. The rejected testimony tended to show that both parties to the action had at least attempted to comply substantially with the statute (Comp. Laws, $$ 3026, 3037, inclusive) authorizing both natural persons and corporations to establish and operate wagon roads at a fixed rate of toll, which state of facts, together with the concession that appellant did construct, at great expense, and had for more than 15 years maintained, the road, under an unchallenged claim of title, was prima