(dissenting).
I would affirm the judgment.
The case of Evans v. City of Brookings, 1918, 41 S.D. 225, 170 N.W. 133, seems to sum up the position of this court on public dedication with this statement: “what amounts to a dedication by implication depends upon the facts of the particular case, and no hard and fast rule can be laid down as a guide for the courts * * *.” The questions involved here are those applicable to dedication of a road by public use acquiesced in by the owners of the property traversed by the road over a period of fifty years. The pertinent findings of the trial court state:
“That Leo Ausman (sic), are the predecessor in interest of the land now owned by Plaintiffs, considered the road to be public and the said Leo Ausman (sic) did publicly state this intention and consideration in 1971; and that the said Leo Ausman (sic) did, while living on the property now owned by Plaintiffs, conduct himself in a manner revealing his belief and intention that the subject road was public. That in 1971 Mr. Ed McBride substantially improved the condition of the road in question and that such improvement was made without the objection of any persons or parties across whose land the road traveled.”
These findings seem sufficient to support the judgment of a public dedication of a road if supported by the evidence. Thus, the issue before this court is whether there is evidence to support the findings of the trial court under the clearly erroneous rule. As we have indicated, it is the duty of this court on review to determine whether there is evidence to support the trial court’s finding. Chicago, Burlington & Quincy Railroad Co. v. Wheaton, 1957, 76 S.D. 467, 80 N.W.2d 868; Martindale v. Dickey, 1949, 72 S.D. 595, 38 N.W.2d 140.
The road in question begins at the Nemo road, crosses U.S. Forest Service land for several hundred yards, Homestake Forest Products land for approximately one-half mile, touches one corner of the Bies property, crosses the Brusseau property for some 220 yards, and then proceeds to traverse further Homestake and other property not involved in this lawsuit.
*493Leo Ausmann, before his death in February of 1972, owned the land in question for many years where both Bies and Brusseau now reside and during the period when public dedication either did or did not occur. Thus the testimony in regard to Mr. Aus-mann’s statements and actions during his lifetime become more important in arriving at a factual conclusion.
Ed McBride testified that Leo Ausmann had told him that he considered it to be a public road and welcomed the improvement of the road to “ ‘get [him] out of the mud.’ ” This testimony standing alone is considered the “weakest kind of testimony” by the courts. Mahan v. Mahan, 1963, 80 S.D. 211, 121 N.W.2d 367. However, there were several things that made this testimony more credible. First of all, Leo Ausmann conced-edly never made any objection to the use of the road by the public during his lifetime; he never made any objection when the road was being improved right by his home or when several families began using the road after McBride sold homesites on his land. Mr. Ausmann built his house where Mr. Brusseau now lives to give easy access to this road. Mr. Brusseau purchased a home-site of ten acres from Leo Ausmann about the same time that McBride sold homesites further up the road. He is just one of a group that depends on the road to get from his homesite to the Nemo road. I am certain that he will not spread rocks or dig a ditch across this access between his home-site and the Nemo road.
This testimony is also bolstered further by Mr. McGrath who had been employed by Homestake since 1954. Homestake actually has more land being crossed by this road than any other party. McGrath stated that Homestake and others had used the road consistently, if intermittently, for the entire period without obtaining permission from anyone, and he considered it to be a public road.
The testimony of Bies, Brusseau and Damon Ausmann (son of Leo Ausmann) does not contradict the statements by McBride, although they did state that they never heard Leo Ausmann refer to this road as being public.
In view of this evidence, I cannot conclude that the trial court’s findings were clearly erroneous, and I would affirm.
I am authorized to state that Justice WIN AN S joins in this dissent.