Krier v. Dell Rapids Twp.

#23669-a-RWS

2006 SD 10

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STEVE KRIER, Plaintiff and Appellant,

v.

DELL RAPIDS TOWNSHIP, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE WILLIAM J. SRSTKA, JR.
Judge

* * * *
STEVE KRIER
Sioux Falls, South Dakota Pro se appellant.

DOUGLAS M. DEIBERT of
Cadwell, Sanford, Deibert & Garry
Sioux Falls, South Dakota Attorneys for defendant
and appellee.

* * * *

CONSIDERED ON BRIEFS
ON NOVEMBER 7, 2005

OPINION FILED 01/25/06
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SABERS, Justice

[¶1.] Steve Krier (Krier) appeals the circuit court’s grant of summary

judgment to Dell Rapids Township on his claims of nuisance and inverse

condemnation. We affirm.

Facts

[¶2.] In 1980, the Dell Rapids Town ship (Township) received a section of

Highway 115 from the State of South Dakota. The Township named that section

“Garfield Avenue.” At issue in this case is the portion of Highway 115, renamed

Garfield Avenue, which runs south from Dell Rapids to South Dakota Highway 115.

[¶3.] Over the years, Garfield Avenue fell into a state of disrepair. A portion

of the road was surfaced in blacktop, but was badly cracked. At the point where the

blacktop ended, the road consisted of dirt, grass, and sinkholes. The Township used

a gate to block this portion of the road because it believed it was hazardous.

[¶4.] In 1997, Krier built a house on four acres just south of Dell Rapids,

adjacent to Garfield Avenue. To the north of Krier’s property was the portion of

Garfield Avenue that was cracked blacktop. To the south of Krier’s property was

the portion of Garfield Avenue that was blocked by the gate. As a result, there was

little traffic on the portion of Garfield Avenue that abutted the Krier property.

[¶5.] In 2001, the Township decided to repair and resurface Garfield

Avenue. Instead of resurfacing Garfield Avenue with asphalt, the Township

decided to use gravel. The road was bladed, gravel was put down, and the road was

bladed again. The entire one mile portion of Garfield Avenue is now a gravel road.

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[¶6.] Krier was upset with the Township because he wanted Garfield

Avenue to be a hard surface road. According to Krier, the gravel made the ruts and

potholes worse. Krier complains of an accumulation of dust and dirt on his

property.

[¶7.] Krier brought suit against the Township alleging (1) that Garfield

Avenue has become a nuisance in violation of SDCL 21-10-1, and (2) that the

Township was in violation of SDCL 31-13-49 for refusing to return Garfield Avenue

to “its original paved surface.” Krier requested damages for loss of enjoyment and

use of his property and an order directing the Township to return Garfield Avenue

“to a condition that no longer constitutes a nuisance.” 1

[¶8.] The Township counterclaimed that its actions in maintaining the road

were reasonable. Following discovery, the Township moved for summary judgment,

which was granted.

[¶9.] The circuit court relied on SDCL 21-10-2 in ruling the Township’s

actions did not constitute a nuisance, and that although the Township had a duty to

maintain Garfield Avenue, Krier had no right to dictate the details.

[¶10.] Krier amended his complaint to state an inverse condemnation claim

and requested damages in the amount of $30,000 for loss of value to his property.

Both parties moved for summary judgment.

[¶11.] The circuit court granted summary judgment for the Township and

denied Krier’s motion. The court found no physical invasion of Krier’s property

1. Krier amended his complaint to request damages for an alleged incident in
which a Township snow plow damaged his mailbox and landscaping. That
matter is not before us on appeal.

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occurred and that Krier failed to prove injuries peculiar to his land, not suffered by

the public as a whole. The Township moved for taxation of disbursements. The

circuit court granted the motion and awarded the Township $657.08 in taxable

disbursements. Krier raises the following issues on appeal:

1. Whether the circuit court erred in granting summary judgment
for the Township on the nuisance claim.

2. Whether the circuit court erred in granting summary judgment
for the Township on the inverse condemnation claim.

3. Whether the circuit court erred in taxing disbursements in favor
of the Township.

Standard of Review

[¶12.] Summary judgment is authorized “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). All reasonable

inferences derived from the facts are viewed in the light most favorable to the

nonmoving party. Northstream Invs., Inc. v. 1804 Country Store Co., 2005 SD 61,

¶11, 697 NW2d 762, 765 (citing Morgan v. Baldwin, 450 NW2d 783, 785 (SD 1990)).

However, the nonmoving party must present facts showing that a genuine and

material issue for trial exists. Cromwell v. Rapid City Police Dept., 2001 SD 100,

¶7, 632 NW2d 20, 23. Once we determine that the material facts are undisputed,

our review is limited to whether the law was correctly applied. Schulte v.

Progressive N. Ins. Co., 2005 SD 75, ¶5, 699 NW2d 437, 438. We will affirm the

trial court if there is any legal basis to support its ruling. Id. (citing Kobbeman v.

Oleson, 1998 SD 20, ¶4, 574 NW2d 633, 635).

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[¶13.] 1. Whether the circuit court erred in granting summary
judgment for the Township on the nuisance claim.

[¶14.] Krier argues that by failing to pave Garfield Avenue, the Township is

in violation of its duty to maintain it, which is a nuisance.

[¶15.] Nuisance is defined in SDCL 21-10-1 as:

[U]nlawfully doing an act, or omitting to perform a duty,
which act or omission either:

(1) Annoys, injures, or endangers the comfort, repose, health,
or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct, or
renders dangerous for passage, any lake or navigable river, bay,
stream, canal, or basin, or any public park, square, street, or
highway;
(4) In any way renders other persons insecure in life, or in the use of
property.

(emphasis added).

[¶16.] SDCL 31-13-1 provides that “[t]he board of township supervisors shall

construct, repair, and maintain all of the secondary roads within the township.”

The word “shall,” creates an affirmative duty on the Township to repair and

maintain Garfield Avenue.

[¶17.] In Willoughby v. Grim, we examined SDCL 31-13-1 and held that

although a Township can be compelled to maintain secondary roads, courts cannot

impose specific standards by which the repairs are to be made. 1998 SD 68, ¶1, 581

NW2d 165, 166.2 Because no standards for road repair and maintenance exist in

2. Although Willoughby involved an action for mandamus, it applies because
Krier’s nuisance action is based on the Township’s alleged omission to
perform a duty.

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our laws, “[d]etails for repairing and maintaining secondary roads [ ] remain within

the conscientious direction of . . .” the Town ship. 3 Id. ¶10. Krier has no legal right

to dictate the manner in which the repairs are made.

[¶18.] The record shows that the Township has fulfilled its duty to maintain

Garfield Avenue. The road has been graveled and graded on several occasions. The

Township was under no obligation to make the repairs in accord with Krier’s

demands. The trial court did not err in granting summary judgment on the

nuisance claim.

[¶19.] Krier argued in the alternative that the Township’s affirmative act of

graveling Garfield Avenue constituted a nuisance. However, SDCL 21-10-2 is clear

that “[n]othing which is done or maintained under the express authority of a statute

can be deemed a nuisance.” Because the Township was repairing and maintaining

Garfield Avenue pursuant to a statutory obligation, its acts do not constitute a

nuisance. See Hedel-Ostrowski v. City of Spearfish, 2004 SD 55, ¶13, 679 NW2d

3. Krier claims the Township neglected its duty under SDCL 31-13-49. That
statute provides:

In the resolution of necessity it may be provided that the township
will pay any portion or all of the cost of resurfacing, rebuilding,
or repaving the portion of any street in which pavement has previously
been placed or which has been previously constructed within the
township.

Id. Krier does not argue that the Township has refused to pay for any
portion of resurfacing Garfield Avenue. Instead, he argues that the
Township is under an obligation to repave it. However, the statute is clear
that the Township can “resurfac[e], rebuild[], or repav[e].” Id. Thus, Krier’s
contentions are at odds with the express language of the statute.

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491, 497 (“The legislature exempts from the definition of nuisance those things done

or maintained under statutory authority”).

[¶20.] 2. Whether the circuit court erred in granting summary
judgment in favor of the Township on Krier’s inverse
condemnation claim.

[¶21.] Krier brought his inverse condemnation claim under Article VI, section

13 of our State Constitution, which provides: “Private property shall not be taken

for public use, or damaged, without just compensation which will be determined

according to legal procedure established by the Legislature and according to § 6 of

this article.” Article VI, section 13 of our Constitution differs from the Fifth

Amendment of the Federal Constitution in two key respects. First, and although

not relevant to the present issue, we impose “public use” requirements that are

more strict than the federal baseline. Benson v. State, 2006 SD 8, ¶42, ___ NW2d

___ (citing Ill. Cent. R.R. Co. v. E. Sioux Falls Quarry, 33 SD 63, 144 NW 724 (1913)

(adopting the “use by the public” test)). Second, our Constitution requires that the

government compensate a property owner not only when a taking has occurred, but

also when private property has been “damaged.” The Federal Constitution does not

contain a “damage” clause. Compare SD Const art VI, § 13 with US Const amend 5.

[¶22.] Under the Federal Constitution, a plaintiff must assert one of four

types of takings: (1) a per se physical taking under Loretto v. Teleprompter

Manhattan CATV Corp., 458 US 419, 102 SCt 3164, 73 LEd2d 868 (1982); (2) a per

se regulatory taking which deprives a landowner of all economically viable use of his

property pursuant to Lucas v. South Carolina Coastal Council, 505 US 1003, 1014,

112 SCt 2886, 2895, 120 LEd2d 798 (1992); (3) a regulatory taking under Penn

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Central Transportation Co., v. City of New York, 438 US 104, 98 SCt 2646, 57

LEd2d 641 (1978); or (4) a land-use exaction violating the standards set forth in

Nollan v. California Coastal Commission, 483 US 825, 831-32, 107 SCt 3141, 3147-

49, 97 LEd2d 677 (1987), and Dolan v. City of Tigard, 512 US 374, 384, 114 SCt

2309, ___, 129 LEd2d 304 (1994). Benson, 2006 SD 8, ¶41, __ NW2d at __ (citing

Lingle v. Chevron USA Inc., ___US___, 125 SCt 2074, 2087, 161 LEd2d 876 (2005)).

[¶23.] Our case law provides that the “damage” clause in our State

Constitution affords more rights to our citizens than the Fifth Amendment to the

Federal Constitution. Searle v. City of Lead examined the history of the damage

clause:

The constitutional provision is unquestionably a wise and
just one, and well calculated to protect property owners
from injustice and wrong on the part of municipal or other
corporations or individuals invested with the privilege of
taking private property for public use, and should be
given a liberal construction by the courts, in order to
make it effectual in the protection of the rights of the
citizen. The words “or damaged” were, without doubt,
added to the usual provisions contained in earlier
constitutions for the purpose of extending the remedy to
incidental or consequential injuries to property, not
actually taken for public use, in the ordinary acceptation
of that term[.]

10 SD 312, 317-18, 73 NW 101, 103 (1897). Thus, the South Dakota Constitution

provides an additional theory by which a plaintiff may bring a claim for damages

against the state. 4 In State Highway Commission v. Bloom, we noted that:

4. The North Dakota Supreme Court recognized that the words “or damaged”
affords more protection than the federal constitution. King v. Stark County,
67 ND 260, 271 NW 771, 773-74 (1937). By 1937, almost every state had
(continued . . .)
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Under the taking and damaging clause of our constitution
. . . it is a basic rule of this jurisdiction governing
compensation for consequential damages that where no
part of an owner’s land is taken but because of the taking
and use of other property so located as to cause damage to
an owner’s land, such damage is compensable if the
consequential injury is peculiar to the owner’s land and
not of a kind suffered by the public as a whole.

77 SD 452, 461, 93 NW2d 572, 577 (1958). We further noted that “[t]his rule has

been applied in a number of South Dakota cases involving a change of street grade

to the damage of abutting property not physically invaded.” Id. (citing Searle, 10

SD 312, 73 NW 101; Whittaker v. City of Deadwood, 12 SD 608, 82 NW 202 (1900)).

[¶24.] In Hurley v. State, we recognized that the consequential damages rule

extends beyond the change of street grade cases. 82 SD 156, 161-62, 143 NW2d

722, 725 (1966). Specifically, we held that under the damage clause “a landowner

may claim compensation for the destruction or disturbance of easements of light

and air, and of accessibility, or of such other intangible rights as he enjoys in

connection with and as incidental to the ownership of the land itself.” Id. at 161,

143 NW2d at 725 (citation omitted). Hurley involved the state’s creation of a

barrier that impaired the plaintiff’s right of access to a road abutting their property.

Id. at 159, 143 NW2d at 724. Ultimately, the state was required to compensate the

plaintiffs for the obstruction. Id. at 164, 143 NW2d at 726.

[¶25.] Our precedent involving the damage clause is not entirely consistent.

In Hyde v. Minnesota D. & P. Railway Co., the Court stated that the words “or

_________________________
(. . . continued)
amended its constitution to include the “or damages” words. Id. at 774 (citing
Lewis, Eminent Domain (3d Ed) §§ 363-64).

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damaged” did not broaden the effect of our constitutional provision over what it

would have been had the word “taken” been used alone. 29 SD 220, 228-29, 136 NW

92, 96 (1912). Hyde held that the damages clause did not extend the right of

recovery “to include that for any injury for which damages could not have been

recovered at common law.” Id. Hyde is a two-to-one plurality opinion that is nearly

one hundred years old. It has been impliedly overruled by both Bloom and Hurley.

To the extent that Hyde conflicts with Bloom, Hurley, and the plain language of

Article VI, section 13, it is expressly overruled.

[¶26.] A plaintiff can recover under the consequential damages rule if he or

she can prove “the consequential injury is peculiar to [their] land and not of a kind

suffered by the public as a whole.” Bloom, 77 SD at 461, 93 NW2d at 577; see also

Hurley, 82 SD at 162, 143 NW2d at 725. The injury to the plaintiff “must be

different in kind and not merely in degree from that experienced by the general

public.” Hurley, 82 SD at 162, 143 NW2d at 726 (citing Hendrickson v. State, 267

Minn 436, 127 NW2d 165 (1964)).

[¶27.] Krier brought this action under the consequential damages theory. He

does not argue that the Township changed the grade of Garfield Avenue, or that it

blocked his right of access to Garfield Avenue or his property. Indeed, the

Township, through its repair of the road and removal of the gate, has actually

increased access to Krier’s property from the south. Krier’s argument is that the

dust and gravel from Garfield Avenue continually invades his property and has

diminished its value.

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[¶28.] Krier does not claim the injury to his property is unique from that

suffered by other landowners, except that he built his home prior to the resurfacing

of Garfield Avenue, whereas the other homes were built afterwards. Thus, Krier

contends that only his property has diminished in value as a result of the

resurfacing. Krier is confusing the damages resulting from the injury with the

injury. The injury to Krier’s property is the same as the injury to the other

properties. It differs only in amount or degree. The fact that a plaintiff suffers a

higher degree of injury or damages will not entitle him to recovery under the

consequential damages rule. 5 Hurley, 82 SD at 163, 143 NW2d at 726. Krier has

failed to produce any evidence of a separate and distinct injury and, as a result, has

made no showing the circuit court erred in granting summary judgment for the

Township.

[¶29.] 3. Whether the circuit court erred in taxing disbursements
in favor of the Township.

[¶30.] Krier’s final argument is that the circuit court erred in taxing

disbursements of $657.08 in favor of the Township. SDCL 15-17-37 provides:

The prevailing party in a civil action or special proceeding may
recover expenditures necessarily incurred in gathering and
procuring evidence or bringing the matter to trial. Such
expenditures include costs of telephonic hearings, costs of
telephoto or fax charges, fees of witnesses, interpreters,
translators, officers, printers, service of process, filing, expenses
from telephone calls, copying, costs of original and copies of
transcripts and reporter’s attendance fees, court appointed
experts, and other similar expenses and charges. These

5. The Township invites us to address the extreme burden that would be placed
on rural townships if compensation was required every time they graveled a
secondary road. However, we need not address the Township’s argument to
reach our decision in the present case.

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expenditures are termed “disbursements” and are taxed
pursuant to [SDCL] 15-6-54(b).

Krier fails to specify his objections to the taxation of disbursements by the circuit

court. Instead, he generally relies on SDCL 15-17-52, which provides that “[t]he

court may limit the taxation of disbursements in the interests of justice,” and SDCL

15-17-53, which provides that a trial court may disallow taxation of disbursements

that would be “oppressive or work a hardship.” However, in the absence of specific

objections to the taxation of disbursements, there is no showing of error.

[¶31.] The statutes are clear that disbursement awards are within the

discretion of the trial court. Nelson v. Nelson Cattle Co., 513 NW2d 900, 906 (SD

1994). Krier has failed to show where the trial court has abused its discretion.

[¶32.] Affirmed.

[¶33.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

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