Hurley v. Rapid City

Decision Date11 April 1963
Docket NumberNo. 10021,10021
Citation121 N.W.2d 21,80 S.D. 180
PartiesMarcellus S. HURLEY, and Vora Jane Hurley, Plaintiffs and Respondents, v. CITY OF RAPID CITY, a Municipal Corporation, Defendant and Appellant.
CourtSouth Dakota Supreme Court

H. R. Jackson, Sp. Asst. City Atty., Rapid City, for defendant and appellant.

Bangs, McCullen, Butler & Foye, and Sieler & Brady, Rapid City, for plaintiffs and respondents.

BIEGELMEIER, Judge.

This is an action for damages against a city for partial deprivation of right of access. Plaintiffs are owners of real property situated on the corner of Omaha Street and West Boulevard in Rapid City. On October 20, 1958, defendant city passed a resolution, which in part stated:

'WHEREAS, the State Highway Commission, hereinafter designated as the Commission, proposes the improvement of a street or highway identified as West Boulevard, Federal Aid Interstate Project No. 1-A90-2(9)59 Pennington County, hereinafter designated as the Project, extending through the City of Rapid City, South Dakota, hereinafter referred to as the Municipality, located and further described as follows:

'From the North City Limits * * * to * * * the intersection of West Boulevard and Omaha Street,

'WHEREAS, the Commission is desirous of receiving Federal Funds for the improvement of said street or highway, and

'WHEREAS, the Statutes of the State of South Dakota give assent to the provisions of the Federal-aid Highway Act and acts amendatory thereof or supplementary thereto and regulations issued pursuant thereto by the Bureau of Public Roads, Department of Commerce, United States of America, which hereinafter collectively will be designated as the Act, and charge the Commission to do all things necessary fully to carry out the cooperation contemplated and provided for by the Act; and

'WHEREAS, the section of the Project within the Municipality will be subject to the provisions of the Act, and is within the legal jurisdiction of the Municipality for traffic regulations and the control of buildings and other structures; and

'WHEREAS, the construction of the project is conditioned upon the fullfillment of the obligation of the Municipality in a manner satisfactory to the Commission or the Commissioner of Public Roads, or both, or their authorized representatives;

'NOW, THEREFORE, be it resolved for and in consideration of the Commission's undertaking of this Project under the requirements of the Act, that insofar as its legal jurisdiction over the Project is concerned the Municipality assents to the requirements of the Act and pledges its good faith to carrying out the purposes stipulated in the Act, and to this end the Municipality hereby agrees:

'1. That all signs and traffic control devices * * * will be in conformity with the Manual on Uniform Traffic Control Devices * * * approved by the Commission * * *.

'2. That it will not designate a speed limit of less than 50 miles per hour.

'3. That it will prohibit all parking.

'4. That it will not allow access to the project at points other than shown on the plans without prior approval of the Commission, the Commissioner of Public Roads, or both, or their authorized representatives.

'5. That having examined the plans for the project prepared under the supervision of the State Highway Commission * * * the plans as shown are hereby approved.

'6. That the Municipality will enact such ordinances as are necessary to properly enforce any of the above provisions.

'7. That the Mayor is authorized and directed to enter into a mutual agreement with the Commission providing for the undertaking of this project under the consideration described above.'

An agreement that 'all provisions of the Resolution' above were accepted and binding was entered into by the city and the State Highway Commission. The plans referred to showed a physical barrier in the form of a guardrail in the highway along West Boulevard. This barrier was erected adjoining the east side of plaintiffs' lot by the contractors pursuant to contracts awarded by the South Dakota Highway Commission and it prevented access from West Boulevard to plaintiffs' property. No condemnation proceedings had ever been had with reference to this property.

Defendant made a motion to dismiss the action for the reason plaintiffs' complaint failed to state a claim upon which relief could be granted (SDC 1960 Supp. 33.1002) and for judgment on the pleadings. This was based on the amended complaint, stipulations as to facts and exhibits made a part of the record and which it was agreed the court could consider in ruling on the motion. This record was the result of a liberal use of Interrogatories, SDC 1960 Supp. 36.0531, and Admissions, SDC 1960 Supp. 36.0605 and presents the question of legal liability of the city for the damages claimed.

The National System of Interstate and Defense Highways known as the 'Interstate Sytem' is part of a road assistance building plan originating in the 'Federal-Aid Highway Act of 1944', 58 Stat. 838, 842, now in U.S.C.A. Title 23. By definitions in Sec. 101 construction includes rights of way and highways include streets. The routes to be selected by joint actions of state highway departments with the plans and specifications are subject to the approval of the Secretary of Commerce before they are eligible for projects in which Federal funds participate. Sec. 302 requires any state desiring to avail itself of the provisions of the title to have a state highway department with adequate powers to discharge the duties required therein and Sec. 110 a formal project agreement to be entered into by that department and the secretary. Sec. 111 requires the agreement to contain a clause the state will not permit any points of access or exit, in addition to those in the plans approved by the secretary, without his prior approval and other restrictions. Construction is required to be done by, or under the direct supervision of, the State Highway Department.

The South Dakota Legislature by Ch. 104, Laws of 1955, authorized the State Highway Commission, in cooperation with agencies of the U. S. Government to locate and construct the South Dakota part of this Interstate System. It now appears in SDC 1960 Supp. as Sections 28.0231 through 28.0236. Section 28.0233 authorizes the Commission to acquire rights of way, establish, limit and control points of ingress and egress and prohibit entrance to or egress from the Interstate System at points not so designated.

By the admitted facts defendant city did not...

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7 cases
  • Boland v. City of Rapid City, s. 13121-13131
    • United States
    • Supreme Court of South Dakota
    • February 3, 1982
    ...exercise of eminent domain powers, it is analogous to Bogue v. Clay County, 75 S.D. 140, 60 N.W.2d 218 (1953), and Hurley v. Rapid City, 80 S.D. 180, 121 N.W.2d 21 (1963). In Bogue, the county was liable for compensation because the state statute expressly declared that the State was the co......
  • Hurley v. State
    • United States
    • Supreme Court of South Dakota
    • June 21, 1966
    ...owner for loss of access to West Boulevard in Rapid City. The action originated against the city. On appeal, Hurley v. City of Rapid City, 80 S.D. 180, 121 N.W.2d 21, it was determined the city was not legally responsible for the damages claimed. Plaintiffs then filed a claim in the amount ......
  • Wilson v. Hogan
    • United States
    • Supreme Court of South Dakota
    • May 23, 1991
    ...Oil, 295 N.W.2d at 737. The state legislature has "paramount control over all the public highways of the state[.]" Hurley v. Rapid City, 80 S.D. 180, 121 N.W.2d 21, 24 (1963). State may delegate its "paramount control" over public highways to municipalities. Id. SDCL 9-45-1 Every municipali......
  • State v. Eidahl, 17986
    • United States
    • Supreme Court of South Dakota
    • November 19, 1992
    ...on a city street, she was traveling on a "highway" as defined by South Dakota law and used in SDCL 32-26-22. See, Hurley v. Rapid City, 80 S.D. 180, 121 N.W.2d 21 (1963). See also, SDCL 31-1-1 ("highway" includes every way or place open to public for purposes of vehicular travel).2 We note ......
  • Request a trial to view additional results

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