581 N.W.2d 165 (S.D. 1998), 20174, Willoughby v. Grim

Docket Nº:20174.
Citation:581 N.W.2d 165, 1998 SD 68
Opinion Judge:[8] The opinion of the court was delivered by: Konenkamp, Justice.
Party Name:Harvey WILLOUGHBY, Velma Willoughby, Eugene Kirsch, Les Hertz, Kathy Hertz, Jack Gunvordahl, Belinda Gunvordahl, Patrick Koerner, Gayle Koerner, Lorraine Gunvordahl, Melvin Juran and Charlene Joran, Petitioners and Appellees, v. Richard GRIM, Mark Williams, Curly Haisch, David Marts, and Phyllis Marts, as Whetstone Township Board, Respondents and A
Attorney:[6] J. M. Grossenburg, Grossenburg Law Office, Winner, SD Attorneys for Petitioners and Appellees. Rick Johnson, Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, SD Attorneys for Respondents and Appellants.
Case Date:July 01, 1998
Court:Supreme Court of South Dakota
 
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Page 165

581 N.W.2d 165 (S.D. 1998)

1998 SD 68

Harvey WILLOUGHBY, Velma Willoughby, Eugene Kirsch, Les

Hertz, Kathy Hertz, Jack Gunvordahl, Belinda Gunvordahl,

Patrick Koerner, Gayle Koerner, Lorraine Gunvordahl, Melvin

Juran and Charlene Joran, Petitioners and Appellees,

v.

Richard GRIM, Mark Williams, Curly Haisch, David Marts, and

Phyllis Marts, as Whetstone Township Board,

Respondents and Appellants.

No. 20174.

Supreme Court of South Dakota.

July 1, 1998

Considered on Briefs March 25, 1998.

Page 166

J.M. Grossenburg of Grossenburg Law Office, Winner, for petitioners and appellees.

Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, for respondents and appellants.

KONENKAMP, Justice.

¶1 The question in this appeal is whether a township board may be compelled by writ of mandamus to repair a secondary road to specifications set by the circuit court. Mandamus is a proper remedy to require the board to comply with its statutory duty to maintain secondary roads, but we conclude that absent legislative standards for township highways, mandamus cannot dictate the character of the repairs. Affirmed in part and reversed in part.

Facts

¶2 In 1959, Harvey Willoughby bought a three-acre parcel on Lake Francis Case. He subdivided it into five lots and negotiated an easement for a quarter mile private road connecting the lots to the nearest township road. Petitioners now own cabins on these lots. The cabin area is remote. To reach it, one travels north on Highway 1806 from near Bonesteel, South Dakota, then follows a gravel township highway the parties call the "cabin road." It begins in Schriever Township, passes through another township, and ends in Whetstone Township, where the last

Page 167

two miles wend through sloping Missouri River breaks.

¶3 Considering the terrain it crosses, the cabin road is difficult to maintain. None of the petitioners live on site in the winter, but they and their guests regularly visit the area during the rest of the year. When rainfall amounts periodically increase, as they have since 1994, the cabin road deteriorates into "gumbo" and mud flows from surrounding hills, filling ditches and plugging culverts, ultimately encroaching on the road itself. In the past twenty years, the cabin owners and their guests can attest to many instances when their vehicles became stuck on impassable parts of the road, even with four-wheel-drive vehicles. Their greatest concern is being stranded during an emergency.

¶4 The board of supervisors for Whetstone Township hired a contractor to dig away slides flowing onto the road, and to install new culverts for diverting excess water. Fifteen loads of gravel were laid on the road both in 1994 and 1995. In 1996, the Township spent $7,600 for culverts and dirt work. Yet the road remains nearly impassable after heavy rains. The board plans to haul more dirt away from the slide areas and to use perforated pipe to drain a nearby spring that contributes to the mud slides. Because the cabin road leads to a private seasonal enclave, closed to the public, the board declared it a "minimum maintenance road" under SDCL 31-13-1.1. To qualify for this designation, roads must be "used only occasionally or intermittently for passenger and commercial travel." Id.

¶5 Petitioners wrote letters to the board, attended Township meetings, and even contributed money for road repairs. When confronted with accusations of undue delay, the supervisors declared they were still considering how best to proceed. Dissatisfied with the board's efforts, petitioners sought a writ of mandamus. After a hearing, the circuit court found the supervisors had violated their statutory duties and granted the writ ordering the board to act within sixty days to (1) "raise and crown" the road or move it; (2) "construct appropriate ditches for said road in a manner not less than that recommended by the county highway superintendent" during his trial testimony; (3) "make said road usable under expected conditions normally existing in the area"; and (4) remove the minimum maintenance signs. 1 The board appeals questioning whether the circuit court can use mandamus to direct how and when repairs and modifications must be made to a township road.

Analysis and Decision

¶6 Circuit courts possess discretion in deciding whether to grant a writ of mandamus; thus, the appropriate standard of review on appeal is abuse of discretion. Sorrels v. Queen of Peace Hosp., 1998 SD 12, p 7, 575 N.W.2d...

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