709 N.W.2d 841 (S.D. 2006), 23669, Krier v. Dell Rapids Tp.

Docket Nº:23669.
Citation:709 N.W.2d 841, 2006 SD 10
Opinion Judge:SABERS, Justice.
Party Name:Steve KRIER, Plaintiff and Appellant, v. DELL RAPIDS TOWNSHIP, Defendant and Appellee.
Attorney:Steve Krier, Sioux Falls, SD, pro se appellant., Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD, for defendant and appellee.
Case Date:January 25, 2006
Court:Supreme Court of South Dakota
 
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Page 841

709 N.W.2d 841 (S.D. 2006)

2006 SD 10

Steve KRIER, Plaintiff and Appellant,

v.

DELL RAPIDS TOWNSHIP, Defendant and Appellee.

No. 23669.

Supreme Court of South Dakota

January 25, 2006

Considered on Briefs on Nov. 7, 2005.

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[Copyrighted Material Omitted]

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Steve Krier, Sioux Falls, SD, pro se appellant.

Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD, for defendant and appellee.

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 Township (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,

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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.

[¶ 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 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,

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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 N.W.2d 762, 765 (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.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 N.W.2d 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 N.W.2d 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 N.W.2d 633, 635).

[¶ 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...

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