Boland v. City of Rapid City

Decision Date03 February 1982
Docket Number13204,Nos. 13121-13131,s. 13121-13131
Citation315 N.W.2d 496
PartiesVincent H. BOLAND, Edna Kingsbury Boland and Combined Cases, Plaintiffs and Appellees, v. CITY OF RAPID CITY, a Municipal Corporation and County of Pennington,Defendants and Third-Party Plaintiffs and Appellants, v. STATE of South Dakota, Third-Party Defendant and Appellee.
CourtSouth Dakota Supreme Court

George A. Bangs of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiffs and appellees.

Horace R. Jackson of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendants and third-party plaintiffs and appellants.

Camron Hoseck, Asst. Atty. Gen., Pierre, for third-party defendant and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

MORGAN, Justice.

This action arose from the destruction of appellees' property by appellants, Rapid City and Pennington County, under "Operation Bulldozer," a cleanup operation following the 1972 flood which inundated a large part of the Rapid City area. The Circuit Court dismissed appellees' action against the State, but upheld their actions against appellants. The trial court also denied appellees' request for attorney fees. This appeal concerns appellants' liability for the destruction of appellees' property and the trial court's denial of appellees' request for attorney fees. We affirm.

This case was before us on another occasion when some of the appellees appealed an adverse decision on their counterclaim to the City's condemnation action. The City sought condemnation of a lot made vacant by removal of the building under the auspices of "Operation Bulldozer." Our decision, City of Rapid City v. Boland, 271 N.W.2d 60, 68 (S.D.1978) (Boland I ), held,

If property is intentionally, purposefully and deliberately destroyed or damaged for the public use, benefit or convenience by a public officer in the performance of his official duties, the governmental entity must compensate the owner of the property unless the destruction was to prevent a public disaster or a summary abatement of a nuisance imminently hazardous to the public health, safety or welfare.

We reversed the trial court and remanded for findings on,

"Whether on the day of destruction of the (appellees') property there was an imminent and impending peril to the public in the Rapid City area, and, if so, was it necessary or did it reasonably appear to be necessary, to destroy the (appellees') property to prevent the spread of such peril(?)" 1

We will not reiterate the facts detailed in Boland I, 271 N.W.2d at 62, except as necessary to this decision.

On remand the trial court made findings of fact and conclusions of law incorporating its memorandum decision and entered individual judgments for each case. Appellants raise some thirteen issues in their appeal, some of which we deal with conjunctively. Boland I, however, framed the principal legal issue contested in this appeal where that case said, "If the answers to these questions are in the negative, then the Bolands must receive compensation, for in effect their property was taken by an exercise of the power of eminent domain." Boland I, 271 N.W.2d at 68.

To come within the stricture of Boland I and avoid compensating appellees, appellants contend that an imminent and impending peril of epidemic existed, and that it was immediately necessary to clear the area of debris to prevent the epidemic. They urge that the Governor's declaration of emergency is conclusive upon the courts as to determining the existence and extent of the emergency. In this respect, they further argue that the destruction of the private property was a valid exercise of police power where health officials had found a general threat of disease and plague.

These arguments simply repeat issues already decided by Boland I. On remand, the trial court answered the first issue of appellant's argument in the affirmative.

(A)t the time these properties were destroyed by Operation Bulldozer, there was an imminent and impending peril to the public health in the Rapid City area from disease, necessitating debris removal;

The trial court, however, answered the second question of the argument in the negative.

That the properties, subject to this lawsuit were not debris and were not destroyed to alleviate the public health problems;

That the structures destroyed in the instant lawsuit were taken primarily because of their lack of structural integrity;

That it was not necessary, nor did it reasonably appear to be necessary, to destroy these structures to prevent the spread of disease.

"It is not the function of this Court to question the lower court's findings of fact unless such factual determinations are 'clearly erroneous.' " Pudwill v. Brown, 294 N.W.2d 790, 792 (S.D.1980); SDCL 15-6-52(a). "A trial court's rulings and decisions are presumed to be correct and this court will not seek reasons to reverse. A trial court's findings of fact are also presumptively correct and the burden is upon appellant to show error in the findings." Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980) (citations omitted). We are unable to say that the trial court's findings were clearly erroneous. Indeed, the record is replete with evidence to support the trial court's findings.

The (building inspection) form provided for the individual evaluation of the roof, floor joists, foundation, interior walls, and exterior walls, and whether the condition of the structure constituted a hazard. * * *

The form was directed at the structural soundness of the building. It was not designed to measure a building in relationship to possible epidemic or other public calamity. * * *

There was no unanimity among the witnesses as to the proper use of the inspection form. Some inspection teams did not use it at all. The three-man inspection teams were apparently vested with unreviewable authority to order the destruction of any building in the flood area .... the decision to demolish (appellees') buildings was made on the basis of structural soundness of the buildings, not on the basis of any theory of prevention of epidemic. * * *

The court concludes that whatever possibility of epidemic existed, it was not so imminent and impending as to justify the destruction of repairable buildings. The court is not convinced that the destruction of (appellees') buildings served in any meaningful or significant manner to alleviate the possibility of epidemic.

We hold that the evidence supports the trial court's findings of fact that the instant properties, destroyed by "Operation Bulldozer," were destroyed by the City and the County in the exercise of the power of eminent domain. The property owners are entitled to just compensation for these properties.

This appeal also raises a most interesting question: whether the State owes the duty to compensate for the taking of property where the Governor exercised the emergency powers of SDCL ch. 33-15? The trial court found that the Governor did not assume control over local civil defense functions. Instead, the State's role was limited to advising local governmental units.

Since this case concerns joint efforts by state and local governments which resulted in an 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 county's agent for purposes of road construction. Hurley first sued the City of Rapid City. On appeal, the court distinguished Bogue because a similar statute was lacking. It also denied relief, because the work was fully controlled, initiated and completed by the State Highway Commission. Id., 121 N.W.2d at 25. Later, Hurley prevailed in a suit against the state. Hurley v. State, 82 S.D. 156, 143 N.W.2d 722 (1966). Unlike Bogue, the Hurley decision held the state liable for compensation to landowners whose property was taken for road construction. Although these cases reach different results, their rule is consistent: where local government is an agent of state government, in law or fact, the state is liable for claims made under the just compensation clause of Article VI, § 13 of the South Dakota Constitution. See also, Iseman Corporation v. Rapid City, 81 S.D. 534, 137 N.W.2d 885, 887 (1965); Austin v. Hennepin County, 130 Minn. 359, 153 N.W. 738, 740 (1915); Gruntorad v. Hughes Brothers, 161 Neb. 358, 73 N.W.2d 700, 706-707 (1955); Henry Shenk Co. v. City of Erie, 352 Pa. 481, 43 A.2d 99, 100 (1945).

South Dakota Codified Laws ch. 33-15 envisions joint participation by local, state and federal governments in emergency and disaster services. SDCL 33-15-2, 3, 8, 8.1. But, neither participant is expressly made the agent of the other. Therefore, we must look to the facts and circumstances surrounding "Operation Bulldozer."

In this regard the trial court noted in its memorandum opinion,

City and county government was functional almost immediately and remained functional throughout the entire period. The State of South Dakota and its officers and employees served and assisted only in a liaison and advisory capacity, making their abilities and resources available to city and county government. The State did not authorize, control or participate in the destruction of the plaintiffs' structures. State officials did not direct, order or control local governing officials of the city or county governments. The State exercised no control over the decision-making authority nor did the State have any voting authority on city or county government. Operation bulldozer was brought into existence as a result of city and county governmental action. The Governor of South Dakota did not assume control over local governmental operations as a result of his disaster declaration of June 10, 1972 or his declaration of necessity of June 12,...

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