City of Rapid City v. Boland, No. 12095

CourtSupreme Court of South Dakota
Writing for the CourtZASTROW
Citation271 N.W.2d 60
Decision Date26 October 1978
Docket NumberNo. 12095
PartiesCITY OF RAPID CITY, a Municipal Corporation under the laws of the State of South Dakota, Petitioner and Respondent, v. Edna Kingsbury BOLAND and Vincent H. Boland, Defendants, Cross-Plaintiffs and Appellants. PENNINGTON COUNTY, South Dakota, Defendant, v. STATE of South Dakota, Defendant and Respondent, and Hills Material Company, Defendant.

Page 60

271 N.W.2d 60
CITY OF RAPID CITY, a Municipal Corporation under the laws
of the State of South Dakota, Petitioner and Respondent,
v.
Edna Kingsbury BOLAND and Vincent H. Boland, Defendants,
Cross-Plaintiffs and Appellants.
PENNINGTON COUNTY, South Dakota, Defendant,
v.
STATE of South Dakota, Defendant and Respondent,
and
Hills Material Company, Defendant.
No. 12095.
Supreme Court of South Dakota.
Oct. 26, 1978.
Rehearing Denied Dec. 1, 1978.

Page 62

Horace R. Jackson of Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for petitioner and respondent.

George A. Bangs and Allen G. Nelson of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendants, cross-plaintiffs and appellants.

Camron Hoseck, Asst. Atty. Gen., Pierre, for defendant and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

ZASTROW, Justice.

During the late evening hours of June 9 and the early morning hours of June 10, 1972, a large portion of Rapid City, South Dakota, was inundated by the flood waters of Rapid Creek. In terms of lives lost (over 250) and property destroyed (over 1500 residential and business structures were affected), the flood was one of the greatest disasters in the United States in the twentieth century.

The Governor immediately declared the Rapid City area a disaster beyond local control under the authority of SDCL 33-15-8 and SDCL 33-15-18. Because of the catastrophic nature of the flood, the President issued a major disaster declaration on the basis of an informal request from the Governor. Officials of the Office of Emergency Preparedness were in Rapid City by the afternoon of June 10 to assist the local government in securing federal funds for disaster recovery.

One of the seven categories of funding available for disaster recovery was debris removal. The immediate necessity of debris removal, as testified by the federal officer, was to prevent "the development of mice and rats, flies, and mosquitoes that transmit (and) spread diseases in most disasters, particularly those involving floods;

Page 63

if septic tanks (and sewers) are flooded out, you can have the transmission of bacteria * * * . (I)t is very important that you get (the debris) out (and) take those minimum efforts to prevent disease which might occur, typhoid, malaria and encephalitis with the mosquitoes and tetanus and other diseases of that sort * * * ."

On June 12 and 13, the city council adopted a resolution authorizing the Corps of Engineers to remove the flood debris and clear the flood areas which it and the city department of public works deemed a critical danger to life, health and safety.

The debris removal project (later known as Operation Bulldozer) was divided into two sections. The western portion of the flood area was to be cleared by the Corps of Engineers and the eastern portion by the city. The city secured federal funds of over $2,000,000 and hired three large local contractors to begin the clean up operation immediately. Operation Bulldozer initially carried as much as two hundred truckloads of debris an hour, twenty-four hours a day.

As the operation progressed, city officials were confronted with hundreds of structures within the clean up area that had damage ranging from severe to slight. It was apparent that the demolition of many of the structures would facilitate the debris removal operation. The building inspection department of the city was given the responsibility for determining which structures would be demolished and removed and which would be allowed to remain.

A volunteer committee consisting of the building inspection department employees, local architects and local engineers was formed to establish a method of determining whether a structure was beyond repair. After several proposals were suggested and discussed, a standard form and point system was devised by the committee.

The form provided for the individual evaluation of roof, floor joists, foundation, interior walls, exterior walls, and whether the condition of the structure constituted a hazard. Each category was provided with a point system. Several three-man teams, each including one employee of the building inspection department, inspected the damaged structures. Any structure which received a point total exceeding twenty-eight was tagged for demolition.

Although the inspection procedure was publicized and some property owners were contacted, no actual notice was given to the individual owners that their structures were to be destroyed. As the clean up operation reached a structure tagged for removal, the tag was checked by the city official for authenticity, and after confirmation, the structure was demolished. About one-half of the buildings damaged in the flood were actually demolished during the clean up operation.

Prior to June 9, Mr. and Mrs. Vincent Boland (Boland) were the owners of a six-room rental residence at 104 North Sixth Street in Rapid City. The house was located within a few feet of the north bank of Rapid Creek. On June 15, Mr. Boland went to the property to inspect it for damage. While there, he met and talked to three men who appeared to be inspecting the building.

The inspection team, directed by building inspection department employee David C. Lamb, had inspected the Boland structure on June 15, had evaluated the structure according to the completed form, and had assessed thirty-two points against it. The building was demolished and removed on June 30 by Hills Material Company, one of the contractors in Operation Bulldozer.

Prior to the removal, Mr. Boland and two other individuals had begun to clean the building and had worked for a total of thirty-six to forty hours. They had succeeded in removing the mud from four of the six rooms and by June 30 had boarded up the doors and windows.

Several months later, the city began a condemnation action against the now vacant Boland lot as part of an urban renewal project. Mr. Boland filed a counterclaim against the city, the State of South Dakota, and Hills Material Company, seeking compensation for the value of the house.

Page 64

The counterclaim was tried to the court. The trial court entered a memorandum decision, findings of fact and conclusions of law, holding that the city, the state, and Hills Material Company had been engaged in civil defense functions when the Boland structure was destroyed. It further held that since there was no evidence of misconduct, gross negligence or bad faith by the parties, all were granted sovereign immunity under SDCL 33-15-38. Judgment was therefore entered in favor of the city, the state, and Hills Material Company.

The issue to be resolved is whether the legislature can grant governmental immunity, by statute, for every taking or damaging of private property done in the performance of "civil defense activities."

The civil defense immunity statute in effect at the time of the demolition of the Boland structure was SDCL 33-15-38, which provided in part:

"All functions under this chapter and all other activities relating to civil defense are hereby declared to be governmental functions. Neither the state nor any political subdivision thereof, nor other agencies, nor, except in cases of willful misconduct, gross negligence, or bad faith, any civil defense worker complying with or reasonably attempting to comply with this chapter, or any order, rule or regulation promulgated pursuant to the provisions of this chapter, or pursuant to any ordinance relating to blackout or other precautionary measures enacted by any political subdivision of this state, shall be liable for the death of or injury to persons, or damage to property, as a result of such activity."

The scope of civil defense functions is found in the definition of civil defense under SDCL 33-15-1(1):

"(1) 'Civil defense' shall mean the preparation for and the Carrying out of all emergency functions, other than functions for which military forces are primarily responsible, To prevent, minimize, repair injury and damage resulting from disasters caused by enemy attack, sabotage or other hostile action, or by fire, Flood, snowstorm, windstorm, tornado, cyclone, drought, earthquake, or other natural causes And provide for the relief of distressed humans and livestock In areas where such conditions prevail whether affecting all or only a portion of the state. These functions include, without limitation, fire-fighting services, police services, medical and Health services, rescue, engineering, air-raid warning service, communications, radiological, chemical, and other special weapons of defense, evacuation of persons or livestock from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services, And other functions related to civilian or livestock Protection, together With other...

To continue reading

Request your trial
14 practice notes
  • Colman v. Utah State Land Bd., No. 860331
    • United States
    • Utah Supreme Court
    • April 12, 1990
    ...take immediate action that harms property so as to prevent loss of life or great destruction of property. City of Rapid City v. Boland, 271 N.W.2d 60, 65 (S.D.1978). This exception to the general requirement of just compensation for property taken is explained in 1 Nichols on Eminent Domain......
  • Miller v. Campbell County, Wyo., No. C88-0194J.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • October 2, 1989
    ...immunity under the same circumstances was pending before the state supreme court. That case was City of Rapid City v. Boland, 271 N.W.2d 60 (S.D.1978). As in Poage, the plaintiffs sought compensation for the value of their home, which the city destroyed pursuant to its police powers after i......
  • Brewer v. State, No. S–14916.
    • United States
    • Supreme Court of Alaska (US)
    • November 28, 2014
    ...of the owner of the property to compensation are no greater than in the case of a private individual.”)48 City of Rapid City v. Boland, 271 N.W.2d 60, 66 (S.D.1978) (citations omitted).49 See, e.g., Ralli v. Troop, 157 U.S. 386, 405, 15 S.Ct. 657, 39 L.Ed. 742 (1895) (“By our law, indeed, e......
  • Brewer v. State, No. S–14916.
    • United States
    • Supreme Court of Alaska (US)
    • November 28, 2014
    ...of the owner of the property to compensation are no greater than in the case of a private individual.”) 48. City of Rapid City v. Boland, 271 N.W.2d 60, 66 (S.D.1978) (citations omitted). 49. See, e.g., Ralli v. Troop, 157 U.S. 386, 405, 15 S.Ct. 657, 39 L.Ed. 742 (1895) (“By our law, indee......
  • Request a trial to view additional results
14 cases
  • Colman v. Utah State Land Bd., No. 860331
    • United States
    • Utah Supreme Court
    • April 12, 1990
    ...take immediate action that harms property so as to prevent loss of life or great destruction of property. City of Rapid City v. Boland, 271 N.W.2d 60, 65 (S.D.1978). This exception to the general requirement of just compensation for property taken is explained in 1 Nichols on Eminent Domain......
  • Miller v. Campbell County, Wyo., No. C88-0194J.
    • United States
    • United States District Courts. 10th Circuit. District of Wyoming
    • October 2, 1989
    ...immunity under the same circumstances was pending before the state supreme court. That case was City of Rapid City v. Boland, 271 N.W.2d 60 (S.D.1978). As in Poage, the plaintiffs sought compensation for the value of their home, which the city destroyed pursuant to its police powers after i......
  • Brewer v. State, No. S–14916.
    • United States
    • Supreme Court of Alaska (US)
    • November 28, 2014
    ...of the owner of the property to compensation are no greater than in the case of a private individual.”)48 City of Rapid City v. Boland, 271 N.W.2d 60, 66 (S.D.1978) (citations omitted).49 See, e.g., Ralli v. Troop, 157 U.S. 386, 405, 15 S.Ct. 657, 39 L.Ed. 742 (1895) (“By our law, indeed, e......
  • Brewer v. State, No. S–14916.
    • United States
    • Supreme Court of Alaska (US)
    • November 28, 2014
    ...of the owner of the property to compensation are no greater than in the case of a private individual.”) 48. City of Rapid City v. Boland, 271 N.W.2d 60, 66 (S.D.1978) (citations omitted). 49. See, e.g., Ralli v. Troop, 157 U.S. 386, 405, 15 S.Ct. 657, 39 L.Ed. 742 (1895) (“By our law, indee......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT