Cuka v. State
Decision Date | 05 June 1963 |
Docket Number | No. 9982,9982 |
Citation | 80 S.D. 232,122 N.W.2d 83 |
Parties | Matt M. CUKA, Plaintiff, v. STATE of South Dakota, Defendant. |
Court | South Dakota Supreme Court |
Elmer E. Gemar, Springfield, for plaintiff.
John B. Wehde, Sp. Asst. Atty. Gen., Pierre, for defendant.
This is an original proceeding against the state in which plaintiff seeks to recover $280 according to the terms of an option agreement with the State Highway Commission for right of way on an abandoned highway project. As there are 46 other land owners similar situated this proceeding is in the nature of a 'pilot' case.
The matter was referred to the Hon. James R. Bandy, as Referee, who entered and reported conclusions in favor of the state based upon the following findings of fact:
'1. On or about November 18, 1960, the State Highway Commission of the State of South Dakota, by resolution, determined the necessity to relocate a portion of State Highway Number 50, the same being a part of the Trunk Highway System.
'2. Such relocation required the use of real property owned by the plaintiff which was not then subject to any existing easement for highway purposes.
'3. On December 21, 1960 the State Highway Commission offered to pay the plaintiff $280.00 for such tract of land, 'for highway purposes only.'
Plaintiff contends this is simply an action at law to recover the contract price of land pursuant to the terms of an executed agreement; that the option agreement lost its executory character upon delivery of deed at which time his right to payment became vested; and the fact the state is a party to the contract and the nature and purpose of the land purchase are immaterial factors which do not constitute grounds for the rejection of his claim. We cannot agree.
Because of its sovereign status there is no inherent right to sue the state. Plaintiff's action is brought under the permissive provisions of SDC 1960 Supp. 33.0604 and recovery thereunder is limited to claims for which there is an available appropriation. Sigwald v. State, 50 S.D. 37, 208 N.W. 162; Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W. 343; Brams v. State, 63 S.D. 571, 262 N.W. 89; Pietz v. State, 65 S.D. 52, 270 N.W. 648; Griffis v. State, 68 S.D. 360, 2 N.W.2d 666, and 69 S.D. 439, 11 N.W.2d 138. The essential question presented here then is whether or not there are appropriated funds available to pay for right of way on the abandoned highway project.
The State Highway Commission is charged with the duty of acquiring right of way for the construction or improvement of State Trunk Highways. Its restricted authority and manner of proceeding, in this regard, is set forth in the following statutory provisions: ...
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