Darnall v. State

Decision Date03 March 1961
Docket NumberNo. 9859,9859
Citation108 N.W.2d 201,79 S.D. 59
PartiesJay DARNALL and Helen Darnall, Plaintiffs and Respondents, v. STATE of South Dakota, and Ralph Herseth, M. W. Clarkson, John A. Engel, and Guy G. Gleason, as members of the State Highway Commission of the State of South Dakota, Defendants and Appellants.
CourtSouth Dakota Supreme Court

John B. Wehde and Robert V. Haeder, Asst. Attys. Gen., and Parnell J. Donohue, Atty. Gen., Pierre, on the brief, for defendants and appellants.

Joseph M. Butler, Bangs, McCullen, Butler & Foye, and H. F. Fellows, Rapid City, and T. R. Lehnert, Rapid City, on the brief, for plaintiffs and respondents.


This is what plaintiff terms an inverse condemnation action against the state of South Dakota and the members of the State Highway Commission for damages for claimed loss of access to a highway. Plaintiffs are the owners of three lots on the edge of the village of Piedmont with 150 feet of frontage on the west side of First Street; on these were a small cafe, a two-unit and a four-unit cabin and a gas pump. The street was 80 feet in width and designated as U. S. Highway 14 and State Highway 79. It had a blacktop surface of standard width with two lanes of travel from which motorists could drive into plaintiffs' property. Most of plaintiffs' business came from tourists in summer and some truckers during the year. In 1958 the state took proceedings to construct Interstate Highway No. 90 in that vicinity as a controlled-access highway with two separated roads of two lanes each. In this construction the blacktop surface of Highways 14 and 79 was not changed, except to remove the old surface and replace it with a new blacktop surface at the same level and width; neither was any change made which in any way interfered with or limited the access of plaintiffs to Highways 14 and 79 or persons using it. The construction of which plaintiffs complain is that a concrete curb and gutter was installed on the east side of this two-lane blacktop surface, which separated Highways 14 and 79 from the new Interstate. This curb and another about two feet farther east enclose a blacktopped walkway; they prevent traffic on 14 and 79 from entering the Interstate and prevent traffic on the Interstate from entering 14 and 79, except at two interchanges nearly a mile north and south of plaintiffs' property. The exact location of these curbs does not appear nor was it shown that they occupied any part of the property to which plaintiffs had title subject to the easement for street or highway purposes. As owners of the land bounded by a road or street plaintiffs are presumed to own to the center of the way unless the contrary be shown. SDC 51.0704. This burden was on plaintiffs and it will be presumed that the original highway was laid out half on each owner. SDC 1960 Supp. 28.0113. There was no interference with or change in the highway on the west side or of any part of the traveled portion. The evidence indicates that only the former ditch on the east side of the traveled and blacktopped surface of the highway was occupied by the Interstate highway. The southbound and the northbound roads of the Interstate were separated from each other by a ditch. Traffic regulations and signs require the northbound traffic to drive on the east road of the Interstate; this diverts all northbound traffic to it, and with the ditch prevents such traffic from crossing over to plaintiffs' property; all of this road was constructed completely to the east of the old highway right of way.

Trial to a jury resulted in a verdict for plaintiff for $7,000 upon which a judgment was entered against the state. The assignments of error challenge the court's instructions, denial of the state's motion for a directed verdict, for judgment notwithstanding the verdict and the judgment.

Division I. At oral argument the question of sovereign immunity was raised by a member of the court. It was not argued in the briefs. Immunity of a sovereign state may not be waived by its attorneys, Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S.W.2d 129, or Attorney General, Dunn v. Schmid, 239 Minn. 559, 60 N.W.2d 14. This court may raise the point of its appellate jurisdiction on its own motion, Chicago, M. St. P. & P. R. R. Co. v. Board of Railroad Commissioners, 64 S.D. 297, 266 N.W. 660; and this applies to the jurisdiction of the trial court with equal force. See O'Neal v. Diamond A. Cattle Co., 63 S.D. 481, 260 N.W. 836. By the appeal, an appellate court acquires jurisdiction sufficient to determine that the trial court had or lacked jurisdiction. Beadle County v. Board of County Commissioners, 62 S.D. 86, 251 N.W. 816. That an action cannot be maintained against the state in the absence of statutory or constitutional authority has been long accepted by the courts. Griffis v. State, 68 S.D. 360, 2 N.W.2d 666. It is not an inherent right. Sigwald v. State, 50 S.D. 37, 208 N.W. 162. We have had occasions to deal with it in several other cases. Kansas City Bridge Co. v. State, 61 S.D. 580, 250 N.W. 343; Alexander v. State, 74 S.D. 48, 48 N.W.2d 830.

Division II. Art. VI, Sec. 13 of the State Constitution declares 'Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury * * *.' The power of eminent domain is an inherent right vested in a sovereign state as a necessary attribute thereof. 5 Am.Jur., Eminent Domain, Sec. 7. It has long been established that it was unlawful to take private property for a public use without due compensation even where there was no such constitutional limitation. Hyde v. Minnesota, D. & P. R. Co., 29 S.D. 220, 136 N.W. 92, 40 L.R.A.,N.S., 48. Art. III, Sec. 27 of the Constitution reads 'The legislature shall direct by law in what manner and in what courts suits may be brought against the state.' Under these and similar constitutional provisions, courts have differed as to whether common-law actions may be brought against the state where express consent has not been given. The following indicate their differing viewpoints: Rose v. State, 19 Cal.2d 713, 123 P.2d 505; Tomasek v. State, 196 Or. 120, 248 P.2d 703; Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695; Sale v. State Highway and Public Works Commission, 242 N.C. 612, 89 S.E.2d 290; State v. Leeson, 84 Ariz. 44, 323 P.2d 692; Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 A.L.R.2d 666; Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691; State ex rel. Oklahoma State Highway Comm. v. Alford, Okl., 347 P.2d 215; Weir v. Palm Beach County, Fla., 85 So.2d 865. The conflict is pointed out and the cases with constitutional provisions are reviewed in Springville Banking Co. v. Burton, 10 Utah 2d 100, 349 P.2d 157. Some of the courts hold the eminent domain provision self-executing and allow the suit against the state as an action at common law, that the failure of the legislature to provide a remedy would make the constitutional provision a hollow mockery instead of a safeguard for the rights of citizens. Apparently plaintiffs chose this action at law under the authorities permitting it. At the same time this court had before it on appeal the contention by the same counsel that injunction was the proper remedy. Fauske v. Dean, S.D., 101 N.W.2d 769, 771. There the court recognized the right to an injunction (although denying it on other grounds) where a remedy at law was not available; the phrase used was 'action at law' and referred to a common-law action in circuit court. If no remedy were available the question of the right to such an action would be presented. However, the legislature in this state has provided a remedy in SDC 1960 Supp. 33.0604. There the state has given consent to be sued in the Supreme Court upon a just claim against it which the state auditor has refused to allow. The claimant is required to file a cost bond of $500 with the complaint. 'The trial of such action shall be conducted in accordance with * * * any special rule or order made for trial of the particular case by the Supreme Court.' This section requires payment of the judgment entered out of the State Treasury. By reason of Art. XI, Sec. 9 of the Constitution which provides no money shall be expended or warrant drawn on the state treasurer except in pursuance of an appropriation for the specific purpose first made this court, in Sigwald v. State, 50 S.D. 37, 208 N.W. 162, came to the conclusion that section did not authorize a suit upon a claim for the payment of which there was no available appropriation. As heretofore indicated, plaintiffs did not pursue this remedy but commenced their action in the circuit court which had neither jurisdiction of it nor jurisdiction to enter judgment against the state.

Turning to SDC 1960 Supp. 28.0231 authorizes the State Highway Commission to locate, construct, operate and maintain the South Dakota sections of the Interstate Highways; 28.0233 authorizes the commission to determine its location, acquire right of way and land under SDC 1960 Supp. 28.13A, designate locations of and establish, limit and control points of ingress and egress to ensure their proper operation, prohibit entrance to or egress from them at points not so designated and construct grade separations at intersections; 28.0235 authorizes the use of state highway funds for construction of the Interstate System; 28.13A01 makes it the duty of the state by and through the State Highway Commission to acquire and pay for any land or easements therein for right of way and 57.3814 appropriates funds for the construction, reconstruction, maintenance and repair of highways under the jurisdiction of the commission. When a conventional highway is established, an abutting owner has a right separate and distinct from that of the general public to its use. This includes the right of access, ingress and egress to the highway subject only to the easement of the public. Edmison v. Lowry, 3 S.D....

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