Keogan v. Bergh, 14228

• Decision Date: 13 February 1984
• Docket Number: No. 14228,14228
• Citation: 348 N.W.2d 462
• Parties: Terence KEOGAN and Margaret B. Keogan, Plaintiffs and Appellants, v. Philip BERGH, George Blec, Ralph Mack, Marlys Mueller and Edward Spevak, as Commissioners for the County of Codington, State of South Dakota; and the County of Codington, State of South Dakota, a Public Corporation, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 462

348 N.W.2d 462

Terence KEOGAN and Margaret B. Keogan, Plaintiffs and Appellants, v. Philip BERGH, George Blec, Ralph Mack, Marlys Mueller and Edward Spevak, as Commissioners for the County of Codington,

State of South Dakota; and the County of Codington, State

of South Dakota, a Public Corporation, Defendants and

Appellees.

No. 14228.

Supreme Court of South Dakota.

Considered on Briefs Feb. 13, 1984.

Decided May 2, 1984.

Todd D. Boyd of Gunderson & Evenson, Clear Lake, for plaintiffs and appellants.

Roger W. Ellyson, Jr., Codington County State's Atty., Watertown, for defendants and appellees.

HENDERSON, Justice.

This is a civil appeal from a judgment denying a reopening of two section-line highways. We affirm.

On July 1, 1981, a petition signed by twenty-six residents of Codington County, South Dakota, was filed with the Board of County Commissioners of Codington County (Board), requesting they reopen and locate two section-line highways in Richland Township, Codington County. These highways had been vacated by the Richland Township Board of Supervisors (Township) on August 31, 1978.

The County Board denied the petition. Appeal was taken to the Circuit Court, Third Judicial Circuit, pursuant to SDCL 7-8-27 on June 29, 1981, and a trial de novo was held. Judgment was entered on February 22, 1983, affirming the Board's decision. Two of the petitioners, Terence Keogan and Margaret B. Keogan (appellants), appeal the circuit court judgment, raising four issues for our disposition.

We are first asked to determine whether the trial court erred in concluding appellants had no standing to appeal the Board's decision pursuant to SDCL 7-8-27. Second, whether consideration of collateral matters by way of historical background is beyond the scope of a de novo trial. Third, whether the trial court erred in concluding the Board had no authority to relocate a secondary highway previously vacated by the Township. And, finally, whether the trial court applied the wrong burden of proof.

I.

SDCL 7-8-27 provides in part: "From all decisions of the board of county commissioners upon matters properly before it, there shall be allowed an appeal to the circuit court by any person aggrieved ...."

The concept of an "aggrieved party" is not new to this Court ... the first in-depth analysis of "aggrieved party" regarding a test for standing was made by this Court in an appeal from a board of county commissioners' decision. Barnum v. Ewing, 53 S.D. 47, 220 N.W. 135 (1928). In Barnum we set forth the following test: "[W]e think ['any person aggrieved'] can only include such persons when they are able affirmatively to show that they are 'aggrieved' in the sense that by the decision of the board they suffer the denial of some claim of right either of person or property ...." Id. at 53, 220 N.W. at 138.

Application of Northern States Power Co., 328 N.W.2d 852, 855 (S.D.1983) (brackets in original).

The trial court determined that appellants did not have a claim of right or privilege to location of the proposed highways. Supposedly, having no claim of right, appellants were not "aggrieved" persons and, therefore, had no standing to appeal the Board's decision. We disagree. Appellants did indeed suffer denial of a claim of right by having the two section-line highways remain vacated. The Board's decision denies them the right to the shortest, most direct access to their farm property. Because of the highway closing, they and their tenants are denied direct ingress and egress to farmland, and must take a circular route in order to move farm equipment and machinery.

The trial court erred in concluding appellants are not aggrieved persons for purposes of standing. Appellants were not prejudiced in any way by this error, however. Despite its conclusion, the trial court proceeded to determine the other issues on appeal.

II.

At trial, the parties stipulated to the following historical facts:

1) On August 25, 1978, a petition was filed with the Richland Township Board of Supervisors requesting that the two roads at issue herein be vacated.

2) On August 31, 1978, the Richland Board of Supervisors vacated the two roads.

3) Notice of appeal was served September 20, 1978.

4) An election was held deciding the issue as to whether the Township Board's decision to vacate would stand.

5) Election results were 35 to 1 in favor of vacation.

6) The Township Board's decision was appealed to the Codington County Board of Commissioners.

7) They affirmed Township Board's decision.

8) County Board's decision was appealed to the Circuit Court, Third Judicial Circuit, which dismissed the appeal.

These facts were ultimately incorporated in the trial court's findings of facts and thus were considered in determining the outcome of the de novo trial. Though appellants stipulated, they did so with the objection that none of the matters were relevant to the present proceeding. On this appeal, they again argue that these historical matters are irrelevant and may not be considered because of the inherent nature of a de novo proceeding. We disagree. Appellants' objection rests on a misinterpretation of the scope of a de novo trial on appeal from an administrative agency.

"An appeal from an action of the county commissioners shall be heard and determined de novo in circuit court. SDCL 7-8-30. Thus, the circuit court should determine anew the question ... independent of the county commissioners' decision." Sioux Valley Hospital Ass'n v. Jones County, 309 N.W.2d 835, 837 (S.D.1981). "The court exercises independent judgment ...." Chicago & North Western Ry. Co. v. Schmidt, 85 S.D. 223, 227, 180 N.W.2d 233, 235 (1970). This means that the trial court should determine the issues before it on appeal as if they had been brought originally. The court must review the evidence, make findings of fact and conclusions of law, and render judgment independent of the agency proceedings. This the trial court did. The historical background, as stipulated to by the parties, was collateral to the Board's decision from which the appeal was taken. Though the evidence dealt with similar concerns before the same Board, these matters all occurred prior to the petition being adjudicated herein. As noted in State v. Cody, 322 N.W.2d 11, 12 n. 2 (S.D.1982),

[j]udicial notice may be taken of facts once judicially known.... A court may generally take judicial notice of its own records or prior proceedings in the same case and may take judicial notice of an original record in proceedings which are engrafted thereon or ancillary or supplementary thereto.

Review of these facts was within the scope of an independent determination of the issues. Further, as the stipulated facts provided an historical background for the issues before the court, they were certainly relevant and aided in a resolution of the issues. The trial court did not err in considering the previous proceedings.

III.

The County Commissioners may locate, change or vacate "any public highway not within the limits of any city or incorporated town" upon a proper petition. SDCL 31-3-22. Appellants maintain this grants unrestricted authority to any board of county commissioners to locate any highway. The trial court, however, believed that the statutory scheme for highway administration necessitated an interpretation restricting the location authority to new roads or highways which have never before been in existence or which have been created by law but never established. Therefore, the...