Krier v. Dell Rapids Tp.

Decision Date25 January 2006
Docket NumberNo. 23669.,23669.
Citation2006 SD 10,709 N.W.2d 841
PartiesSteve KRIER, Plaintiff and Appellant, v. DELL RAPIDS TOWNSHIP, Defendant and Appellee.
CourtSouth Dakota Supreme Court

Steve Krier, Sioux Falls, SD, pro se appellant.

Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD, for defendant and appellee.

SABERS, Justice.

[¶ 1.] Steve Krier (Krier) appeals the circuit court's grant of summary judgment to Dell Rapids Township on his claims of nuisance and inverse condemnation. We affirm.


[¶ 2.] In 1980, the Dell Rapids Township (Township) received a section of Highway 115 from the State of South Dakota. The Township named that section "Garfield Avenue." At issue in this case is the portion of Highway 115, renamed Garfield Avenue, which runs south from Dell Rapids to South Dakota Highway 115.

[¶ 3.] Over the years, Garfield Avenue fell into a state of disrepair. A portion of the road was surfaced in blacktop, but was badly cracked. At the point where the blacktop ended, the road consisted of dirt grass, and sinkholes. The Township used a gate to block this portion of the road because it believed it was hazardous.

[¶ 4.] In 1997, Krier built a house on four acres just south of Dell Rapids, adjacent to Garfield Avenue. To the north of Krier's property was the portion of Garfield Avenue that was cracked blacktop. To the south of Krier's property was the portion of Garfield Avenue that was blocked by the gate. As a result, there was little traffic on the portion of Garfield Avenue that abutted the Krier property.

[¶ 5.] In 2001, the Township decided to repair and resurface Garfield Avenue. Instead of resurfacing Garfield Avenue with asphalt, the Township decided to use gravel. The road was bladed, gravel was put down, and the road was bladed again. The entire one mile portion of Garfield Avenue is now a gravel road.

[¶ 6.] Krier was upset with the Township because he wanted Garfield Avenue to be a hard surface road. According to Krier, the gravel made the ruts and potholes worse. Krier complains of an accumulation of dust and dirt on his property.

[¶ 7.] Krier brought suit against the Township alleging (1) that Garfield Avenue has become a nuisance in violation of SDCL 21-10-1, and (2) that the Township was in violation of SDCL 31-13-49 for refusing to return Garfield Avenue to "its original paved surface." Krier requested damages for loss of enjoyment and use of his property and an order directing the Township to return Garfield Avenue "to a condition that no longer constitutes a nuisance."1

[¶ 8.] The Township counterclaimed that its actions in maintaining the road were reasonable. Following discovery, the Township moved for summary judgment, which was granted.

[¶ 9.] The circuit court relied on SDCL 21-10-2 in ruling the Township's actions did not constitute a nuisance, and that although the Township had a duty to maintain Garfield Avenue, Krier had no right to dictate the details.

[¶ 10.] Krier amended his complaint to state an inverse condemnation claim and requested damages in the amount of $30,000 for loss of value to his property. Both parties moved for summary judgment.

[¶ 11.] The circuit court granted summary judgment for the Township and denied Krier's motion. The court found no physical invasion of Krier's property occurred and that Krier failed to prove injuries peculiar to his land, not suffered by the public as a whole. The Township moved for taxation of disbursements. The circuit court granted the motion and awarded the Township $657.08 in taxable disbursements. Krier raises the following issues on appeal:

1. Whether the circuit court erred in granting summary judgment for the Township on the nuisance claim.

2. Whether the circuit court erred in granting summary judgment for the Township on the inverse condemnation claim.

3. Whether the circuit court erred in taxing disbursements in favor of the Township.

Standard of Review

[¶ 12.] Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." SDCL 15-6-56(c). All reasonable inferences derived from the facts are viewed in the light most favorable to the nonmoving party. Northstream Invs., Inc. v. 1804 Country Store Co., 2005 SD 61, ¶ 11, 697 N.W.2d 762, 765 (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D. 1990)). However, the nonmoving party must present facts showing that a genuine and material issue for trial exists. Cromwell v. Rapid City Police Dept., 2001 SD 100, ¶ 7, 632 N.W.2d 20, 23. Once we determine that the material facts are undisputed, our review is limited to whether the law was correctly applied. Schulte v. Progressive N. Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438. We will affirm the trial court if there is any legal basis to support its ruling. Id. (citing Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635).

[¶ 13.] 1. Whether the circuit court erred in granting summary judgment for the Township on the nuisance claim.

[¶ 14.] Krier argues that by failing to pave Garfield Avenue, the Township is in violation of its duty to maintain it, which is a nuisance.

[¶ 15.] Nuisance is defined in SDCL 21-10-1 as:

[U]nlawfully doing an act, or omitting to perform a duty, which act or omission either:

(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;

(2) Offends decency;

(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;

(4) In any way renders other persons insecure in life, or in the use of property.

(emphasis added).

[¶ 16.] SDCL 31-13-1 provides that "[t]he board of township supervisors shall construct, repair, and maintain all of the secondary roads within the township." The word "shall," creates an affirmative duty on the Township to repair and maintain Garfield Avenue.

[¶ 17.] In Willoughby v. Grim, we examined SDCL 31-13-1 and held that although a Township can be compelled to maintain secondary roads, courts cannot impose specific standards by which the repairs are to be made. 1998 SD 68, ¶ 1, 581 N.W.2d 165, 166.2 Because no standards for road repair and maintenance exist in our laws, "[d]etails for repairing and maintaining secondary roads [] remain within the conscientious direction of..." the Township.3 Id. ¶ 10. Krier has no legal right to dictate the manner in which the repairs are made.

[¶ 18.] The record shows that the Township has fulfilled its duty to maintain Garfield Avenue. The road has been graveled and graded on several occasions. The Township was under no obligation to make the repairs in accord with Krier's demands. The trial court did not err in granting summary judgment on the nuisance claim.

[¶ 19.] Krier argued in the alternative that the Township's affirmative act of graveling Garfield Avenue constituted a nuisance. However, SDCL 21-10-2 is clear that "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance." Because the Township was repairing and maintaining Garfield Avenue pursuant to a statutory obligation, its acts do not constitute a nuisance. See Hedel-Ostrowski v. City of Spearfish, 2004 SD 55, ¶ 13, 679 N.W.2d 491, 497 ("The legislature exempts from the definition of nuisance those things done or maintained under statutory authority").

[¶ 20.] 2. Whether the circuit court erred in granting summary judgment in favor of the Township on Krier's inverse condemnation claim.

[¶ 21.] Krier brought his inverse condemnation claim under Article VI, section 13 of our State Constitution, which provides: "Private property shall not be taken for public use, or damaged, without just compensation which will be determined according to legal procedure established by the Legislature and according to § 6 of this article." Article VI, section 13 of our Constitution differs from the Fifth Amendment of the Federal Constitution in two key respects. First, and although not relevant to the present issue, we impose "public use" requirements that are more strict than the federal baseline. Benson v. State, 2006 SD 8, ¶ 42, ___ N.W.2d ___, 2006 WL 213746 (citing Ill. Cent. R.R. Co. v. E. Sioux Falls Quarry, 33 S.D. 63, 144 N.W. 724 (1913) (adopting the "use by the public" test)). Second, our Constitution requires that the government compensate a property owner not only when a taking has occurred, but also when private property has been "damaged." The Federal Constitution does not contain a "damage" clause. Compare SD Const. art. VI, § 13 with U.S. Const. amend. 5.

[¶ 22.] Under the Federal Constitution, a plaintiff must assert one of four types of takings: (1) a per se physical taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); (2) a per se regulatory taking which deprives a landowner of all economically viable use of his property pursuant to Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S.Ct. 2886, 2895, 120 L.Ed.2d 798 (1992); (3) a regulatory taking under Penn Central Transportation Co., v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); or (4) a land-use exaction violating the standards set forth in Nollan v. California Coastal Commission, 483 U.S. 825, 831-32, 107 S.Ct. 3141, 3147-49, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 2316, 129 L.Ed.2d 304 (1994). Benson, 2006 SD 8, ¶ 41, ___ NW2d at ___, 2006 WL 213746 (citing Lingle v. Chevron USA Inc., ___ U.S. ___, 125 S.Ct. 2074, 2087, 161 L.Ed.2d 876 (2005)).

[¶ 23.] Our case law provides that the "damage" clause in our State Constitution...

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