Lewis & Clark Rural Water System v. Seeba

• Court: South Dakota Supreme Court
• Writing for the Court: Steven L. Zinter
• Citation: Lewis & Clark Rural Water System v. Seeba, 709 N.W.2d 824, 2006 SD 7 (S.D. 2006)
• Decision Date: 20 January 2006
• Docket Number: No. 23737.,No. 23738.,23737.,23738.
• Parties: LEWIS & CLARK RURAL WATER SYSTEM, INC., a South Dakota Non-Profit Corporation, Plaintiff and Appellant, v. Loren SEEBA; Kenneth F. Seeba and Loretta M. Seeba; Irving Gedstad and Henrietta Gedstad; and the United States of America, Defendants and Appellees. Lewis & Clark Rural Water System, Inc., a South Dakota Non-Profit Corporation, Plaintiff and Appellant, v. Gary D. Buse and Dee Anna Buse, Home Federal Bank; Lincoln County, South Dakota; South Lincoln County Rural Water System, Inc.; and Evelyn Buse and Wilmer Buse, Defendants and Appellees.

Page 824

709 N.W.2d 824

2006 SD 7

LEWIS & CLARK RURAL WATER SYSTEM, INC., a South Dakota Non-Profit Corporation, Plaintiff and Appellant, v. Loren SEEBA; Kenneth F. Seeba and Loretta M. Seeba; Irving Gedstad and Henrietta Gedstad; and the United States of America, Defendants and Appellees.

Lewis & Clark Rural Water System, Inc., a South Dakota Non-Profit Corporation, Plaintiff and Appellant, v. Gary D. Buse and Dee Anna Buse, Home Federal Bank; Lincoln County, South Dakota; South Lincoln County Rural Water System, Inc.; and Evelyn Buse and Wilmer Buse, Defendants and Appellees.

No. 23737.

No. 23738.

Supreme Court of South Dakota.

Argued October 4, 2005.

Decided January 20, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark F. Marshall, Monte R. Walz of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellants.

Mark V. Meierhenry, Patrick J. Glover of Danforth & Meierhenry, LLP, Sioux Falls, South Dakota, Attorneys for appellees.

[¶ 1.] Justice STEVEN L. ZINTERdelivers the opinion of the Court on:

Issue 1, which holds that the 250 foot setback restriction in SDCL 46-8-1.2 applies to routes acquired under the provisions of SDCL ch 46-8, including routes for water pipelines;

Issue 2(a), which holds that the width of the route is measured from the outside dimension of the pipeline rather than the exterior boundary of the easement; Issue 2(b), which holds that "other buildings on the premises" include grain bins and sheds located on the same farmstead as the dwelling house;

Issue 2(c), which holds that the route proposed by Lewis & Clark may not cross below, on, or through any existing noncommercial orchard or garden;

Issue 2(d)(i), which holds that a landowner, who has no dwelling, building, orchard or garden within the prohibited proximity of the pipeline, lacks standing to assert a condition of SDCL 46-8-1.2;

Issue 2(e), which holds that a landowner, who has actual knowledge of the intended pipeline route, cannot construct a dwelling house, building, or noncommercial orchard or garden to block or alter construction of the intended pipeline; and

Issue 2(f), which holds that SDCL 46-8-1.1 only governs general pipeline parameters not addressed in SDCL 46-8-1.2, and that the circuit court may not modify the specific conditions in SDCL 46-8-1.2 through SDCL 46-8-1.1.

[¶ 2.] Justice RICHARD W. SABERS delivers the opinion of the Court on:

Issue 2(d)(ii), which holds that SDCL 46-8-1.2 does not give a landowner the right to object to a pipeline located on someone else's property.

[¶ 3.] ZINTER, Justice, writing the opinion on Issues 1, 2(a), (b), (c), (d)(i), (e) and (f).

[¶ 4.] Lewis & Clark Rural Water System, Inc. appeals from the circuit court's interpretation of a statute that regulates the use of eminent domain. Lewis & Clark contends that the statute does not apply to its underground water pipeline project. If the statute does apply, Lewis & Clark challenges the circuit court's interpretation of the statute's restrictions as the pipeline passes dwellings, buildings, and noncommercial orchards and gardens. We affirm the circuit court in part, reverse in part, and remand.

Facts and Procedural History

[¶ 5.] Lewis & Clark was created by an act of Congress to plan, develop, construct, and operate a water pipeline system. The system will pump water from aquifers located near the Missouri River and transport the water to municipalities and rural water systems. It will provide potable water for approximately 200,000 people in eastern South Dakota, northwest Iowa, and southwest Minnesota. The water will be distributed through approximately 337 miles of pipeline across an area of 5,000 square miles, crossing approximately 700-850 parcels of property. Approximately 189 miles of pipeline and 350-475 of those parcels are located in South Dakota.

[¶ 6.] In order to construct and maintain the pipeline, Lewis & Clark sought seventy foot permanent easements and eighty foot temporary construction easements from landowners along the proposed pipeline route.¹ Because some easements could not be negotiated, Lewis & Clark filed condemnation actions invoking the right of eminent domain for waterworks under SDCL 46-8-1. That statute provides:

Any person may exercise the right of eminent domain in the manner provided by law to acquire as a public use any property or other rights necessary for application of water to beneficial uses or to enlarge an existing structure for conveyance of water for use in common with an existing or former owner. Application of water to beneficial use is a public use, in the public interest and of benefit to the public.

Landowners, however, argued that Lewis & Clark was not entitled to use eminent domain because the pipeline route did not meet a 250 foot setback restriction in SDCL 46-8-1.2. That statute provides:

No routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house or other buildings on the premises or across any noncommercial orchard or garden without written consent of the owner. This section does not apply to works located in public rights-of-way.

[¶ 7.] These appeals involve three separate properties. The first property, parcel 170, is owned by Loren Seeba, et al. (Seeba). The pipeline route proposes to run on the Seeba property for a certain distance, cross a public road to property not owned by Seeba, and then re-cross the road to again run on the Seeba property. Seeba objected to the proposed location of the pipeline at the point where it would be across the road on another's property but approximately 140 feet from Seeba's dwelling. Seeba contended that eminent domain could not be utilized because the pipeline route was within the 250 foot restriction in SDCL 46-8-1.2. Lewis & Clark responded that Seeba did not have standing to object because Seeba did not own the real property through which the pipeline would run when it was within 250 feet of his dwelling.

[¶ 8.] The second property, parcel 180, is owned by Gary Buse, et al. (Buse). The pipeline proposes to run across the Buse property and will come within 250 feet of two types of buildings that are on his property. The first type is a group of three grain bins. The pipeline is proposed to be located approximately twenty-five feet from the grain bins, and a portion of one of the bins is within the permanent easement. The second type of building is a machine shed that was constructed after the scope of the project and intended route became public. The pipeline is proposed to be located approximately seventy feet from this shed and a portion of it is within the permanent easement.

[¶ 9.] Buse asserted that the pipeline route violated the 250 foot setback restriction with respect to both types of buildings. Lewis & Clark responded that these buildings did not violate the setback restriction because they were not "other buildings on the premises" within the meaning of SDCL 46-8-1.2. Additionally, Lewis & Clark contended that the setback restriction was inapplicable to the shed because it was constructed after the plans for the pipeline became public.

[¶ 10.] The third property, parcel 179, is owned by Wilmer Buse, et al. (W.Buse). The pipeline was not proposed to be located within 250 feet of any dwelling house, other building, or noncommercial orchard or garden on his property. However, W. Buse objected to the route's location at a point where it would be within 250 feet of buildings on adjacent property, parcel 178, owned by Kevin and Cindy Enterprises. W. Buse objected even though the Enterprises consented to the pipeline route and gave an easement on their property. Lewis & Clark contended that W. Buse had no standing to object because the route was neither on property owned by W. Buse nor within 250 feet of any building owned by W. Buse.

[¶ 11.] All parties moved for summary judgment, and the circuit court generally ruled in favor of the landowners. Lewis & Clark appeals raising the following issues:

1. Do the SDCL 46-8-1.2 restrictions, including the 250 foot setback, apply to the Lewis & Clark pipeline project?

2. If the SDCL 46-8-1.2 restrictions apply to the project:

(a) Does the width of the "route" include both the width of the pipeline and the seventy foot permanent easement?

(b) Does the 250 foot restriction apply to "other buildings on the premises" that are not dwellings, but are used by the owner or occupant in connection with the dwelling?

(c) Does the statute prohibit the route from physically crossing a noncommercial orchard or garden?

(d) Does a landowner have standing to object to the condemnation when:

(i) the landowner (W.Buse) has no dwelling, building, orchard or garden within 250 feet of the route?

(ii) the landowner (Seeba) has a "dwelling house or other building on the premises" located within 250 feet of the pipeline route, but the pipeline is located on the land of a neighbor?

(e) Does a landowner, who has actual knowledge of the intended route, have the right to subsequently construct a dwelling house, building, or noncommercial orchard or garden and invoke the statutory restrictions?

(f) Does the circuit court have authority (under SDCL 46-8-1.1) to modify the 250 foot setback restriction in SDCL 46-8-1.2 if the court finds that the modification will do the "least possible injury to private property, consistent with sound engineering principles and with economic feasibility"?

Standard of Review

[¶ 12.] These appeals involve the interpretation of eminent domain statutes. "Statutory interpretation and application are questions of law." Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citing Steinberg v. State Dep't of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). This Court reviews questions of law under the de novo standard with no deference afforded the circuit court's decision. Id. (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d...