Meyerink v. Northwestern Public Service Co., 15127

• Decision Date: 09 July 1986
• Docket Number: No. 15127,15127
• Citation: 391 N.W.2d 180
• Parties: Gerard MEYERINK, Don Vanderpol, Herb Hoffman, Dean Meyerink, Janice Porter, Richard Porter, Loren Pederson, Shirley Pederson, Gale Pederson, Wayne Blair, Rhoda L. Blair, Maynard R. Bridges, Kelly Bridges, Mary Cleo Schulte, Thomas Schulte, Lawrence Schulte, Ann Vanderpol, Frank Faber, Sherman Dyk, Ruth E. Vanden Bos, Delmer L. Vanden Bos, Harm Westernuis, Grace E. Fijala, Wm. Fijala, Harriet Meyerink, Vernon Van Duesseldorf, Bertha Kuipers, Harm A. Kuipers, Bob Cwach and Jim Hoffman, Plaintiffs and Appellants, v. NORTHWESTERN PUBLIC SERVICE COMPANY, and the State of South Dakota, By and Through its Division of Railroads, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 180

391 N.W.2d 180

Gerard MEYERINK, Don Vanderpol, Herb Hoffman, Dean Meyerink Janice Porter, Richard Porter, Loren Pederson, Shirley Pederson, Gale Pederson, Wayne Blair, Rhoda L. Blair Maynard R. Bridges, Kelly Bridges, Mary Cleo Schulte, Thomas Schulte, Lawrence Schulte, Ann Vanderpol, Frank Faber Sherman Dyk, Ruth E. Vanden Bos, Delmer L. Vanden Bos, Harm Westernuis, Grace E. Fijala, Wm. Fijala, Harriet Meyerink Vernon Van Duesseldorf, Bertha Kuipers, Harm A. Kuipers, Bob Cwach and Jim Hoffman, Plaintiffs and Appellants, v. NORTHWESTERN PUBLIC SERVICE COMPANY, and the State of South Dakota, By and Through its Division of Railroads, Defendants and Appellees.

No. 15127.

Supreme Court of South Dakota.

Argued April 21, 1986.

Decided July 9, 1986.

Rick Johnson, of Johnson, Eklund & Davis, Gregory, for plaintiffs and appellants.

Everett E. Hoyt, Alan D. Dietrich, Huron, for appellee, Northwestern Public Service Co.

James I. Hare, Asst. Atty. Gen., Pierre, Mark V. Meierhenry, Atty. Gen., on brief, Pierre, for appellee, State of S.D.

FOSHEIM, Chief Justice.

Plaintiff Landowners (Landowners) appeal from a summary judgment in favor of Northwestern Public Service Company (NWPS) and the State of South Dakota. We affirm.

Around 1900 the Chicago, Milwaukee, and St. Paul Railway Company (Railroad) acquired a 200 foot strip of land in Charles Mix County between Geddes and Platte. Deeds were conveyed from the landowners to Railroad. A standard "right-of-way" form, supplied by Railroad, was used.

In 1980, Railroad went bankrupt and the South Dakota Railroad Authority (Rail Authority or State) acquired the Railroad's interest in the landstrip. In 1984, Northwestern Public Service Company applied to the Rail Authority for permission to place a power line on the landstrip. A "Utility Crossing Agreement" was executed in June, 1984. Present adjoining landowners were contacted by NWPS about the pending construction and need for additional access. Landowners were told they could avoid construction over their property at their own expense. Consequently, in June, 1985, Landowners initiated this action to set aside the agreement, enjoin construction, and recover any damages. Landowners specifically challenged State's authority to give NWPS access to the landstrip.

The circuit court denied Landowners' request for a temporary injunction. Summary judgment for NWPS and State was entered in August, 1985, on the basis of the transcript and evidence presented at the earlier injunction hearing. The trial court concluded that: (1) it had jurisdiction, (2) Landowners failed to establish liability, (3) State holds the Landstrip in fee, (4) State properly granted a use of the landstrip to NWPS, and (5) Landowners will not sustain compensable damages as a result of the location of the power lines on the landstrip.

When reviewing a summary judgment, we are governed by Wilson v. Great Northern Railway Co., 83 S.D. 207, 157 N.W.2d 19 (1968):

(1) The evidence must be viewed most favorable to the non-moving party; (2) The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (3) Though the purpose of the rule is to secure a just, speedy and inexpensive determination of the action, it was never intended to be used as a substitute for a court trial or for a trial by jury where any genuine issue of material fact exists. (4) A surmise that a party will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it be obvious it would be futile to try them. (5) Summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant. (6) Where, however, no genuine issue of fact exists it is looked upon with favor and is particularly adaptable to expose sham claims and defenses.

Id. at 212, 157 N.W.2d at 21 (footnotes omitted); Bayer v. Employers Reinsurance Corp., 383 N.W.2d 858, 861 (S.D.1986).

A review of the record and consideration of inferences most favorable to the nonmoving party, leads us to conclude that the trial court properly awarded summary judgment against Landowners. We ultimately, however, base our decision on jurisdictional grounds rather than those espoused by the trial court. Cook v. Rezek, 296 N.W.2d 731, 733 (S.D.1980); see also Barger for Wares v. Cox, 372 N.W.2d 161, 168 (S.D.1985).

I.

Landowners initially argue that State holds a mere easement for railroad purposes only and, therefore, cannot increase the burden on that easement by permitting construction of public utility power lines. Landowners further argue that even if State has sufficient interest in the right-of-way to increase the burden upon it, State did not follow required procedure in permitting NWPS' use and that power line construction constitutes a compensable taking of their property.

By statute, a fee title is presumed to be passed unless a lesser estate was intended. SDCL Sec. 43-25-15. ¹ In Northwest Realty Co. v. Jacobs, 273 N.W.2d 141 (S.D.1978), we held that when the term "right-of-way" is used in a deed, it usually indicates only an easement is being conveyed. Id. at 144. However, if the instrument considered as a whole indicates a fee title was intended by the parties, then the presumption of a fee title controls. Id. Further, only when construction of the instrument as a whole leaves the intention of the parties in doubt should consideration be given to the situation and circumstances of the parties at the time of the execution of the deed. Id. at 145.

Upon review of the deed between the railroad and Landowners' predecessors in interest, we note that it was captioned a "right-of-way deed." However, when the deed is considered as a whole, it is clear that transfer of a fee title, ² not a lesser estate, was intended. The deed states that the landowners "will forever Warrant and Defend the title to the premises hereby conveyed...." That is clearly the language of a conveyance in fee ³ or, more specifically, a warranty deed. See SDCL Sec. 43-25-5. Easements are not so phrased. No ambiguity exists and we need not further examine the intention of the parties, consideration given, or circumstances at the time of execution. Northwest Realty Co., 273 N.W.2d at 145.

II.

Having concluded that a fee title was conveyed to the railroad and is now held by State, we must determine whether placement of the power lines on the landstrip by NWPS was properly authorized by State. Landowners strongly argue that SDCL Sec. 5-2-11 requires the Governor's approval for any conveyance of title of, or grant of an easement over, land in which State holds title.

SDCL chapter 5-2 controls conveyances of land easements on state owned lands. SDCL Sec. 5-2-10 authorizes state agencies and departments to grant perpetual easements on lands under their control for power lines. The procedure for exercising this authority is found in SDCL Sec. 5-2-11. Upon application for easements of any kind on state lands, a resolution of the agency requesting the conveyance is to be forwarded to the Commissioner of School and Public Lands. Id. The Commissioner draws the easement or conveyance of title and it is submitted to the Governor for his signature. Id.

Portions of SDCL chapter 1-44 specifically govern the South Dakota Division of Railroads. Under SDCL Sec. 1-44-20, the Division is empowered, "[n]otwithstanding any other provision of law," with the Governor and Railroad Board's approval to enter into agreements for, inter alia, the acquisition and disposition of rights-of-way and land. In contrast, SDCL Sec. 1-44-28 empowers the Division to manage all real and personal property acquired for railroad purposes and secure available income therefrom. Further, SDCL Sec. 1-44-28 empowers the Division's director to "negotiate, enter into, execute and issue leases, licenses, easements or other agreements as may be necessary to provide for the use of any property or facility not used directly in rail operations." This statutory authorization is specifically exempted from classification as administrative rules. SDCL Sec. 1-26-1(7). However, the Railroad Board may implement the provisions of SDCL Sec. 1-44-28 by resolution. This action may lead to a "contested case" ⁴ under the South Dakota Administrative Procedure Act. SDCL Secs. 1-26-1(2) and 1-26-16 through -37.

We must look to rules of construction for guidelines to determine ⁵ which of the above code sections, if either, controls granting of a use to NWPS on the landstrip. Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enactments relating to the same subject. Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985). Words used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature's apparent intention justifies departure. State v. Big Head, 363 N.W.2d 556, 559 (S.D.1985). Where conflicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. Karlen v. Janklow, 339 N.W.2d 322, 323 (S.D.1983); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 295 (S.D.1982). However, terms of a statute relating to a particular subject will prevail over general terms of another statute. Id.; Clem v. City of Yankton, 83 S.D. 386, 402, 160 N.W.2d 125, 134 (1968). Finally, we must assume that the legislature, in enacting a provision, had in mind previously enacted statues relating to the same subject. State v. Feiok, 364 N.W.2d 536, 539 (S.D.1985).

Here, we are able to give effect to both code chapters which are similar in some...