Shevling v. Butte County Bd. of Com'rs, 20810.

Citation1999 SD 88,596 N.W.2d 728
Decision Date14 July 1999
Docket NumberNo. 20810.,20810.
PartiesHarley SHEVLING, Kenneth Shay, John Shay, Michael Shay, and Sylvia Olinger, Appellees, v. BUTTE COUNTY BOARD OF COMMISSIONERS, acting in its capacity as the Butte County Board Of Equalization, Appellant.
CourtSupreme Court of South Dakota

596 N.W.2d 728
1999 SD 88

Harley SHEVLING, Kenneth Shay, John Shay, Michael Shay, and Sylvia Olinger, Appellees,
BUTTE COUNTY BOARD OF COMMISSIONERS, acting in its capacity as the Butte County Board Of Equalization, Appellant

No. 20810.

Supreme Court of South Dakota.

Considered on Briefs June 1, 1999.

Decided July 14, 1999.

Dwight A. Gubbrud of Bennett, Main & Bailey, Belle Fourche, for appellees.

Terri Lee Williams, Butte County State's Attorney, Belle Fourche, for appellant.


[¶ 1.] Butte County appeals from a summary judgment entered by the Eighth Judicial Circuit, Butte County. The trial court found res judicata or collateral estoppel prevented utilization of a method of

596 N.W.2d 729
assessment that separately classified agricultural land as irrigable and non-irrigable. We reverse and remand for trial


[¶ 2.] Henry Shevling, Kenneth Shay, John Shay, Michael Shay and Sylvia Olinger (collectively Shevling) own approximately 320 acres of agricultural land in Butte County. The Belle Fourche River unevenly dissects this land. In 1994 and 1995, Shevling's land had an assessed value of $39,561.00.

[¶ 3.] In 1996, Butte County assessed the land at $148,564.00. This increase was based upon a finding the land was irrigable. Shevling appealed to the Board of Equalization who reduced the assessment to $79,633.00. Shevling appealed the reassessment to the Office of Hearing Examiners, which reversed the County and remanded for reassessment. The reassessed value of the land was reduced to $36,291.00.

[¶ 4.] In 1997, the Director of Equalization categorized Shevling's land as irrigable and valued the property at $163,420.00. Shevling appealed to the Butte County Board of Equalization. His appeal was rejected. On August 11, 1997, Shevling appealed to the South Dakota Office of Hearing Examiners. The Administrative Law Judge (ALJ) found that Shevling had water rights to approximately 200 acres of the property, however, the water rights were junior rights. Furthermore, Shevling could not pump water from the river during the months of July, August and September and developing the land for irrigation was cost prohibitive. The ALJ concluded Butte County had erred by establishing separate classifications for determining the value of property with irrigation potential. The ALJ ordered Butte County to re-evaluate the property as dry land agricultural property and assess it accordingly.

[¶ 5.] On September 9, 1997, Butte County appealed the ALJ's order to the circuit court. The County claimed Shevling's land was properly assessed as irrigable due to its location, soil, terrain, topography and water rights.

[¶ 6.] In determining the 1997 assessment, Butte County compared the types of soil, as rated by the State according to productivity, location of the property and irrigability. Values for dry land soils and irrigable soils were determined by analyzing sales of comparable property. It was the policy of Butte County that if water rights were available, the property was irrigable if it had certain types of soil.

[¶ 7.] The circuit court concluded the Director of Equalization improperly placed great weight on the fact Shevling had a water right and irrigable soil. It specifically identified the errors committed by the Director as: (1) failure to consider the cost of land preparation for irrigation which in this case could be cost prohibitive, and (2) failure to consider the existing water right was a junior right subject to demands of senior rights and allowing no water whatsoever in the prime growing months of July, August and September. The court further concluded this method of classification resulted in two separate classes of property for agricultural land and was therefore unconstitutional. The court remanded the case for reassessment. The final 1997-assessment amount for Shevling's land is not in the record. Butte County did not appeal the 1997 judgment to this Court.

[¶ 8.] The next year this issue was raised once again. On April 13, 1998, Shevling appealed the 1998 assessment of his land to the Board of Equalization. The 1998 assessed value was once again based on a method that considered the irrigability of the land.1 The...

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