Sioux Falls v. MISSOURI BASIN MUN. POWER

• Decision Date: 04 February 2004
• Docket Number: No. 22419.,22419.
• Parties: CITY OF SIOUX FALLS, a municipality chartered under the Constitution of the State of South Dakota, Plaintiff and Appellee, v. MISSOURI BASIN MUNICIPAL POWER AGENCY d/b/a Missouri River Energy Services, Defendant and Appellant.
• Court: South Dakota Supreme Court

675 N.W.2d 739

2004 SD 14

CITY OF SIOUX FALLS, a municipality chartered under the Constitution of the State of South Dakota, Plaintiff and Appellee, v. MISSOURI BASIN MUNICIPAL POWER AGENCY d/b/a Missouri River Energy Services, Defendant and Appellant.

No. 22419.

Supreme Court of South Dakota.

Argued October 7, 2003.

Decided February 4, 2004.

R. Shawn Tornow, Sioux Falls City Attorney's Office, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.

Mark V. Meierhenry and Clint Sargent of Danforth, Meierhenry & Meierhenry, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

RUSCH, Circuit Judge.

[¶ 1.] This is an appeal from a judgment entered following a jury verdict in a condemnation action. Missouri Basin Municipal Power Agency (Missouri Basin)¹ argues that the trial court lacked subject matter jurisdiction because the description of the property to be acquired by the City of Sioux Falls (City), as set out in its petition, was insufficient. In addition, Missouri Basin claims that it was denied a fair trial. We affirm.

[¶ 2.] On December 6, 2000, City began a condemnation action to acquire a strip of land for the construction of an extension of North Louise Avenue in conjunction with the State of South Dakota's I-29/Russell Street interchange project. The condemnation action was a non-quick-take eminent domain proceeding.

One should recognize that the term "condemnation" generically describes a variety of procedures by which a sovereign exercises its power of eminent domain or takes private property. Two such procedures established by the legislature are: 1) a municipality's power to take by non-quick-take eminent domain proceedings in which the necessity to take and the value of the property taken are determined, SDCL ch 21-35; and 2) quick-take proceeding as applicable to municipalities described both in SDCL 21-35-9 and SDCL 31-19-23 et seq. These quick-take proceedings are not mutually exclusive. SDCL 31-19-40.

In non-quick-take condemnation cases, the municipality files a petition pursuant to the provisions of SDCL 21-35-2. No right to possession of the property is obtained by the condemning authority until it pays the full amount of condemnation judgment and costs. A City may dismiss the action after a just compensation verdict but before judgment is entered. City of Aberdeen v. Lutgen, 273 N.W.2d 183, 185 (S.D.1979).

City of Sioux Falls v. Johnson, 2001 SD 108, ¶¶ 10, 11, 632 N.W.2d 849, 852-53 (footnote omitted). As a result of utilizing this non-quick-take procedure, City did not obtain immediate possession of the property and could not begin construction of the North Louise Avenue project until after the trial at issue here. Under the non-quick-take procedure, City reserved the right to change its mind about building this street project if the land was too expensive. However, if City had changed its mind and dismissed this condemnation proceeding after the trial, the property owner would have been entitled to their costs including reasonable attorney's fees. City of Aberdeen v. Lutgen, supra.

[¶ 3.] By these proceedings City sought to acquire approximately 2.9 acres which lay diagonally across the middle of a 14 acre tract owned by Missouri Basin. Most of the property that City sought to acquire was vacant land. Neither Missouri Basin's office building nor its employee parking lot was affected by the taking, but it did include a portion of Missouri Basin's visitor parking lot.

[¶ 4.] City's condemnation petition identified the land to be acquired as:

Lot H1 of Tracts 1 and 2 of Missouri Basin Municipal Power Agency Addition to the City of Sioux Falls, Minnehaha County, South Dakota (containing approximately 126,418 square feet or 2.902 acres), as shown on Exhibit A of Resolution 101-00.

In addition, a map or diagram accompanied the petition. Neither the petition nor the map showed what access would be allowed to the remaining property after the taking but it did show that the new North Louise Avenue, which would run through Missouri Basin's property, would not be a controlled access road. As a non-controlled access road, City will allow whatever access a landowner wants, provided that it complies with City's engineering design standards. The map also did not show such things as elevation or drainage plans.

[¶ 5.] Prior to the condemnation, access to the visitor parking lot was from a service road running along Russell Street. Included in the condemnation taking area was the entrance to that parking lot. Twenty-one months before the trial, City provided Missouri Basin with six different alternative proposals for reconfiguring the visitor parking lot. Each of those proposals utilized the existing parking lot and entrance into the building and each showed access to the parking lot from the Russell Street service road in approximately the same location where it was eventually constructed.²

[¶ 6.] Both City and Missouri Basin employed appraisers to assist in valuing the taken property. Missouri Basin hired Deane Davenport, and City employed Steven Shaykett. The two appraisers arrived at similar values for the property taken with Davenport finding a loss in value of $392,000 and Shaykett finding a loss in value of $306,000. However, Davenport also claimed that there would be severance damages of $311,280 in order to remodel Missouri Basin's building to construct a new front entrance to access the new visitor parking lot. As a result he claimed that total just compensation should be $703,280. Shaykett saw no need to move the parking lot and no need for a new front entrance.

[¶ 7.] The condemnation action was tried to a jury on January 30 through February 1, 2002. Although Missouri Basin's appraiser testified that just compensation for the taking was $703,280, Merlin Sawyer, Missouri Basin's Chief Financial Officer, testified that just compensation for the property taken was $1,417,105. One of the witnesses that City called was Mark Wiederrich, an engineer from HDR Engineering. Wiederrich had prepared the plans for the Louise Avenue/Russell Street interchange and had also prepared the six different alternative proposals for reconfiguring the Missouri Basin visitor parking lot. These plans kept the visitor parking lot in approximately the same location where it was previously located and did not necessitate a new front entrance or any remodeling. Copies of these plans had been furnished to Missouri Basin in April 2000.

[¶ 8.] At the close of the trial, Missouri Basin moved to dismiss the condemnation action because the petition did not adequately describe the property to be taken, and because the evidence presented at trial by City did not conform to the petition's description of the taking. The motion was denied and the case was submitted to the jury which returned a verdict for Missouri Basin in the sum of $316,500.³ Later, Missouri Basin moved for a new trial. The trial court denied this motion.

STANDARD OF REVIEW

[¶ 9.] Jurisdictional challenges are reviewed de novo. State ex rel. LeCompte v. Keckler, 2001 SD 68, ¶ 6, 628 N.W.2d 749, 752 (citing Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993)) (citing State v. Spotted Horse, 462 N.W.2d 463, 465 (S.D.1990), cert denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991)). Since questions of subject matter jurisdiction have no time limitation, they may be raised for the first time on appeal. Barnes v. Matzner, 2003 SD 42, ¶ 10, 661 N.W.2d 372, 375; Wuest v. Winner School Dist. 59-2, 2000 SD 42, ¶ 15, 607 N.W.2d 912, 916.

SUBJECT MATTER JURISDICTION.

[¶ 10.] "Subject matter jurisdiction is the power of a court to act such that without subject matter jurisdiction any resulting judgment or order is void." Barnes, 2003 SD 42 at ¶ 10, 661 N.W.2d at 375. "It is `conferred solely by constitutional or statutory provisions ... [and] can neither be conferred on a court, nor denied to a court by the acts of the parties or the procedures they employ.'" Id. (quoting Freeman v. Sadlier, 1998 SD 114, ¶ 10, 586 N.W.2d 171, 173).

[¶ 11.] Missouri Basin contends that the trial court in this case lacked subject matter jurisdiction because City failed to adequately describe the property to be taken in its condemnation petition. South Dakota law requires that in order to maintain an action "taking or damaging private property for public use," the condemning authority must file a petition in "the circuit court for the county in which the property to be taken or damaged is situated." SDCL 21-35-1. The petition "shall contain a description of the property to be taken or damaged. SDCL 21-35-2." If the petition does not contain an adequate description of the property to be taken, the court is without jurisdiction to entertain the condemnation action. Consumers Public Power Dist. v. Eldred, 146 Neb. 926, 22 N.W.2d 188, 196 (Neb. 1946). The statute does not clarify how specific or detailed the property description must be.

[¶ 12.] This is an issue of first impression in South Dakota, but other states have considered similar cases. If a petition describes the property to be taken so inaccurately that it is "apt to mislead the appraisers in the assessment of damages," the condemnation proceedings would be void. Dailey v. Missouri Pac. R. Co., 103 Neb. 219, 170 N.W. 888, 889 (Neb. 1919). The description "must be such that a surveyor could locate the parcel described without the aid of extrinsic evidence." Consumers Public Power Dist. v. Eldred, 22 N.W.2d at 196. However, the Nebraska Supreme Court also said "[t]his does not mean the exactness required by deeds of conveyance but substantial accuracy and a certainty by reason of which the identical property can be definitely located," and "[i]t is no objection that the description is incomplete or unintelligible without consultation with a map or plan, if the map is referred to in the description and is filed with it, and taken together the map and the description make clear what is...