State v. Sayer

• Decision Date: 24 May 1920
• Docket Number: 4680
• Citation: 177 N.W. 807,43 S.D. 45
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent v. SAYER et al, Defendants and appellants.
• Court: South Dakota Supreme Court

43 S.D. 45

177 N.W. 807

STATE OF SOUTH DAKOTA, Plaintiff and respondent

v.

SAYER et al, Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Hamlin County, SD Hon. William N. Skinner, Judge #4680--Affirmed Hanten & Hanten, Arthur R. Hendrickson Attorneys for Appellant. Byron S. Payne, Attorney General V. R. Sickel, Assistant Attorney General Attorneys for Respondent. Opinion filed May 24, 1920

SMITH, J.

Proceeding for condemnation and appropriation of a strip of land 100 feet wide adjoining a public highway "to the extent that the same is deemed necessary for the proper discharge of the duties and functions devolving upon the state game and fish commission."

The proceeding is pursuant to the provisions of Chapter 250, Session Laws of 1917, which was in force when said proceedings were begun, and is conceded to be controlling upon this appeal. Section 1 of the act provides:

"That the state game and fish commission ... shall have, and said commission is hereby granted, power and authority to acquire and condemn private property within the state, ... for public uses and purposes, whenever, and to the extent the same shall be deemed necessary for the proper discharge of any of the ... duties or functions now devolving upon said commission."

Section 2:

"When said game and fish commission shall deem it necessary to damage or condemn any private property for any of the purposes mentioned in section one of this act, the said commission shall by proper resolution declare such damage or condemnation necessary to be made, stating the purpose thereof and the extent of such appropriation, and shall communicate such resolution to the Attorney General, and thereupon the proceedings for such condemnation and appropriation shall be had as provided in chapter 40 of the Revised Code of Civil Procedure and acts amendatory thereto, in the name of the State of South Dakota as plaintiff."

By section 3 lands so acquired are to be taken and held in the name of the state of South Dakota.

Section 4:

"Payment for lands acquired under the provisions of this act, including the costs and expenses of condemnation proceedings., shall be paid out of the game and fish fund of this state, and such part of said fund as may be necessary are [is] hereby appropriated for the purposes hereinbefore stated, and the state auditor shall issue warrants upon the state treasurer against said funds upon vouchers duly approved by the state game and fish commission."

The petition recites that the proceeding is based upon chapter 250, Laws of 1917, and chapter 40 of the Code of Civil Procedure, which provides the mode of appropriating and condemning private property for public uses or purposes; that the game and fish commission prior to the beginning of said proceeding by proper resolution declared the damage and condemnation of the property necessary to be made, stating therein the purpose and extent of such appropriation, and communicated such resolution to the Attorney General. The resolution referred to is attached to the petition and made a part thereof. The petition further alleges that the use of said land for the construction of canals, ditches, and conduits, dams and headgates thereon in order to maintain the water in Lake Poinsett and Dry Lake at suitable depths for preservation and propagation of fish and game therein is for a public use and purpose, and necessary for the proper discharge of the duties and functions devolving upon said commission; that the defendants are the owners and only persons interested in the described real estate, and constitute all the persons who have or claim any right or title or interest in or lien or incumbrance upon said premises; that the petitioner is unable to agree with said owners upon the value of said lands, or to agree upon a just and equitable compensation for damaging, appropriating and condemning said property; that the petitioner has surveyed and located its route for canals, drains, and ditches over the lands described; that the strips so surveyed and necessary to be acquired are accurately described in said petition; that the Legislature has appropriated and the state game and fish commission has available funds sufficient to pay the amount to be awarded, and demands a jury to assess just compensation under chapter 40 of the Code of Civil Procedure, relating to condemnation proceedings. The resolution referred to recites that Lake Poinsett and Dry Lake are public bodies of water contiguous to each other, with a waterway between; that the source of water supply for both consists of surface waters from rainfall, and of flood waters from the. Big Sioux river, which are drained into said lake through a natural inlet; that said inlet has become partly filled, so that the flow of flood water from said river into Lake Poinsett has been greatly retard, and by said diminution of water supply said lakes at certain seasons of the year become unsuitable for the preservation and propagation of game and fish, and that it appears to said commission that the waters of said lake may be maintained at a suitable depth for such purpose's, never in excess of ordinary high-water mark, by the conveying a portion of the flood waters of the Big Sioux river to said lakes by means of a properly constructed ditch or conduit; that said ditch or conduit may be constructed adjacent and parallel to the section line of the south side of the S. E. quarter of section 25, etc., and the south side of section 30, etc. (the land sought to be condemned), to a point where said ditch or conduit will intercept a well-defined water course emptying into said Dry Lake, etc.:

"Therefore be it resolved and declared by the state game and fish commission that it is necessary to construct a ditch or conduit upon the land hereinafter described, for the purpose of conveying flood waters (as above set forth), and that it is necessary to take, damage and appropriate said land ... for the purpose of preserving and propagating game and fish upon and within said lake, and that said lands shall be condemned for such public use."

Then follows a particular description of the lands as described in the petition.

To this petition ...