Asper v. Nelson, 2017 SD 29

Petitioners Timothy Asper and Galazin Family, LLC sought a writ of mandamus directing Raritan Township (Day County) to repair and maintain two secondary, section-line roads (132nd Street and 431st Avenue) giving them access to their properties after flooding in 2011 made portions impassable.
The circuit court issued an alternative writ and ordered the Township to either repair the roads or show cause; the court later directed the Township to obtain written repair estimates before further action.
Competing cost estimates were submitted: Hofland Engineering (presented by Asper) estimated $473,000; two contractors (presented by the Township) estimated $1,178,560 and $1,380,500. Asper and Galazin Family offered $25,000 toward the work.
The Township’s annual road-maintenance budget was about $25,000 (real-estate tax receipts ≈ $13,000); it had limited unrestricted cash and FEMA funds allocated to other roads. The Board had not voted to issue bonds or impose a special assessment for these repairs.
The circuit court held the Township has a mandatory duty to maintain the roads but concluded the Township had proved it was unable to procure the funds to perform that duty and denied the writ as mandamus would be unavailing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a writ of mandamus must be issued to compel the Township to repair statutorily-maintained roads	Asper: Mandatory statutory duty means mandamus is the only adequate remedy and must be granted until Township exhausts funding options	Township: Court has discretion; mandamus may be denied if it would be unavailing or enforcement is impractical	Denied — court has discretion and may refuse mandamus when performance is impossible or funding procurement is unavailing
Whether the Township must exhaust specific financing methods (e.g., bond issuance, special assessment) before mandamus can be denied	Asper: Township must attempt all funding avenues (including bonds) before court may refuse mandamus	Township: Financing choices are within its discretion; it need not be ordered to pursue particular fiscal measures	Held for Township — court will not compel the Township to pursue particular funding methods and need not find absolute impossibility, only that mandamus would be unavailing
Whether equitable considerations or enforcement difficulties can justify denying mandamus despite a clear statutory duty	Asper: Equitable defenses are irrelevant; statutory right controls	Township: Equitable considerations and enforcement practicality matter; inability to fund makes mandamus ineffective	Court agreed with Township — equitable considerations and feasibility may bar mandamus despite a clear legal right

Willoughby v. Grim, 581 N.W.2d 165 (S.D. 1998) (mandamus is discretionary; may be denied when unavailing)
Anderson v. City of Sioux Falls, 384 N.W.2d 666 (S.D. 1986) (granting mandamus is not an absolute right and rests in court's sound discretion)
City of Sioux Falls v. Sioux Falls Traction Sys., 221 N.W. 84 (S.D. 1928) (equitable considerations can justify refusal of mandamus)
State v. Hahn, 9 N.W.2d 502 (S.D. 1943) (mandamus will not be granted when it would be unavailing)
United States v. Helvering, 301 U.S. 540 (1937) (the availability of writs may turn on equitable considerations)