State Ex Rel. Department of Transportation v. JB Enterprises, Inc.
2016 SD 89
| S.D. | 2016Background
- The State initiated a quick-take condemnation under SDCL chapter 31-19 for reconstruction of the I-90 / Cliff Avenue interchange, filing a declaration of taking that described acquisition of "control of access" affecting JBE’s Lots 19 and part of 18.
- JBE (owner/operator of the Perkins restaurant on Lot 19) waived its right to contest necessity, so title to the access interest described in the declaration vested in the State and JBE became entitled to just compensation.
- The State later revised project plans, decided not to acquire the access easement across the property frontage, left JBE’s curb cut intact, closed the 63rd Street–Cliff Avenue intersection, installed a median preventing left turns into the property, and expanded a right-turn lane within previously acquired right-of-way.
- The State amended its condemnation petition to reflect the revised plans; JBE declined to stipulate to dismissal and pursued discovery and valuation evidence.
- The circuit court granted summary judgment to the State, concluding no compensable taking or damaging occurred under the actual post-construction configuration; JBE appealed.
- The Supreme Court reversed and remanded for a jury trial on damages, concluding (a) the State could not abandon the taking after filing a declaration of taking and (b) JBE is entitled to compensation measured by the interest the State acquired (the right to control access to Cliff Avenue).
Issues
| Issue | Plaintiff's Argument (JBE) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Did the parties agree to eliminate the taking? | JBE contends it never agreed to exclude the interest; it refused to sign the stipulation and preserved its compensation claim. | State contends JBE consented (through negotiations, waivers, and not objecting to amended pleadings) so the taking was effectively eliminated. | No agreement under SDCL 31-19-37 was shown; informal negotiations/amendment did not constitute a formal exclusion by the AG. |
| 2. Can the State abandon a quick-take after filing a declaration of taking? | JBE: once declaration filed and waiver made, title vested in State and JBE has right to compensation; State cannot abandon. | State: after amending plans the State no longer effected a taking and therefore no compensable interest remains. | State may not abandon a condemnation after a declaration of taking (SDCL 31-19-35, 31-19-24); the circuit court erred in allowing abandonment. |
| 3. Did the declaration of taking preclude summary judgment for the State on compensation? | JBE: declaration vested the acquired interest in the State and JBE is entitled to jury determination of just compensation measured by the right the State acquired. | State: because it left physical access in place and altered plans, no compensable taking/damage occurred and summary judgment is appropriate. | Declaration precluded summary judgment for the State; jury must determine compensation because damage is measured by the right acquired (what State may do), not necessarily by what the State actually did. |
| 4. Must JBE assert a counterclaim for additional alleged damage (e.g., turn-lane expansion)? | JBE argues the turn-lane expansion affects before-and-after valuation and raised the issue below; it should be able to pursue compensation for all project impacts now. | State contends JBE did not appeal on the turn-lane theory and the lane expansion occurred within a previously acquired 42-foot strip, possibly within prior taking scope. | Majority: remand for jury on access-taking; if JBE pursues turn-lane theory it may assert it on remand (court should determine whether the expansion falls within an earlier taking). Dissent would allow the trial court to address turn-lane/damaging claim without additional pleadings. |
Key Cases Cited
- State v. Richey Motor Co., 270 N.W.2d 48 (S.D. 1978) (condemnor may present evidence of actions minimizing consequential damages to remainder, but cannot abandon acquired interest)
- State v. Miller & Walsh, 889 N.W.2d 141 (S.D. 2016) (landowners may obtain compensation for loss resulting from closure or impairment of access as part of overall project impacts)
- Darnall v. State, 108 N.W.2d 201 (S.D. 1961) (constitutional protection requiring compensation only when State infringes a recognized property right)
- Hyde v. Minn., Dak. & Pac. Ry. Co., 136 N.W. 92 (S.D. 1912) (landowner has private right of access where land abuts a highway)
- Searle v. City of Lead, 73 N.W. 101 (S.D. 1897) (appropriation or impairment of abutting landowner’s access is compensable)
- Morris Family, LLC v. S.D. Dep't of Transp., 857 N.W.2d 865 (S.D. 2014) (court should determine whether later acts fall within scope of prior taking)
- Rupert v. City of Rapid City, 827 N.W.2d 55 (S.D. 2013) (damaging to property by use of other property can be compensable; requires showing of particular invasion and peculiarity of injury to owner)