*1 granted custody 131 N.W.2d children was "Since being upon stipulation testimony parties taken without finding made, on the issue and no of fitness was the court's deter- judicata changed mination is not res nor does the rule of circum- apply". stances my opinion ample
In circumstances there are facts and sub- constituting changed sequent to the final decree circumstances warranting custody modification of the child order this case and the best interest and welfare of the child demand it. ux., STATE,
HURLEYet Plaintiffs v. Defendant
(143 722) N.W.2d (File 1966) Opinion No. 10110. filed June *3 McCullen, Sieler, Bangs, Varilek, Foye, Butler & Sieler & Rapid City, plaintiffs. for Farrar, Wehde, Gen., Atty. Frank L. Sp. B. Asst. John Gen., Pierre,
Atty. for defendant. HANSON, Judge.' chapter, trust,
This is the protracted final we proceedings involving damages abutting by claimed property owner loss of access Rapid to West City. orig- Boulevard in The action
159
City,
Rapid
City
Hurley
city.
appeal,
On
mated
city
was
was determined
it
121 N.W.2d
then
Plaintiffs
claimed.
legally
responsible
$75,000
South
State of
amount
claim in the
filed a
un-
commenced
action
and this
was denied
The claim
Dakota.
Parker, one
Thomas
Hon. F.
Supp.
33.0604.
SDC
der
Circuit,
appointed Ref-
judges
was
the Seventh
Judicial
questions
cer-
During
pretrial
were
certain
reference
eree.
Hurley
S.D.
by
this court
to and determined
tified
by the Ref-
heard
thereafter
were
The issues
It is that an owner of land abutting on a highway conventional private street or has certain rights highway general in the street or distinct from that of the public. 105(1), Right 29A p. Eminent seq. Domain 424 et § C.J.S. rights of access is one of these which cannot be public materially taken for impaired use or compensa without 105(2), p. long tion. 29A Eminent Domain 429. This has C.J.S. been the settled early law of this state. In the case of Edmison 77, Lowry, 3 S.D. 52 N.W. 17 L.R.A. the court right abutting distinct, said: "This peculiar, of the owner is a right separate general and public from that of the to use such public includes, highway. rights street as a only It general public, light but the further to the street air, access, ingress, egress, subject times, only at all rights public to the easement of the municipality. of the This to an premises unobstructed street in front of his light air, access, ingress, egress, belonging to an abutt ing owner, part property, constitutes the most valuable thoroughfares especially streets, in crowded and on business rights property, many instances, and without these would greatly rights, therefore, diminished in value. These con use, stitute except upon that cannot be taken for just payment compensation. Minnesota, Hyde See also D. Co., Ry. L.R.A.,N.S., & P. 136 N.W. *5 part century the latter
Until of last most states refused compensate damaged to owner of land which had been public improvement construction of where there was no physical any part theory of on the "taking" consequential were under the not recoverable clauses their eminent domain constitutional clauses. This was recognized unjust and "in 1870 a constitutional amendment adopted providing private property was Illinois should public be neither taken NOR DAMAGEDfor use without com- pensation. by many This action Illinois was followed * * other states It is now contained in the constitutions of Alabama, Arizona, Arkansas, California, Colorado, Georgia, Illi- nois, Kentucky, Louisiana, Minnesota, Missouri, Mississippi, Mon- tana, Nebraska, Mexico, Dakota, Oklahoma, New North Penn- Virginia, sylvania, South Wyoming Dakota, Texas, Utah, Virginia, Washington, * [*] It is under later provision West against 'damage' protecting of the constitution an owner that a compensation landowner claim destruction or dis- light air, accessibility, turbance easements of and of intangible rights enjoys such other as he in connection with ownership and as incidental to the of the land itself". 2 Nichols 6.44, 486, pp. on Eminent Domain long recognized
This basic rule has
been
in South Da
e.,
though
part
kota i.
physically
even
no
is
taken the
is
landowner
entitled
under the tak
ing
damaging
VI)
13,
(§
clause
our constitution
Art.
when
public
damage
improvement
the construction of a
prop
causes
erty
consequential injury
peculiar
"if the
is
to the owner's land
High
not of kind
sufferéd
as a whole." State
Bloom,
way
572;
Commission
v.
S.D.
93 N.W.2d
Searle
Lead,
City
345;
10 S.D.
73 N.W.
39 L.R.A.
Whit
Deadwood,
City
202;
taker
12 S.D
82 N.W.
In Re
Drainage
County
Ditch,
Yankton-Clay
160N.W. 732.
granted
Specific statutory authority
highway
to the state
department
rights
acquire "private
public property
for con-
roads,
including rights
trolled-access facilities and service
* *
access, air, view,
light
Supp.
SDC 1960
28.09A05.
equally
settled, however,
abutting
It is
well
that an
absolute,
subject
landowner's
of access is not
but
*6
regulation
by the
under
its
and restriction
state
reasonable
expressed
power
public
police
As
in Darnall v.
in the
interest.
State,
highway
a
"The construction of
In each the relative the public private and interests must be considered and the reason regulation degree ableness of the and of its the interference with If, public determined. after the construction a abutting improvement landowner continues to have reason property, compensable complaint. able access to his he has no right destroyed materially impaired, But if the access damages compensable injury peculiar are if the sustained gen the owner's land and not of a kind suffered erally. regulations reasonable, "police In other words must be cannot, guise police power, and the under of the regulations impose go arbitrary beyond unreasonable which power, deprive person property effect his within purview domain, depriving law of eminent injurious profitable property per owner of all use of the not se restricting pernicious, property the lawful uses to which the put value, destroying restricting permanently can be its so property any the use of it cannot be used reasonable purpose, completely destroying the beneficial interest of the 6, p. owner." 29A Eminent Domain C.J.S. case, present plaintiffs' property
In the is situated on the corner of two City Rapid streets in a City. commercial zone of the free, open, Before the construction of Interstate 90 and unobstruc- ted access was from available both Omaha Street highest, on the south and West on Boulevard Its east. best profitable most use was for an automobile station service contributing major its value considerations one of the Negotia- to two streets. purpose access was the for such major progress companies when state oil were in tions with closing access to the barrier all the steel erected Street. distance on Omaha and for a limited Boulevard West only traffic on Omaha to the west bound left access The barrier Likewise, pedestrian was closed off from all traffic Street. Consequently, correctly con- the Referee the south. east and from impaired substantially plaintiffs' of access was cluded compensable they were differ- loss. Their suffered degree merely experienced from that ent in kind and *8 general of access was and their requiring compensation sense to be in the constitutional taken paid therefor. damages for the obstruction or sub
The measure
of
abutting
impairment
of
of an
landowner's
access
stantial
highway
the market value
a street or
is
difference between
best,
highest,
profit
property
most
its
and
considered
at
immediately
immediately
after the destruc
use
before and
able
Boxberger
Commission,
Highway
impairment.
or
v. State
tion
plaintiffs
acquired
165 parcel. many could "In cases Hie and be considered one used can, law, lots are distinct or court a matter determine otherwise, ordinarily practical question it is a but be decided jury upon passes or other similar tribunal which matters fact, appear- consider use and which should evidence on the legal land, its intent of its ance of divisions owner separate and conclude whether on the whole the lots not. are map In such cases the land itself rather than the should be looked at, part parcel separate and one of a is not considered bought merely independent it because was at different time separated imaginary from the rest and it line." Domain, 14.31, p. 4 on Nichols Eminent continuously Plaintiffs 1 have owned Lots and 2 since barrier, fence, street, physical alley, 1954. There is no line in tervening They separate only land plats. between them. are on long. 1Lot is 40 feet wide feet Lot 2 feet wide at junction Street, only its with Lot 1 on Omaha but it extends feet north fans out to width of 63.9 feet its across northern irregular location, boundary. shape, its Because of size conjunction particularly adaptable two lots in were and valuable as an automobile service station. The owners held the singular negotiating major purpose for this and were with oil *9 companies for premises. a favorable sale or lease of Access major contributing to West Boulevard was a consideration their value. Without such access the value of the lots was nec essarily permanently any purpose and reduced. Their for use circumstances, materially was diminished. Under the Ref single properly parcel eree considered Lots 1 2 and as a unit or damages. for the assessment of
As the constitute for the tak ing by highway right-of-way, of the state State, appropriation payment. there exists an Darnall 79 59, We, therefore, S.D. 108 adopt N.W.2d 201. confirm and Report judgment entry Referee order favor plaintiffs $20,000 the State of South Dakota for the sum of together with percent per interest thereon at the rate of 6 annum day April, 19th from the
166
Although disposed directly have been the issues involved interest, public compelled, in the to consider ade- we feel remedy prop- quacy whose now afforded a landowner just damaged compensation. erty without has been taken 13, question of the South allied is whether or not Art. VI An § self-executing. its amendment /Dakota Before Constitution 13, by people provided Art. VI "Private § just use, damaged, public com- shall not be taken for without jury, paid pensation as as determined which shall be soon ** ascertained, possession it can before is taken amended, provides not be As it now "Private shall tak- just use, damaged, compensation, en for without which according legal procedure will be determined established * * *" Legislature according 6 Article. to Section this by jury Ch. Laws of 1961. Trial in condemnation cases guaranteed still in the reference 6 of Art. amendment by jury VI which "the remain inviolate assures trial shall controversy shall extend to all cases [*] * at law without regard to the amount legislature pro- adequately provided has remedies are to a cedures in condemnation actions which available con- 28.13A, 37.40, Supp. demnor. and Ch. Laws See SDC However, person specific remedy 1963.' no is afforded a whose condemning damaged authority land has been taken words, compensation. constitu- without In he has a basic other right, tional but no for its enforcement. question S.D. in Darnall
This was considered an inverse condemnation ac- N.W.2d which involved origin- by private the state. The action landowners tion jurisdiction court, un- however this court assumed in circuit ated majority Supp. provisions 33.0604. The of SDC 1960 der the adequate provided had court concluded *10 question consequently or remedy by the of whether not 33.0604 self-executing was South Constitution Art. VI of Dakota plaintiffs law question a common whether had the and damages alleged of their in circuit court the redress action not decided. was Supp. provides: 33.0604
SDC deeming competent any person "It shall be him- aggrieved by the refusal the State Auditor self to al- just against state, any low claim the to commence against filing action the state with the Clerk of the foregoing Supreme in Court accordance with sections setting complaint fully particularly forth and the nature of the claim. He shall at the same time file an undertak- ing dollars, penal with sum five hundred two or sureties, Treasurer, approved be more the State indemnify to the effect he will the state all action, pay costs that accrue such and to the pros- Clerk of said all Court costs in case he shall fail to action, judgment against state; his ecute obtain a thereupon placed upon and the action shall be the calen- dar of said Court. having plaintiff, days
"The within ten after filed undertaking, complaint copy such and shall serve complaint upon Attorney General and State Auditor, together plead with a notice to answer thereto thirty days complaint within after the of such service notice, service;' day Attorney exclusive of the thereupon required plead shall General be answer specified within the time notice. such "The trial of such action shall be conducted in ac- foregoing any special cordance with the sections particular or order rule made for trial case Supreme Court. any "No execution shall issue the state on judgment, judgment against but whenever final the state any shall have been obtained in such action the Clerk Supreme shall Court make furnish the State duly judgment, transcript Auditor a certified of such thereupon Auditor shall audit the amount of awarded, paid and costs therein and the same shall Treasury." out of the State *11 condemnation actions Darnall several inverse
Since brought permissive in this under state been court have experience clearly demon- provisions This of the above statute. remedy adequate procedure not afford an strates such does damaged private persons have taken or lands been whose following compensation reasons: state without required $500 is assert constitutional 1. A bond right; grace jury than a
2. trial a matter rather A guaranted VI Art of our Art. VI § § constitution; indispensable Necessary parties defendant can- or 3. joined; not be specific precedent must be a
4. condition there As a pay presented; appropriation the claim referee; to a questions must be referred 5. of fact All limited, delaying complex, in na- procedure contrary spirit Art. our VI of to the ture and § persons courts “All which assures all Constitution every injury open, done man for shall property, person reputation, have shall him in his justice, law, remedy due course delay"; denial without administered qualified it does not af- it is restrictive 7. Because satisfactory, complete remedy; proper, ford a proper Supreme forum for the de- is not 8. The Court issues. termination fact adequate which can be of an
In the absence has been taken whose condemnees invoked damaged Art. VI of by the without state self-executing. cases In such to be is deemed our Constitution *12 aggrieved a law action in landowner has common circuit right jury may by trial where his constitutional to be as court Lead, City This conclusion was forecast in Searle v. serted. 345, S.D. 73 N.W. 39 L.R.A. wherein this court ob 10 provisions that "The served constitution are not limited change established, grade general, a once but are and in leg public for clude all use. language is islature not authorized to restrict take protection the citizen the the constitution has thrown around him property. provision his This the constitution is self-execut ing, and, effect, carry if no there was law it into court of would, equity power, provide in the its exercise of inherent some ascertaining damages, any, by method for if caused the in great jury weight threatened." This is accord with the of auth according following ority summary appearing to the in 16 C.J.S. 49, p. authority 149: Const.Law "While there is some self-executing, provision generally such a is not it is held that prohibition taking damaging private a constitutional just property for use without therefor is though self-executing, ascertaining even the method such com legislative pensation leg requires is left for determination. It no right islation for its enforcement and confers the to obtain com regardless pensation statutory provision therefor. Neither con legislative remedy by sent to sue the state nor the creation of a necessary enactment is to obtain relief for a violation of the provision. provision may constitutional A constitutional that suits brought against be the state in such manner and in such courts require shall be directed law does not the enactment of a brought may statute before suit enforce constitutional damaging provision property pub compensation. lic use without When the constitution forbids taking of, damage to, private property, points out no remedy and no statute affords one for the invasion secured, law, provides thus the common which wrong, every remedy for appropriate will furnish the action for grievance." the redress of such
Therefore, by contrary this caveat we overrule conclusions concerning adequacy remedy afforded SDC I960
170 alleged Supp. to have whose 33.0604 landowners just damaged by compensation. without taken or state been Refining Co., Ry. U.S. & Co. v. Sunburst Oil Great Northern adequate 360. In the absence of an L.Ed. S.Ct. in- provided which condemnees cases, VI of our Section Article Constitution voke such self-executing granting them a of trial deemed to be jury in our the circuit courts of state. J., HOMEYER,
RENTTO, J., concur. P. *13 BIEGELMEIER,J., part part. in dissents in concurs ROBERTS,J., dissents. (concurring dissenting
BIEGELMEIER,Judge part). part, in in opinion the issues in the in as far as it determines I concur judgment; directly and in the affirmance of but involved agree actions be commen- with direction similar cannot may originally in the circuit court. this be and tried While ced exists, presently method than or more and a better desirable existing, by accurately the con- heretofore choice is dictated legislative govern- by department of be made stitution to judicial Ill, department. Art. 27 of our Con- not the ment and § reads; legislature by direct law in what "The shall stitution still brought against what suits in courts manner and enacting by direction SDC has made such state." The Supp. me mak- 33.0604and that to forecloses court from 1960 ing a different direction. State, with of sover-
This is an action attributes 2, eignty, permit States does not a state one which 81 § C.J.S. any by individual in court. 81 States to be sued an §§ C.J.S. 215; immunity 108N.W.2d 201. This Darnall v. except only an action the United States or an- absolute brought Supreme which must be the United States other state S. and Article 11 of Article of the U. Constitution Court. § thereof. the Amendments majority reasons this direction are numbered
opinion here discussed same numbers: bringing requirement A
1. a reasonable bond before a requirement. an suit the state unconstitutional Co., City of Mitchell v. Western Public Service 124 Neb. 484.
N.W. 2. & 5. In Division III of Darnall we said under SDC 1960 33.0604, Code, Supp. formerly plaintiff 2111 of the 1919 had § jury majority constitutional of trial opinion which the recognize. continues parties
3. There is no need additional if the state is liable. XI, always provided: Article our Constitution has * * * money expended "No indebtedness shall be incurred or upon and no warrant shall be except drawn the state treasurer pursuance appropriation specific purpose for the first opinion appropriation made." The holds an has been made to pay plaintiffs' However, I claims in which concur. I am reluct- is, listing ant change, to believe court it as reason for the intending *14 appropriation requirement exclude from these so, determining question argued claims. If the court is a not and. reaching far in effect. procedure complex
6. & 7. That is the not or difficult is in- dicated the number of such actions filed in this court and de- dispatch termined with more than circuit court actions and re- sulting appeals. Jury Supreme trials are not allowed in the Court "but * * * questions
proper may cases of fact be sent to a cir- V, jury." for cuit court trial before a Art. S. D. Constitution. provision Our thus makes Constitution for such trials and the Supreme many fact States appointed United Court has times mas- ters and other triers of issues of fact and law in that court does pressing present indicate a need for the direction. That de- legislature. for termination the majority opinion con- reached as the result
An anomalous judg- damages finding entry of a and the of its referee's firms the circuit same time it declares court while at the of this ment jurisdiction jurisdiction this does not have court courts have of these actions. (dissenting).
ROBERTS, Judge against of South Dakota to re- action the State is an This taking rights damages alleged of access street. for cover taking physical property of the of the invasion There was no of the into a limited-access plaintiffs. conversion street Before property plaintiffs had direct highway, whose abuts the street access. majority opinion the of a holds absence
provided state nevertheless be sub- damages jected at the instance of landowners recover to suits taking damaging private power under sovereign thus in effect defense domain and eminent being abrogated. immunity suit is Without confronted with issue, recognize precise announces its intention to court commencement and trial in the circuit the future the taking damaging courts of suits the state private property for use. opinion respectfully a uniform and
I dissent. The reverses state, adequate in this without rea- course decisions consistent son, sanc- a broad new construction of the constitution in the recov- tions actions circuit court the state for the ery prohibition on the basis constitutional damaging compensation. without Sovereign jurisdictional ques- immunity presents from suit sovereignty tion. The established doctrine cannot be *15 given recognition in own its sued its courts without consent Constitution, 27, III, providing Section "The our Article that in direct law in what shall what manner and in against brought may be suits the state." conclusion courts The resulting inevitably previous from a consideration decisions
173
judicial
granted by
power
the constitution
court is that
in this
against
authority
entertain a suit
the state
not embrace
does
legislative
sued. Mullen
action it has consented to be
unless
645;
171,
Reeves,
Dwight,
Mackey
42 S.D.
173N.W.
Rouke v.
&
700; Sigwald
State,
37,
153,
50
182 N.W.
S.D.
208
44 S.D.
162;
State,
482,
Granite Co. v.
54 S.D.
223 N.W.
N.W.
Wisconsin
503;
600;
State,
S.D.
240
Fransen v.
59
N.W.
Griffis v.
360,
In Mullen & Rouke v.
court considered
against
in the circuit court
an action commenced
State Board
Regents
power
to recover for the construction of a
house and
buildings
repairs of
The conclusion
at a state normal school.
against
upon
was reached that a suit
a state board
a claim
reality
is in
a claim
the state is to be deemed a
which
bring-
suit
the state. The state had
consented to the
ing of such action in the circuit court and suit therein was not
does not mean that an action at law or a
maintainable. This
claiming
against defendants,
equity
in
who
to act as
suit
while
rights
may
plaintiff,
officers of the state violate and invade the
Eagle
Gunderson,
Oil & Ref. Co. v.
not be maintained. White
S.D.
N.W.2d 769. questions in-
As a the constitutional basis discussion of volved, keep power of eminent do- we should in mind that the grant dependent upon specific constitution. in the main is not (Art. VI, original sovereignty. It is inherent in the section 13) damaging prohibited just purpose public as determined "without ascertained, jury, paid it can be which shall be as soon as prohibition possession is taken." This was relaxed before (Ch. 1961) after which became effective amendment Laws general Requirement com- approval at the election possession paid eliminated. pensation was advance pur- provides private for a The amendment *16 174 just damaged, taken, compensa- "without
pose shall not be according legal procedure tion, estab- will be determined which leg- jury. by by Legislature" as determined a The lished part. Chapter responded in Laws to this mandate islature power emin- procedure of the provides for exercise a taking con- for use in the domain ent High- Trunk and Interstate reconstruction of State struction patterned Systems. procedure somewhat after that ways The power under of emin- provided for condemnation 71A, Rule Federal Rules of in the federal courts. ent domain provision in 1963 statute which There is no Procedure. Civil authorizing consent to or the maintenance be construed as could except where a "substantial deviation the state of suits Highway Department written memoranda from the agreement, plans descriptions [*] [*] [*] amounts to an damage." present- situation is No such here additional does not authorize a landowner to commence a statute ed. The proceeding which the state could have commenced condemnation against him, failed to institute. but majority opinion in court has receded from the Darnall
The
201, holding
State, 79 S.D.
108 N.W.2d
that a landowner
Supreme
a
of action
Court
loss of access
has
highway.
Supp.
majority
SDC 1960
33.0604. The
stresses
holding including
of reasons
for the reversal of such
in-
number
remedy,
requirement
adequacy
the unreasonable
of a
appropriation
pay
specific
improp-
out of which to
the claim and
irony
er forum
determination
of fact issues. The
of this reason-
ing
question
validity
adequacy
pre-
is that no
giving
provisions
Supp.
of SDC
con-
sented.
33.0604
upon
the state to be sued
sent
claims disallowed
the state
my opinion
auditor were never
intended in
to embrace
an action
proceeding.
in the nature of a condemnation
This
statute is
origin having
legis-
early
been enacted at the first session of the
Chapter
inception
after statehood.
lature
Laws 1890. From its
regarded
until
decision
the Darnall case it had been
authorizing
bringing
a claims
statute
action in the
Supreme
upon
Court
a claim disallowed
the state auditor and
Sigwald
payment
appropriated.
for the
which there are funds
filed
Plaintiffs herein
with
S.D.
to enforce favor of self-executing Immunity construction. from suit acts as a though ordinarily a landowner is entitled barrier even to en- damages liability force to his in a common law ac- question immunity liability, then is not tion. The one of immunity from suit. but majority experience
I subscribe
the conclusion of the
adjudica-
desirability
has demonstrated the need and
of trial and
tion in the circuit courts of claims
state for
resulting
damaging
from the
public purpose.
say
IBut must
with deference that the constitu-
*18
my opinion
majority
tion in
cannot be construed as the
would
authority
it. The
has
have
the constitutional
designate
responsibility to
"in what manner and in what courts
brought against
impose
suits
the state" and to
such con-
public policy may
ditions and limitations as
seem to dictate.
451;
Goodhope v.
50 S.D.
211 N.W.
Barnsdall Refin-
ing
Welsh,
Corp.
proceed-
269 N.W.
If
in this
ing
law,
applied
the court has not
but made
it is in the sense of
good law,
expediency
escape
result
but I cannot
the con-
legislature.
province
that we
clusion
have invaded the
Vidal,
Dougherty
In
37 N.M.
21 P.2d
the court
question
comparable
considered the
of
under
constitu-
statutory provisions.
tional and
The court there said:
legally
practically
"Both
we consider the state's
immunity
important
from suit too
a matter to be trifled
sovereign
suit,
exempt
'A
with.
not because of
any
conception
theory,
formal
of obsolete
but on the lo
gical
ground
practical
legal
that there can be no
right
against
authority
as
that makes
law
on
Holmes,
depends.'
which the
Mr.
in Kawana
Justice
Polyblank,
526,527,
nakoa v.
205U.S.
27 S.Ct.
51L.Ed.
Legislature,
courts,
834. The
not to mention the
should
proceed slowly
subjecting
and with caution in
the state
exigencies
litigation. Langford
itself to the
States,
v. United
(11 Otto) 341,
101 U.S.
It Refining Welsh, Corp. supra. funds. Barnsdall of state ture constitution, language "no warrant shall be drawn of the In the pursuance except appropriation of an upon treasurer the state Constitution; XI, purpose first specific made." Sec. Art. for the Sigwald State, supra. majority opin- I do understand self-executing construction eminent do- hold that ion to dispenses necessity with the of the constitution main section payment of an appropriation to render effective award words, proceeding. In other condemnation an inverse prevails in the circuit court does not now which legislative provide action. without redress extent award, directing the court must first payment then of an In specifically available. In funds are made whether determine State, supra, the state there is dictum the effect that Damall v. guarantees provision which constitutional evade cannot obliged payment of a and is to make judgment proceeding. condemnation an inverse It rendered auditor issue a warrant for its the state not follow does by appropria- are no funds made available payment when there pre- specific purpose. Plaintiff in that case did not tion payment vail, proceeding of an award present in the but ordered. has been Supp. provisions 28.13A01 pertinent SDC *20 acquisition providing for of by Laws Ch.
amended Commission, Highway right way payment the State and of read; act, of
"That
from and after the effective date
this
lands,
any land or
easement
in same or ma-
whenever
right
necessary
way
terial
is
for
of
in order
to make a
changing,
grade,
widening,
proper
or for
relocat-
safe
maintaining
ing, constructing,
reconstructing,
repairing
any portion
Highway,
of the State Trunk
or whenever
necessary
providing
slopes,
pits,
it is
for
cut
borrow
chan-
changes, or
nel
to afford unobstructed vision on said State
danger
Highways
any point
Trunk
and at
of
travel,
light
way
pit,
for
of
and borrow
the state of South
Dakota,
through
Highway
its State
Commission
* * *
acquire
pay
shall
for
out of
same
state
* * *
highway funds
The cost
said land
of
or ma-
expense
purchase
terial and
of
or condemnation
shall
paid
part
Highway."
be
the cost of the
Trunk
State
interpretation
my
A
opinion
reasonable
the statute
"right
way"
physical property
that
the term
refers to the
over
highway
County,
which
extends. Alcorn v. Edmunds
59 S.D.
512,
Admittedly,
acquire
any
lands,
the state did not
"land or
right
way.
easement
in same or material"
for
This
not to
however,
say,
deprivation
that
may
ap-
of access which
abutting
purtenant
pro-
does not come within the
hibition
contained
the eminent domain
section of the con-
authorizing
stitution.
acquisition
We have
us a
before
statute
construction,
way
the state of
reconstruction
and main-
highways
appropriating
tenance
highway
state
funds
specifically
payment
for the
consequential
of such
damages
High-
way.
caused
such
State
way
Bloom,
Commission
180 damages abutting payment money own-
appropriate for the Bridge State, City Co. v. Kansas of access. for loss ers State, 343; supra; Cuka v. Griffis v. 250 N.W. legis- aptly stated that 83. It can be N.W.2d S.D. clear its and has made intention which consistent has been lature statutory interpretation. It has neither important con- is all abutting provided owner nor otherwise to suit sented herein of the nature claimed of ascertainment method payment. accordingly funds has not made available legislature may provisions such suits in cases make injuries dictates state activities as its wisdom caused there is impose and limitations. Where conditions reasonable judicial present proceeding, as in the or other no directly for relief. looked must be adjustable leg- only by plaintiffs claim of
Since the opinion islature, my proceeding be dismissed. should COIL, MYRON, Respondent Appellant (143 738) N.W.2d 22, 1966) (File Opinion filed June No. Rehearing July denied