Keogan v. Bergh
348 N.W.2d 462
S.D.
1984
Check Treatment

*1 word, evidence from which there is no conduct find that defendant’s jury could probability, that in all of such a nature

was acci- possibility, an distinguished

as from

dent would occur. finding that court’s

We affirm the trial genuine no of law there was

as a matter of fact as to whether

material issue by the was caused willful

accident of defendant.

wanton misconduct affirmed. summary judgment DUNN, MORGAN,

WOLLMAN,

HENDERSON, JJ., concur.

EVANS, sitting for Judge, FOSH- Circuit

EIM, C.J., disqualified. Margaret B.

Terence KEOGAN Appellants,

Keogan, Plaintiffs and Blec, Mack, BERGH, George Ralph

Philip

Marlys Spevak, and Edward as Mueller County for the of Cod Dakota;

ington, and the of South State Codington, State South Corporation, Defend a Public Appellees.

ants and

No. 14228.

Supreme Court of South Dakota. Briefs Feb. 1984.

Considered on 2,May

Decided *2 Circuit, pursuant

Third Judicial to SDCL 29,1981, 7-8-27 on June and a trial de novo Judgment was held. was entered on Feb- 22, 1983, ruary affirming the Board’s deci- sion. petitioners, Two of the Terence Keo- gan Margaret Keogan (appellants), B. appeal the judgment, raising circuit court disposition. four issues for our We are first asked to determine whether concluding the trial court erred in appel- standing lants appeal had no the Board’s pursuant decision to SDCL 7-8-27. Sec- ond, whether consideration of collateral by way background matters of historical is beyond Third, scope of a de novo trial. concluding whether the trial court erred in Board had no to relocate a secondary highway previously by vacated And, Township. finally, whether the applied trial court wrong burden of proof.

I. provides part: SDCL 7-8-27 “From all decisions of the board of commis- it, upon properly sioners matters before appeal there shall be allowed an to the ” by any person aggrieved circuit court .... Evenson, Boyd Todd D. of Gunderson & concept “aggrieved party” of an Lake, plaintiffs appellants. Clear not new to this Court ... the first in- Jr., Roger Ellyson, W. depth analysis “aggrieved party” of re- Watertown, Atty., State’s for defendants garding standing by a test for was made appellees. appeal this in an from a Court board of county commissioners’ decision. Bar- HENDERSON, Justice. Ewing, num v. 220 N.W. 135 appeal judgment is a from a In This civil Barnum we set forth the denying reopening following [‘any person section-line two test: think “[W]e highways. aggrieved’] only persons We affirm. can include such they affirmatively when are to show able 1, 1981, July petition signed by On they ‘aggrieved’ in that the sense twenty-six Codington County, residents of decision of South was filed with the Board of right suffer the denial of some claim of County Codington Coun- ” person property either of or .... Id. at (Board), requesting they reopen ty and lo- 53, 220 N.W. at 138. highways in Richland cate two section-line Application Northern States Power Township, Codington County. high- These (brack- Co., (S.D.1983) 328 N.W.2d ways had been vacated the Richland original). ets in Supervisors (Township) Board August ap The trial court determined that petition. pellants right Board denied the did not have a claim of or Court, Appeal privilege proposed high- was taken to the Circuit to location of the ways. Supposedly, having ultimately incorporated no claim of These facts were findings trial court’s facts and right, appellants “aggrieved” per- thus were not therefore, determining the out- and, standing to were considered no sons had Though appel- the de novo come of trial. disagree. appeal the decision. We Board’s stipulated, they objec- lants did so with Appellants did denial of a indeed suffer tion that none of matters were relevant right by having the two section- claim *3 present appeal, proceeding. to the On this The highways line remain vacated. argue they again that these historical mat- right to decision them the Board’s denies may irrelevant not be con- ters are and shortest, most access to their the direct of the nature of a sidered because inherent highway the property. farm Because of proceeding. disagree. Appel- de novo We denied closing, they and their tenants are objection misinterpretation rests on farmland, lants’ egress ingress and to and direct scope appeal of a de of the novo trial on circular in to move must take a route order agency. from an administrative equipment machinery. and farm appeal “An action of the from an concluding The trial court erred in county heard and commissioners shall be for appellants aggrieved persons are not de novo in court. SDCL determined circuit standing. not purposes Appellants were Thus, 7-8-30. the should de circuit court error, any in how prejudiced way this question independent the termine anew ... conclusion, Despite its the trial court ever. county the decision.” commissioners’ to on proceeded determine the other issues Hospital Valley Ass’n v. Jones Sioux appeal. 1981). 835, (S.D. County, 309 N.W.2d 837 independent judgment “The exercises court _” II. Chicago Ry. & North Co. Western trial, Schmidt, 223, 227, parties stipulated the to the fol- 180 N.W.2d At 233, lowing This the trial historical facts: means that it court should determine the issues before 25, 1) 1978, August petition On was appeal brought as if had been Township the filed with Richland originally. The court must review the evi Supervisors requesting Board of dence, findings make of fact and conclu the two roads at issue herein be vacat- law, judgment indepen and sions of render ed. agency the proceedings. dent of the This 31, 2) August the Richland On background, The trial court did. historical Supervisors Board of vacated the two stipulated parties, to the collater as was roads. the Board’s from which the al to decision 3) appeal Septem- Notice of served was taken. appeal Though was the evidence ber similar the same dealt with concerns before 4) deciding An election was held the is- Board, prior matters to these all occurred Township as to sue whether being adjudicated As petition herein. would Board’s decision to vacate in Cody, noted State v. 322 N.W.2d stand. (S.D.1982), n. 2 5) results 1 in favor Election were 35 to [jjudicial may notice taken of facts be of vacation. judicially may A once known.... court 6) Township The Board’s decision was judicial generally take notice of its own appealed to prior proceedings records or the same Board of Commissioners. may judicial case and take notice of an original proceedings record in which 7) They deci- affirmed Board’s engrafted ancillary supple- thereon or or sion. mentary thereto. 8) County appealed Board’s decision was Court, the Circuit Third Judicial Review these facts was within Circuit, independent appeal. scope which of an determination dismissed Further, stipulated (4)“County secondary highways,” the as the of the issues. unorganized rural local background for provided an historical facts unorganized counties and in the court, town- they were cer- issues before the counties, ships organized excluding in a resolution of tainly relevant and aided approved county highway system, The trial court did not err the issues. supervision under that are of a proceedings. considering previous commissioners or a county highway board. III. sub-chapters within SDCL ch. various may lo specifically, separately, the 31 set out highway cate, change “any public or vacate responsibilities these any city incorpo limits of or not within the location, vacation, agencies change, proper petition. upon a SDCL rated town” maintenance each of the classifica- within grants maintain this Appellants 31-3-22. have a unified scheme for tions. “We thus *4 of authority any to board unrestricted development, improvement the and of the any high to locate county commissioners contemplates highways of the state which court, however, believed way. The trial responsibility a division of burden and be- highway for ad statutory the scheme that township, county and state.” tween Van interpretation an ministration necessitated 265, Gemmill, Gerpen v. authority to new restricting the location N.W.2d highways which have never before roads or duty the of “It shall be the of board been creat in existence or which have been supervisors arrange to for the township - There by law but never established. ed construction, repair, and maintenance of fore, that the Board the court concluded secondary within the town- all roads a road authority to did not have locate duty of ship_” ... We refer to this by the or va previously vacated purpose of township for the the board the of the electors of by cated an election legislature directly has showing that the Township. agree. We duty upon this the and re- placed highway for ad- statutory scheme construction, repair sponsibility for the of begins with a definition ministration roads, secondary in of and maintenance pur- the highway designations four “[f]or placed such manner that it has the same powers duties and of pose clarifying the Highway the responsibility for charged the agencies with the various ... highway super- upon county the System ” highways .... administration com- intendent and the board These are: SDCL 31-1-5. High- upon the State ... and missioners Trunk way State (1) system,” highways Commission trunk “State Highway System .... to controlled designated by statute be department supervised Id. transportation; interpretation its The trial court based high- (2) system,” the “County highway whole, keep- as a reading of the statutes by the board of ways designated legislature, ing in mind the intent of organized in county commissioners pro- would have each appellants unlike who in highway board and the counties The trial court read in isolation. vision under the su- unorganized counties construction that the burden of reasoned that have these bodies pervision upon fall would have to and maintenance department approved been to the Board were Township unless transportation; County Highway into the take the roads insist Though appellants secondary System. (3) highways,” the “Township located, construction only the road townships that want organized highways corollary. necessary are a and maintenance by a board of town- administered allowing Thus, reasoned that the trial court ship supervisors; request legis- would do violence to the lative scheme for the administration of STATE of South Plaintiff highways agree. in this state. We Appellee, light In statutory high of the scheme for way holding administration and the in Van PHINNEY, Brian Defendant Gerpen, we cannot now hold that the trial Appellant. erred, court as a matter “A of law. hold ing overlapping that there are duties and No. 14308. responsibilities expressly other than those Supreme Court of South Dakota. be, fixed by legislature would not opinion, legislative our in accord with the Argued March 1984. plan confusing and would amount to 9,May Decided reasonably which is now clear.” Van Ger 268-69, pen, 72 S.D. at 33 N.W.2d at 280.

IV.

Having determined that the Board does reopen

not have the two sec-

tion-line Township, Richland appellants’

we need not reach final issue. *5 judgment uphold- of the trial court

ing the decision of the

Board Commissioners is affirmed.

WOLLMAN, MORGAN, JJ., DUNN and

concur.

FOSHEIM, C.J., concurs result.

POSHEIM, (concurring Chief Justice result).

The trial court correctly appel concluded “aggrieved persons.”

lants were not No

citizen right has a claim of to force a

proposed road through to run his land.

Failure to locate the caused no land, personal

loss of additional tax or bur obligation appellants.

den or law Application settled. See Northern Co., (S.D.

States Power 328 N.W.2d 852

1983); Ewing, Barnum v.

N.W.