*1 application The criterion for of this rule
include be one of “those who expectably from the
reasonably and deviate upon the
highway abutting and enter land travel,” ordinary
in the course of and that land, entry upon abutting
there be an property. Re-
in this case the railroad’s Com-
statement
ment e. rule was application City
its Kimball 35, 41, Falls, Sioux We said: motor driven vehicle
When a becomes unmanageable, or gotten
defective or has driver,
out control of the or when of the recklessly,
such vehicle is driven or when becomes and an ac- driver brought which was not
cident results in the
about some defects such accident not an inci- highway, travel, happen
dent to result of use is classed as an unusual
highways, but occurrence, (citations extraordinary
omitted) opinion, the failure the driver
(Lancaster) keep roadway the bus on the extraordinary occur-
was an unusual expected
rence the railroad was not guard against. I would anticipate trial court on this issue.
also affirm the KRYGER, Plaintiff
Elmer C. Appellant, DOKKEN,
Sigrid P.
No. 15159 Briefs Feb.
Considered on *2 although she has resided prop- on the
erty for forty years. over While conceding Appellee was not Appellant al- leged three alternate theories recovery. granted The trial court a motion for sum- mary judgment in Appellee favor of based on pleadings, depositions and affidavits parties. of both Appellant argues Appellee that while knowledge or notice of the abandoned well under our governing statutes aban- wells, existing doned and 46-6, SDCL ch. she was obliged, owner, nevertheless as an danger know of the proper and to take safety measures. agree. We do not The abandoned well statutes are not applicable they specifically because address duty property plug owners to exist wells when are abandoned or for They purport feited. do not provide Kessler, Brookings, Jim standard of care owners who have no appellant. knowledge previously or notice of aban doned property. wells on their George Boos, Milbank, B. for defendant appellee. We next determine if SDCL 21-10-81 obligates successive owners to abate an FOSHEIM, Chief Justice. continuing unknown Appellant nuisance as wrong claims or whether the contemplated appeal is taken Plaintiff Elmer C. by that statute is the creation or continua- Kryger (Appellant) from an judg- order and tion of a nuisance which does not arise ment Sigrid entered in favor of Defendant solely ownership of the land. (Appellee). P. Dokken 21-10-1,2 As we read SDCL essentially undisputed. facts are On nuisance involves an unlawful act or omis Appellee June held a auc- perform sion to The owner of property tion on her person- for the sale of duty has no to correct or discon property. al She marked sunken areas on tinue a nuisance knowledge without of it. neighboring flags lots with red to avoid In Waggoner Development, v. Midwestern However, possible Appellant accidents. Inc., (1967), stepped through 10 to 12 inches of sod into said: an abandoned Appellee’s property. well on consequence,
As a
injured
he was
with
One cannot be said in
manner to
anticipated permanent disability.
neglect
some
Ap-
perform
or refuse to
un-
pellee
knowledge
had no
of the abandoned
less he has
or be
(1)
provides:
Annoys, injures,
endangers
1. SDCL § 21-10-8
or
the com-
fort,
health,
others;
repose,
Every
or
successive owner of
who
neglects
continuing
upon,
decency;
Offends
abate a
of,
with, obstructs,
property,
or in
Unlawfully
the use
created
interferes
or
owner,
obstruct,
former
is liable therefor in the same
tends to
or renders
manner as the one who
river,
first created it.
navigable
bay,
passage, any lake or
canal,
basin,
stream,
any public park,
or
or
provides:
2. SDCL 21-10-1
street,
square,
highway;
or
unlawfully doing
A nuisance consists in
an
persons
any way
inse-
renders other
act,
omitting
perform duty,
or
which act
life,
property.
cure in
or in the use of
or omission either:
[plaintiff]
He
an
charged
knowledge that an act
invitee or business
authority
visitor. No citations of
harm
involves
to anoth-
required
support
of the well estab-
er.
principles
lished
(cites omitted).
62, 154 N.W.2d
land owes
invitee
or business visitor
Appellee had no
exercising
*3
the
of
reasonable or ordi-
well, it cannot be said that she
abandoned
nary
care for his
and is
for
liable
perform duty.
to
a
While an act of
failed
This, however,
duty.
the breach
of
of
may constitute a want
possessor
is the extent of the
The
care,
it
on a
of care
must be founded
is
to
of land
not an insurer as
the safe
person in
wrongdoer to the
owed
the
premises.
It is neces-
condition of the
or to
of which he is a member.
jured
a class
sary
pos-
that
that the
it be established
229,
283 N.W.2d
Hartung,
Blumhardt v.
presence
sessor had
of
(S.D.1979).
that
We conclude
the liabil
232
dangerous
premises
his
the
a
of successive owners to abate
continu
ity
or that
condition existed for such a
the
expressed
in SDCL 21-10-8
justify
to
period of time as
the inference
simply
ownership of
not arise
from
that he
of its existence.
49
See 58 Am.Jur.2d Nuisance
land.
N.W.2d at 793. He further
Id.
51
wrote:
Appel
of
It is also the contention
is when
unsafe
It
the
condition
attend-
necessary
it
to
lant that was not
establish
dangers
ant
have observed are
the
was
negligence because
abandoned well
possessor
known to
of land
not
the
injured party
which
a
who could not
a
person injured
known to the
that recov-
therefore,
and,
ery
permitted.
the harm
the owner
is
avoid
a
of
responsible
be
as matter
held
276, N.W.2d at 795.
51
danger” theory. Both
law under a “hidden
Norris,
principal
the
that the
rely
Ashley
v.
cite and
on Werth
parties
strictly
is
to
of
liable
owner
Co.,
(N.D.1972), in
899
Realty
199 N.W.2d
owes them an
invitees but rather
the North Dakota
affirmed.
repeatedly
of care has been
view,
perils.
In our
that
hidden
Modica,
514, 516
Stenholtz
position Appellee
the
supports
Cain,
(S.D.1978);
Underberg v.
see also
the
the court held that
defendant
since
(S.D.1984),and Mortenson
HENDERSON, (concurring spe- Justice
cially). case,
To understand this the reader must
appreciate majority minority opin-
ions in Mortenson Braley, Dakota, STATE of South Plaintiff footpad rubber anti-skid Appellee, missing from the ladder. It could reasonably inspected. Here,
have
been
however, there was a foot of
covering
dirt
BAWDON,
Jesse Harold
the well and it
could not
have
Appellant.
inspected. Therefore,
been
I
concur
No. 14829.
Court,
hue to
but
thought
my
content in
dissent in Morten
son,
Mortenson. it is reasonable that reasonably inspect owner of land should when he invites the
public onto his land to do business with so, Especially is this where he har-