Lead Opinion
[¶ 1.] Lawrence County (County) filed a condemnation petition for a runway expansion project to allow the use of Class BII Large aircraft at Black Hills Airport/Clyde Ice Field (airport). The matter was scheduled for a jury trial after County and the landowners could not agree on the value of the 206 acres condemned by the petition. County filed a motion for partial summary judgment to preclude private landowners from introducing evidence and testimony regarding the effects of landing and takeoff height restrictions on the remainder of the adjacent land. County did not draft or enact landing and takeoff height restriction ordinances at the time the condemnation petition was filed, but could be required to do so in the future by the Federal Aviation Administration (FAA). Landowners resisted and also sought to introduce evidence of additional height restrictions that could be imposed if the airport were to expand to permit Class
FACTS
[¶ 2.] In September 2007, County filed a petition to condemn approximately 206 acres of real property for an airport runway expansion project. The 206 acres, located north of and contiguous to the airport, were part of a larger parcel of approximately 515 acres owned by the estate of Elvin E. Mitchell and Chris Miller (Owners). County’s resolution 2006-38 proclaimed its purpose in condemning the land:
AND WHEREAS, the purpose of the proposed action is to enhance the utility and safety of Black Hills Airport/Clyde Ice Field to accommodate current and projected levels of aviation activity by the design aircraft family and provide Instrument Flight Rules capability. The need for the proposed action is related to compliance with FAA standards for BII Large aircraft, specifically runway length and instrument approaches.
The resolution described a taking of only the 206 acres of Owners’ 515-acre tract. The resolution did not include any reference to the airspace above the remaining 309 acres.
[¶ 3.] The 515-acre tract had been used for ranching for three generations at the time of the condemnation. However, the highest and best use of the land, as determined by both parties, was low density, or large-lot, residential use due to its proximity to a development area around Spearfish, South Dakota. This major growth area had experienced significant expansion in both population and development in the prior decade.
[¶ 4.] The parties could not agree on the “before” and “after” value of the complete 515-acre tract from which the 206 acres were taken. Owners’ appraiser concluded the value of the taking was $1,683,000. Owners’ appraiser did not consider any diminution in the value of the remaining 309 acres in the event County’s ordinances imposed height restrictions for the landing and takeoff for Class BII Large aircraft, or if it were to permit larger aircraft of Category C and D level aircraft to use the runway, which could impose additional height restrictions on the remaining acreage at some point in the future. County’s appraiser also did not consider any diminution in value for the remaining 309 acres due to the potential for future height restrictions. County’s appraised value of the condemned 206 acres was $1,173,058. Trial on the amount of damages for the taking was held on April 2, 2009. The jury returned a verdict for the landowners for the taking of the 206 acres in the amount of $1,218,983.65.
[¶ 5.] Prior to the trial, on November 5, 2008, County filed a motion for partial summary judgment on the alleged effect on Owners’ remaining 309 acres. County asked in its motion “that any claim of taking by alleged or supposed loss of use by reason of alleged height restrictions or any other collateral impact of the runway extension project be dismissed.” It further sought an order precluding Owners from arguing or offering evidence of any such claim during the jury trial on the value of the 206 condemned acres. County also sought to preclude the admission of any additional expert witnesses or reports as the parties were required to disclose expert witnesses by March 31, 2008, and
[¶ 6.] Owners resisted the motion and hired Clyde Pittman, a national expert in determining structural height limitations resulting from FAA regulations, to evaluate the impact of the runway expansion on the remaining 309 acres. His report indicated that the extension of the runway for Class BII Large aircraft would result in height restrictions on the remaining 309 acres in order to comply with FAA takeoff and landing patterns and safety requirements. Pittman also indicated that the expansion as planned would enable the use of Category C level aircraft without requiring the condemnation of more land, but would impose additional height restrictions on the remaining 309 acres. The use of Category C aircraft would enlarge the airport circling area by an additional 0.2 nautical miles from the runway and extend out farther over the remaining 309 acres. If County eventually expanded the airport for the use of Category D level aircraft, the circling area would extend 2.3 nautical miles from the runway. Pittman’s report further indicated such an expansion, if undertaken, would extend completely over the remaining 309 acres. He also opined the expansion would subject the 309 remaining acres to actual physical invasion by aircraft arriving at and departing from the airport. FAA regulations would in turn impose height limitations on the remaining 309 acres. However, no evidence was presented by Owners of the diminution in value of the remaining 309 acres due to height restrictions that might be imposed in the future.
[¶ 7.] The trial court granted County’s motion for partial summary judgment and Pittman’s report was not considered by the jury in determining the value of the condemned 206 acres. The trial court concluded that Pittman’s report was conjecture and speculation. It further concluded that Owners’ evidence of possible future airspace intrusion was a “mere general allegation! ]” and did not set forth specific facts to show genuine issues of material fact for trial on the issue of the collateral impact of the runway extension project.
[¶ 8.] Owners appeal raising the following issues:
1. Whether a factual basis existed to support a claim for additional compensation for the invasion of the airr space over Owners’ remaining 309 acres.
2. Does the decision of the trial court preclude future claims by Owners for the taking of air space over the remaining 309 acres.
STANDARD OF REVIEW
[¶ 9.] Summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” De Smet Farm Mut. Ins. Co. of S.D. v. Gulbranson Devel. Co., Inc.,
ANALYSIS AND DECISION
[¶ 10.] 1. Whether a factual basis existed to support a claim for additional compensation for the invasion of the airspace over Owners’ remaining 309 acres.
[¶ 11.] SDCL 50-13-3 establishes certain private property rights over airspace. “The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in section 50-13-4.”
[¶ 12.] Under Article VI, section 13 of the South Dakota Constitution, “[p]rivate property shall not be taken for public use, or damaged without just eom-pensation[.]”
Accordingly, the damage clause of the South Dakota Constitution allows a property owner to seek compensation “ ‘for the destruction or disturbance of easements of light and air, and of aeces-sibility, or of such other intangible rights as he enjoys in connection with and as incidental to the ownership of the land itself.’ ”
Hall v. State,
[¶ 13.] Owners argue County, as the moving party, was required to show the absence of genuine issues of material fact before it triggered Owners’ burden to establish genuine issues of material fact. They further argue the trial court improperly shifted the burden to Owners, as the non-moving party resisting County’s motion for summary judgment, by requiring Owners to show genuine issues of material fact before allowing the issue to go to the jury.
[¶ 14.] While we often distinguish between the moving and non-moving party in referring to the parties’ summary judgment burdens, the more precise inquiry looks to who will carry the burden of proof on the claim or defense at trial.*367 Entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.
Gulbranson Devel. Co.,
[¶ 15.] Accordingly, Owners were required to present facts, rather than “unsupported conclusions and speculative statements, which do not raise a genuine issue of fact.” See id. (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc.,
[¶ 16.] We agree with the trial court that Owners submitted nothing more than unsupported conclusions and speculative statements in resistance to County’s motion for partial summary judgment. This Court’s eminent domain precedents have held that severance damages will not be automatically presumed where part of the parcel is taken or damaged. David Gilbertson, Note, Condemnation of Agricultural Land in South Dakota, 20 SD Law Rev 623, 632 (1975).
Damages in an eminent domain proceeding must include present and prospective damages caused by the condemnor but not those which are speculative or remote or damages which are sentimental only. Speculative damages are those in which either the very existence of the damage is doubtful or the pecuniary seriousness of the damages is grossly conjectural. The prospective uses of the property which may be considered in establishing just compensation must be so reasonably probable as to have an effect on the present market value of the land; a purely imaginative or speculative use cannot be considered. There must be a possibility significant enough to be a practical consideration which would actually influence prices.
Id. (citations omitted).
[¶ 17.] Here, the lack of evidence goes, not to the issue of severance damages, but to the alleged invasion itself. We note that there is nothing in the condemnation documents filed by County or subsequent pleadings that sought to limit in any way the use of the airspace over Owners’ remaining 309 acres. All that Owners provided was speculation about a potential future invasion of the airspace and no evidence as to what damage would result to the remaining 309 acres by any ordinances
[¶ 18.] Owners analogize the facts of their case to the facts in Benson v. State,
[¶ 19.] The authority granted to County for condemnation is set forth in SDCL ch. 21-35. In order to invoke the right to condemn private property, SDCL 21-35-2 requires County’s petition to “contain a description of the property to be taken or damaged.” It shall also set forth “the purpose for which the property is to be taken or damaged.” Here, the petition only sought to acquire the 206 acres with its stated purpose being for the use of BII Large aircraft and Owners have not shown an actual intrusion upon the remaining 309 acres by Class BII Large, Class C, or Class D aircraft at this time. Nor have Owners shown that County has taken any affirmative steps to allow Class C and Class D aircraft to use the runway. All that Owners allege is that the enactment of undrafted ordinances could impose height restrictions over the 309 remaining acres. There is no comparison between the actual shots fired in Benson to the theoretical use of an airfield by aircraft that are not currently permitted to use the airport.
[¶20.] The trial court concluded Owners failed to show they would be able to place sufficient evidence in the record at trial to create a question of material fact
[¶ 21.] With regard to calculating the alleged damages, without a formal declaration of taking by the governmental entity, “the correct date or time that compensation is to be ascertained is the date of taking or damaging-or here the substantial interference with the owner’s [property] rights.” Hurley v. State (Hurley I),
[¶ 22.] 2. Does the decision of the trial court preclude future claims by Owners for the taking of air space over the remaining 309 acres.
[¶ 23.] Owners contend that while a real injury has been suffered by the remaining 309 acres, the extent of the injury was unknown at the time County filed its motion for partial summary judgment. Therefore, Owners argue there can be no preclusive effect preventing a subsequent condemnation or inverse condemnation action if County enacts future restrictive regulations pertaining to Class BII Large or Category C and D aircraft. County argues Owners may have had a viable claim for a taking of airspace over the remaining 309 acres, but failed to submit admissible evidence of the diminution, if any, in its market value. Thus, County contends the claim was not factually supported, but nonetheless could have been, and as a result the claim is precluded in the future under the doctrine of res judica-ta because the order granting summary judgment was a final judgment on the merits of Owners’ claim. In the previous issue we concluded there was no current factual basis to support a claim for damages to the airspace above the remaining 309 acres. There remains the issue of the legal effect of the trial court’s dismissal of the unsupported claim by summary judgment.
[¶ 24.] As this Court recently noted, “[t]he doctrine of res judicata bars any ‘attempt to relitigate a cause of action by the parties or one of the parties in privity to a party to an earlier suit.’ ” Dakota Plains AG Center, LLC v. Smithey,
[i]n order for res judicata to apply, the cause of action in the prior litigation must be the same as the cause of action in the subsequent litigation. This Court adopted the broad test in Hanson v. Hunt Oil Co.,505 F.2d 1237 (8th Cir. 1974), for determining if both causes of*370 action are the same. A cause of action is comprised of the facts that gave rise to, or established, the right the party-seeks to enforce. If the wrong sought to be redressed is the same in both actions, then res judicata applies.
Id. ¶ 20,
[¶ 25.] In the instant case, County’s motion for partial summary judgment requested an order from the trial court “dismissing a purported or alleged claim of taking by reason of alleged or purported height restrictions that [Owners’] expert or experts believe might occur upon or after completion of the runway extension project on Black Hills Clyde Ice Field.” County further requested the order declare “that any claim of taking by alleged or supposed loss of use by reason of alleged height restrictions or any other collateral impact of the runway extension project be dismissed, and that [Owners] be precluded from arguing or offering evidence of any such claim.” The trial court granted County’s motion for partial summary judgment and stated “that [Owners’] evidence of possible future airspace intrusion are [sic] ‘mere general allegations’ which do [sic] not set forth specific facts to prevent issuance of a judgment.” (emphasis added.)
[¶ 26.] Under a claim of inverse condemnation, owners are entitled to just compensation for a de facto taking of a portion of their remaining property at the point such a taking actually occurs. Hurley I,
[¶ 27.] A taking of an airspace easement over private property occurs when the actions of the government create a “direct and immediate interference with the use and enjoyment of the land.” Branning v. United States,
[¶ 28.] Case law on airspace easements created by noise holds that when a further taking occurs after an initial claim of taking has been granted or denied, a claim for an additional easement may prevail. Id. at 100 (citing Avery v. United States,
[¶ 29.] The County cannot have it both ways and use the first condemnation petition to exact a future taking or damage to the 309 acres not listed in its petition. Permitting County’s argument to prevail would result in a future taking without compensation for the Owners. County has filed a petition seeking to acquire title to and pay just compensation for the 206 acres. As a part of this proceeding, it has steadfastly denied it owes any further compensation for severance damages for air easements to the remaining 309 acres. We agree with the trial court’s conclusion upholding this argument. The County cannot argue both that the time for claiming severance damages has somehow passed with this litigation and that no future claims are allowed under a doctrine of res judicata should such restrictions be put in place in the future. To rule otherwise would be a direct violation of Article VI, section 13 and the Owners’ private property rights. It would also be in direct violation of SDCL 21-35-2, which has consistently required the explicit description of the property to be condemned. See City of Sioux Falls v. Missouri Basin Mun. Power,
[¶ 30.] In Missouri Basin Mun. Power Agency, we had the opportunity to address the issue of the adequacy of a legal description in a condemnation petition. Id. ¶ 10,
[d]oes not mean meticulous accuracy, but substantial accuracy — that certainty by means of which a reasonably competent person could take the instrument and therefrom, aided by such inquiries as it suggests, locate the identical property ... the certainty required in the description of the land in a condemnation proceeding “is of the same nature as that required in conveyances of land, so that a surveyor could go upon the land and mark out the land designated.”
Id. ¶ 12,
[¶ 31.] Thus, the trial court had jurisdiction to adjudicate the condemnation action over the 206 acres as it was adequately described in County’s petition. However, the trial court did not have jurisdiction to maintain an action over any portion of the 309 acres as that parcel was not described in County’s petition and Landowners did not submit sufficient evidence to support a regulatory severance taking.
[¶ 32.] In conclusion, Owners have received just compensation for the 206 acres taken by County. All that the trial court’s order precludes is a claim by Owners for “possible future airspace intrusion” for which no plans, airport authority resolu
[¶ 88.] Affirmed as modified.
Notes
. County also subsequently filed a motion in limine seeking an order precluding the above-mentioned evidence from being admitted at trial.
. SDCL 50-13-4 provides:
Flight in aircraft over the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.
. SDCL 50-13-11 provides:
There is hereby established and exists pursuant to acts of Congress (49 USC §§ 1301— 1302, 1303-1304, and 1347-1348(a)(c)) and confirmed by this enactment a public highway for air commerce in the navigable air space over all the land in South Dakota wherein the public right of freedom of air navigation and transit by aircraft is herein established, defined and confirmed.
However, SDCL 50-13-12 provides:
The air space established by § 50-13-11 consists of the space above an altitude of one thousand feet above the highest obstacle within a horizontal radius of two thousand feet from the aircraft to the ground when over congested areas such as municipalities or settlements, or an open air space assembly of persons, and over other than a congested area the air space above an altitude of five hundred feet above the surface except over open water or sparsely populated areas, which in such event the freedom of transit of an aircraft is no closer than five hundred feet over any person, vessel, vehicle, or structure.
. This would not preclude jurisdiction over a claim by a landowner for severance damages in a proper case, or for a claim of inverse condemnation because such a claim is initiated by the landowner and not the condem-nor and is jurisdictionally self-executing under Article VI, section 13 of the South Dakota Constitution. See Hurley II,
Concurrence Opinion
(dissenting in part and concurring in part).
[¶ 36.] I concur with the majority opinion on issue two that res judicata does not bar the Owners from future condemnation proceedings for damages to the 309 acres. I disagree that the summary judgment order should be affirmed. If anything, the County’s motion for summary judgment should have been denied because the issue of damages to the 309 acres was not ripe for determination. The majority opinion concludes that the trial court did not have jurisdiction to adjudicate condemnation over the 309 acres not described in the petition. Supra ¶ 32. I agree. But under this same analysis, the trial court did not have jurisdiction to enter summary judgment on that issue.
[¶ 37.] The issue of damages to the 309 acres was not ripe because of the County’s handling of the case, not because of some failure by the Owners. The County only defined its taking to include the 206 acres. If the County contemplated aircraft invading the airspace over the remaining property, the County certainly did not include that airspace in the declaration of taking. Likewise, no zoning ordinances or airport approach plans were adopted. Nevertheless, the summary judgment order against the Owners still stands under the majority opinion’s holding. Because the trial court lacked jurisdiction and the issue was not ripe, I would reverse and vacate the summary judgment order.