LEWIS & CLARK RURAL WATER SYSTEM, INC., a South Dakota Non-Profit Corporation v. LOREN SEEBA; KENNETH F. SEEBA and LORETTA M. SEEBA; IRVING GEDSTAD and HENRIETTA GEDSTAD; and THE UNITED STATES OF AMERICA; LEWIS & CLARK RURAL WATER SYSTEM, INC., a South Dakota Non-Profit Corporation v. GARY D. BUSE and DEE ANNA BUSE, HOME FEDERAL BANK; LINCOLN COUNTY, SOUTH DAKOTA; SOUTH LINCOLN COUNTY RURAL WATER SYSTEM, INC.; and EVELYN BUSE and WILMER BUSE
#23737, #23738
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2006 SD 7, OPINION FILED 1/20/06
HONORABLE BRADLEY G. ZELL, Judge
ARGUED OCTOBER 4, 2005
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APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA
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MARK V. MEIERHENRY, PATRICK J. GLOVER of Danforth & Meierhenry, LLP, Sioux Falls, South Dakota Attorneys for appellees.
[¶1.] Justice STEVEN L. ZINTER delivers the opinion of the Court on:
- Issue 1, which holds that the 250 foot setback restriction in
SDCL 46-8-1.2 applies to routes acquired under the provisions ofSDCL ch 46-8 , including routes for water pipelines; - Issue 2(a), which holds that the width of the route is measured from the outside dimension of the pipeline rather than the exterior boundary of the easement;
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Issue 2(b), which holds that “other buildings on the premises” include grain bins and sheds located on the same farmstead as the dwelling house; - Issue 2(c), which holds that the route proposed by Lewis & Clark may not cross below, on, or through any existing noncommercial orchard or garden;
- Issue 2(d)(i), which holds that a landowner, who has no dwelling, building, orchard or garden within the prohibited proximity of the pipeline, lacks standing to assert a condition of
SDCL 46-8-1.2 ; - Issue 2(e), which holds that a landowner, who has actual knowledge of the intended pipeline route, cannot construct a dwelling house, building, or noncommercial orchard or garden to block or alter construction of the intended pipeline; and
- Issue 2(f), which holds that
SDCL 46-8-1.1 only governs general pipeline parameters not addressed inSDCL 46-8-1.2 , and that the circuit court may not modify the specific conditions inSDCL 46-8-1.2 throughSDCL 46-8-1.1 .
[¶2.] Justice RICHARD W. SABERS delivers the opinion of the Court on:
- Issue 2(d)(ii), which holds that
SDCL 46-8-1.2 does not give a landowner the right to object to a pipeline located on someone else’s property.
[¶3.] ZINTER, Justice, writing the opinion on Issues 1, 2(a), (b), (c), (d)(i), (e) and (f).
[¶4.] Lewis & Clark Rural Water System, Inc. appeals from the circuit court’s interpretation of a statute that regulates the use of eminent domain. Lewis & Clark contends that the statute does not apply to its underground water pipeline project. If the statute does apply, Lewis & Clark challenges the circuit court’s interpretation of the statute’s restrictions as the pipeline passes dwellings, buildings, and noncommercial orchards and gardens. We affirm the circuit court in part, reverse in part, and remand.
Facts and Procedural History
[¶5.] Lewis & Clark was created by an act of Congress to plan, develop, construct, and operate a water pipeline system. The system will pump water from aquifers located near the Missouri River and transport the water to municipalities and rural water systems. It will provide potable water for approximately 200,000 people in eastern South Dakota, northwest Iowa, and southwest Minnesota. The water will be distributed through approximately 337 miles of pipeline across an area of 5,000 square miles, crossing approximately 700-850 parcels of property. Approximately 189 miles of pipeline and 350-475 of those parcels are located in South Dakota.
[¶6.] In order to construct and maintain the pipeline, Lewis & Clark sought seventy foot permanent easements and eighty foot temporary construction easements from landowners along the proposed pipeline route.1 Because some easements could not be negotiated, Lewis & Clark filed condemnation actions invoking the right of eminent domain for waterworks under
Any person may exercise the right of eminent domain in the manner provided by law to acquire as a public use any property or other rights necessary for application of water to beneficial uses or to enlarge an existing structure for conveyance of water for use in common with an existing or former owner. Application
of water to beneficial use is a public use, in the public interest and of benefit to the public.
Landowners, however, argued that Lewis & Clark was not entitled to use eminent domain because the pipeline route did not meet a 250 foot setback restriction in
No routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house or other buildings on the premises or across any noncommercial orchard or garden without written consent of the owner. This section does not apply to works located in public rights-of-way.
[¶7.] These appeals involve three separate properties. The first property, parcel 170, is owned by Loren Seeba, et al. (Seeba). The pipeline route proposes to run on the Seeba property for a certain distance, cross a public road to property not owned by Seeba, and then re-cross the road to again run on the Seeba property. Seeba objected to the proposed location of the pipeline at the point where it would be across the road on another’s property but approximately 140 feet from Seeba’s dwelling. Seeba contended that eminent domain could not be utilized because the pipeline route was within the 250 foot restriction in
[¶8.] The second property, parcel 180, is owned by Gary Buse, et al. (Buse). The pipeline proposes to run across the Buse property and will come within 250 feet of two types of buildings that are on his property. The first type is a group of three grain bins. The pipeline is proposed to be located approximately twenty-five feet from the grain bins, and a portion of one of the bins is within the permanent easement. The second type of building is a machine shed that was constructed after the scope of the project and intended route became public. The pipeline is proposed to be located approximately seventy feet from this shed and a portion of it is within the permanent easement.
[¶9.] Buse asserted that the pipeline route violated the 250 foot setback restriction with respect to both types of buildings. Lewis & Clark responded that these buildings did not violate the setback restriction because they were not “other buildings on the premises” within the meaning of
[¶10.] The third property, parcel 179, is owned by Wilmer Buse, et al. (W. Buse). The pipeline was not proposed to be located within 250 feet of any dwelling house, other building, or noncommercial orchard or garden on his property. However, W. Buse objected to the route’s location at a point where it would be within 250 feet of buildings on adjacent property, parcel 178, owned by Kevin and Cindy Enterprises. W. Buse objected even though the Enterprises consented to the pipeline route and gave an easement on their property. Lewis & Clark contended that W. Buse had no standing to object because the route was neither on property owned by W. Buse nor within 250 feet of any building owned by W. Buse.
[¶11.] All parties moved for summary judgment, and the circuit court generally ruled in favor of the landowners. Lewis & Clark appeals raising the following issues:
- Do the
SDCL 46-8-1.2 restrictions, including the 250 foot setback, apply to the Lewis & Clark pipeline project? -
If the SDCL 46-8-1.2 restrictions apply to the project:- Does the width of the “route” include both the width of the pipeline and the seventy foot permanent easement?
- Does the 250 foot restriction apply to “other buildings on the premises” that are not dwellings, but are used by the owner or occupant in connection with the dwelling?
- Does the statute prohibit the route from physically crossing a noncommercial orchard or garden?
- Does a landowner have standing to object to the condemnation when:
- the landowner (W. Buse) has no dwelling, building, orchard or garden within 250 feet of the route?
- the landowner (Seeba) has a “dwelling house or other building on the premises” located within 250 feet of the pipeline route, but the pipeline is located on the land of a neighbor?
- Does a landowner, who has actual knowledge of the intended route, have the right to subsequently construct a dwelling house, building, or noncommercial orchard or garden and invoke the statutory restrictions?
- Does the circuit court have authority (under
SDCL 46-8-1.1 ) to modify the 250 foot setback restriction inSDCL 46-8-1.2 if the court finds that the modification will do the “least possible injury to private property, consistent with sound engineering principles and with economic feasibility“?
Standard of Review
[¶12.] These appeals involve the interpretation of eminent domain statutes. “Statutory interpretation and application are questions of law.” Block v. Drake, 2004 SD 72, ¶8, 681 NW2d 460, 463 (citing Steinberg v. State Dep’t of Military Affairs, 2000 SD 36, ¶6, 607 NW2d 596, 599). This Court reviews questions of law under the de novo standard with no deference afforded the circuit court’s decision. Id. (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶9, 607 NW2d 22, 25). In performing that review, we interpret statutes “to discover the true intent of the legislature in enacting laws, which is ascertained primarily from the language employed in the statute.” Sanford v. Sanford, 2005 SD 34, ¶13, 694 NW2d 283, 287; State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶6, 686 NW2d 651, 653. This Court gives “words their plain meaning and effect, and read[s] statutes as a whole, as well as enactments relating to the same subject.” Id. (citing State v. I-90 Truck Haven Serv., Inc., 2003 SD 51, ¶3, 662 NW2d 288, 290). The intent of a statute is determined from what the Legislature said, rather than what the courts think it should have said. Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 NW2d 600, 611 (citations omitted).
Analysis and Decision
1. Do the Restrictions in SDCL 46-8-1.2 Apply to Water Pipelines?
[¶13.] Lewis & Clark argues that
[¶14.] We first observe that the text of
[¶15.] This conclusion is also supported by the text of
The object of the rule of [in] pari materia is to ascertain and carry into effect the intention of the legislature. It proceeds upon the supposition that the several statutes [are] governed by one spirit and policy, and [are] intended to be consistent and harmonious in their several parts and provisions.
MB v. Konenkamp, 523 NW2d 94, 97-98 (SD 1994) (citing State v. Chaney, 261 NW2d 674, 676 (SD 1978)). Statutes must be construed in pari materia when “they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.” Goetz v. State, 2001 SD 138, ¶26, 636 NW2d 675, 683 (citing 2B Sutherland, Statutory Construction, § 51:03 (6th ed 2000)).
[¶16.] Here,
[¶17.] The history of these provisions also supports this conclusion. “It is … an established principle of statutory construction that, where the wording of an act is changed by amendment, it is evidential of an intent that the words shall have a different construction.” South Dakota Subsequent Injury Fund v. Federated Mut. Ins., 2000 SD 11, ¶18, 605 NW2d 166, 170 (citing South Dakota Subsequent Injury Fund v. Casualty, 1999 SD 2, ¶18, 589 NW2d 206, 209-10) (quoting In re Dwyer, 49 SD 350, 207 NW 210, 212 (1926)). Here, amendments to
[¶18.] The first version of the setback restriction found in
[¶19.] Lewis & Clark, however, argues that the removal of the limiting term “waterways” was mere inadvertence, and therefore, the Legislature did not intend to broaden the statutory restrictions. Lewis & Clark’s argument presumes that the 1983 Legislature did not intend a change when it amended the language of
[¶20.] Any doubt about legislative inadvertence is conclusively rebutted by other provisions of the 1983 Act. As previously noted, 1983 SD Sess Laws ch 314, section 134 re-worded today’s version of the setback requirement found in
2. Compliance with the Setback Restriction.
[¶21.] Landowners have not suggested that Lewis & Clark violated taking conditions
2(a) How is the Setback Measured—What is the Width of the Route?
[¶22.]
[¶23.] Because “route” is not defined we must determine and give effect to the intention of the Legislature. Federated Mut. Ins., 2000 SD 11, ¶18, 605 NW2d at 170. In making that determination, we consider the nature and purpose of the setback restriction. In this regard, it is notable that textually and historically the statute has imposed the setback from the actual waterwork rather than any associated easement. For example, the earliest version of this statute referred to a setback from the routes for the open “waterways.” See 1890 SD Sess Laws ch 103, § 2. This reference to a setback from a waterwork of some type has continued to this day. The latest related amendments suggest that by 1983, the Legislature was also concerned about “structure[s]” as well as “pipelines, canals, ditches or other water conduits for the conveyance of water.” See
[¶24.] Thus, it is evident that the purpose of the setback restriction was to protect the property owner from the dangers, inconvenience, and loss of property use associated with an actual waterwork. Considering the danger and inconvenience posed by such open waterworks and structures, the 1890 Legislature would have contemplated a setback measurement from the bank of the waterway. There is also nothing to suggest that later Legislatures would have contemplated something different. However, the dangers and inconveniences that arise from waterworks do not arise from the easements that may be incidentally and occasionally used to maintain the waterwork. Therefore, we conclude that the setback restriction was intended to be measured from the waterwork rather than the easement: in this case, the outside dimension of the pipeline.6
[¶25.] In examining Buses’ grain bins and shed, the circuit court concluded that “other buildings on the premises” meant “any structures which are real property that are used by the owner or occupant of that premises.” Thus, under the circuit court’s interpretation “other buildings on the premises” included buildings in and around the farmstead. Lewis & Clark argues this interpretation is too broad.
Lewis & Clark points out that the term “building” is defined in
[¶26.] “Statutes are construed in pari materia when they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.” Goetz, 2001 SD 138, ¶26, 636 NW2d at 683 (citing 2B Sutherland, Statutory Construction at § 51:03). However, “[c]haracterization of the object or purpose [of the statute] is more important than characterization of the subject matter in determining whether different statutes are closely related enough to justify interpreting one in light of another.” Id. Thus, “the adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will normally not justify applying the rule.” 2B Sutherland, Statutory Construction at § 51:03.
[¶27.] Here, the statutes that Lewis & Clark seeks to construe in pari materia deal with different purposes and objects. SDCL Title 36 deals with the regulation of professions and occupations, whereas SDCL Title 46 deals with water rights and eminent domain. Because the purposes and objects of these statutes are so different, we cannot construe them in pari materia to conclude that “other buildings” must be occupied structures.
[¶28.] Instead, we give the words of
[¶29.] In this case, Buses’ grain bins and shed are located on the same farmstead as the dwelling house. In addition, the Buses use these buildings for farming purposes associated with the dwelling. Therefore, the grain bins and machine shed are “other buildings on the premises” to which the 250 foot setback applies.7
2(c) Crossing a Noncommercial Orchard or Garden.
[¶30.] The circuit court held that “the statutory phrase ‘across any non-commercial orchard or garden’ should be given its literal meaning, which is the route ... may not physically cross a non-commercial orchard or garden.” Lewis & Clark argues that this application of
[¶31.] This concern is misplaced insofar as it assumes the pipeline may not be near an orchard or garden. We note that unlike the restriction for dwellings and other buildings, the restriction for orchards and gardens is not the 250 foot setback. Instead, the latter restriction only prohibits a pipeline from crossing an orchard or garden.
[¶32.] However, the facts of these cases do not involve the crossing of a noncommercial orchard or garden. Therefore, the Landowners correctly point out that this issue may not be ripe for adjudication. They suggest that Lewis & Clark is asking for an advisory opinion on the outcome of a hypothetical case.
[¶33.] Generally, “[c]ourts should decide only mature controversies, eschewing advisory opinions and conjectural questions.” Meinders v. Weber, 2000 SD 2, ¶39, 604 NW2d 248, 263 (citing Kneip v. Herseth, 87 SD 642, 214 NW2d 93, 96 (1974)). Even if a court has jurisdiction to decide the question, “it should decline to do so if the issue is so premature that the court would have to speculate as to the presence of a real injury.” Boever v. South Dakota Board of Accountancy, 526 NW2d 747, 750 (SD 1995) (citing Meadows of West Memphis v. City of West Memphis, 800 F2d 212, 214 (8th Cir 1986)).
[¶34.] However, these rules are not absolute. “Ripeness involves the timing of judicial review and the principle that ‘[j]udicial machinery should be conserved for problems which are real and present or imminent.’” Id. (citing Gottschalk v. Hegg, 228 NW2d 640, 643-44 (SD 1975) (quoting Davis, Administrative Law Treatise, § 21.01)). “A matter is sufficiently ripe if the facts indicate imminent conflict.” Id. (citing Kneip, 214 NW2d at 99).
[¶35.] In this case there is an imminent conflict because record evidence indicates that some landowners intend to plant an orchard or garden to obstruct the pipeline. One opponent of the pipeline created a website urging landowners who are opposed to the pipeline to plant gardens. An excerpt from the website, contained in the record, states “[b]y the way, Gurneys, [a garden and seed company], still exists.... If you are thinking about an orchard or garden, I’ve always had good luck with
[¶36.] Here, the plain, ordinary, and usual meaning of the phrase “across any noncommercial orchard or garden” is clear. This language leaves no room for interpretation or construction other than expressing what the Legislature clearly said. We agree with the circuit court and hold that the route proposed by Lewis & Clark may not physically cross any existing noncommercial orchard or garden. This includes a crossing below, on, or through the orchard or garden because the easement sought takes property “below, in, on, through and under the described parcel of land.” Thus, this easement would contemplate a taking in violation of
2(d) Landowners Standing to Assert the Setback Restriction.
[¶37.] Two issues of standing have been presented: does a landowner have standing to object to the taking when: (i) the pipeline will cross the landowner’s real property, but the landowner (W. Buse) has no dwelling or other building within 250 feet of the pipeline; and, (ii) a landowner (Seeba) has a dwelling or other building located within 250 feet of the pipeline, but the pipeline is located on the land of a neighbor. The circuit court concluded that standing existed in both situations.
[¶38.] Whether a party has standing is a legal conclusion, which we review under the de novo standard. H&W Contracting, L.L.C. v. City of Watertown, 2001 SD 107, ¶9, 633 NW2d 167, 171. In general, standing is established if a party shows “that he [or she] personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Id. (citing Agar School Dist. No. 58-1 v. McGee, 527 NW2d 282, 284 (SD 1995) (quoting Parsons v. South Dakota Lottery Comm’n, 504 NW2d 593, 595 (SD 1993))). Therefore, to have standing these parties must show some actual or threatened injury that is caused by Lewis & Clark’s proposed pipeline route.
(i) Standing of a Landowner (W. Buse) that has no Dwelling, Building, Orchard or Garden near the Pipeline.
[¶39.] Lewis & Clark contends that W. Buse does not have standing to object to the placement of the pipeline because he owns no dwelling house or other buildings within 250 feet of the pipeline. The proposed pipeline runs across the W.
Buse property and then onto the adjacent property of Kevin and Cindy Enterprises. While the pipeline is on the W. Buse property, it does not come within 250 feet of any dwelling or other building owned by W. Buse. It is only when the pipeline is on the Enterprises’ property that it comes within 250 feet of a building. But at that point, the Enterprises, not W. Buse, own the land and the buildings. And, the Enterprises have consented to an easement for the pipeline to cross their property. Therefore, W. Buse is attempting to assert the statutory setback right that only the Enterprises possess. Under these circumstances, W. Buse is not being threatened with a violation of the statute or any actual or threatened injury as a result of Lewis & Clark‘s crossing of the Enterprises’ property. For that reason, W. Buse lacks standing to assert a violation of the requirements of
[¶40.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and VON WALD, Circuit Judge, concur.
[¶41.] SABERS, Justice, writing for the majority on Issue 2(d)(ii).
(ii) Standing of a Landowner (Seeba) who has a Dwelling House or other Building Located Within 250 feet of the Pipeline, but at that Point, the Pipeline is on the Land of a Neighbor.
[¶42.] The owner of a dwelling house or other building located within 250 feet of the proposed pipeline route has no legal claim to object when the pipeline is located on the land of a neighbor.
[¶43.]
No routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house or other buildings on the premises or across any noncommercial orchard or garden without written consent of the owner. This section does not apply to works located in public rights-of-way.
[¶44.] Eminent domain is the right to take private property for a public use without the landowner‘s consent. 1 Nichols on Eminent Domain, §1.11 (3rd ed 1997); 29A CJS 2d Eminent Domain § 2 (1992). Seeba is a stranger to any eminent domain proceeding against his neighbor‘s property. However, under his interpretation of
[¶45.] That is not to say that Seeba could never have a claim against the pipeline company, such as for negligence in the event the pipeline bursts and damages his property. However, in the absence of
[¶46.] KONENKAMP, Justice, and VON WALD, Circuit Judge, concur.
[¶47.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent.
[¶48.] ZINTER, Justice (dissenting).
[¶49.] In order to establish standing, Seeba must demonstrate some actual or threatened injury due to Lewis & Clark‘s proposed route of the pipeline. See H & W Contracting, 2001 SD 107, ¶9, 633 NW2d at 171. To analyze this question, it must be remembered that in order to utilize eminent domain, Lewis & Clark must show that its proposed taking complies with all statutory conditions on the exercise of that right. Illinois Cent. R. Co. v. East Sioux Falls Quarry Co., 33 SD 63, 144 NW 724, 726 (1913). Although
[I]t devolves upon a party seeking, through delegated power, to exercise the right of eminent domain to show: (1) That such party is within the class to whom the power has been delegated. (2) That all conditions precedent have been complied with. (3) That the purpose for which the property is to be taken is one of the purposes enumerated in the statute. (4) That the property is to be taken for a public use. (5) That the particular property sought to be taken is necessary to the accomplishment of the public purpose intended.
Illinois Cent. R. Co., 144 NW at 726 (emphasis original). And, in determining whether a statutory condition has been satisfied, this Court has further required strict compliance.
The power of eminent domain being a power which is possessed by [an entity] solely by being delegated to such [entity] by the sovereign power of the state, its existence depends upon a strict compliance with each and every condition prescribed by such sovereign power. (citations omitted).
Id.; Ehlers v. Jones, 81 SD 351, 135 NW2d 22, 22 (1965) (stating that “[p]roceedings to take private property by condemnation are special in character and must be conducted in strict accordance with governing statutes”). We finally note that in determining whether a statutory condition has been satisfied, we look to the purpose of the statute. Illinois Cent. R. Co. 144 NW at 726.
[¶51.] As previously noted, the purpose of
[¶52.] Although the Court correctly observes that the proposed route of the pipeline is physically located on neighboring property, there can be no question that Lewis & Clark‘s proposed route will subject Seeba to a threatened injury because the pipeline will be approximately 140 feet from his dwelling. Furthermore,
[¶53.] The Court finds no standing because 1) Seeba would be a stranger to the ultimate condemnation proceeding; and 2) the statute grants no right to “dictate” or “control” the location of a pipeline easement on another‘s property. Supra ¶¶44, 45. However, even if true, these propositions are irrelevant because
[¶54.] Because Lewis and Clark has not established compliance with the 250 foot setback condition for the exercise of eminent domain under
[¶55.] GILBERTSON, Chief Justice, joins this dissent.
[¶56.] ZINTER, Justice, writing the opinion on Issues 2(e) and 2(f).
2(e) May a Landowner, Who has Actual Knowledge of the Intended Pipeline Route, Construct a Dwelling House, other Building, or Noncommercial Orchard or Garden to Block or Alter Construction of the Intended Pipeline?
[¶57.] The circuit court concluded that:
A landowner may construct a dwelling house or other building on the premises, or plant a noncommercial garden or orchard, anywhere the owner desires at any time before a condemnation action is completed, and invoke the restrictions contained in
SDCL 46-8-1.2 , notwithstanding such owner‘s actual knowledge of the intended pipeline route, or the filing of a public notice or condemnation case declaring the intended pipeline route.
Lewis & Clark contends that the circuit court erred in its ruling on this issue. We agree with Lewis & Clark.
[¶58.] The rules of property ownership at the time of taking are relatively well-established in South Dakota.
[m]unicipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways, or improvements, which compensation shall be paid or secured before such taking, injury or destruction.
(emphasis added). This right of compensation does not become vested until the date of the takings decision or the date on which the takings hearing is waived.
[¶59.] The question here is whether a landowner may, before possession is transferred, obstruct a pipeline route by intentionally constructing buildings or planting orchards or gardens to invoke collateral setback restrictions. Although the parties have not directed this Court to any authority addressing this issue, we note a helpful analogy in the law that prohibits a landowner from benefiting from rising land
[¶60.] This scope of the project rule prohibits a landowner from asserting a claim for increased compensation as a result of increasing land values after the taking has been announced. This Court follows the test set forth in United States v. Reynolds, 397 US 14, 90 SCt 803, 25 LEd2d 12 (1970), stating that: “[I]f the ‘lands were probably within the scope of the project from the time the Government was committed to it’ no enhancement in value attributable to the project is to be considered in awarding compensation.” City of Sioux Falls v. Johnson, 1999 SD 16, ¶42, 588 NW2d 904, 912-13 (citing Reynolds, 397 US at 21, 90 SCt at 807, 25 LEd2d at 18 (quoting United States v. Miller, 317 US 369, 377, 63 SCt 276, 281, 87 LEd 336, 344 (1943))). Under this rule, the land taken need not “be actually specified in the original plans for the project.” Id. All that must be shown is “that during the course of the planning or original construction it becomes evident that the land so situated would probably be needed for public use.” Id. In those situations, landowners may not seek the collateral benefit of enhanced land values arising from the announced taking. Similarly, we believe that if land is within the scope of a noticed taking, landowners should not be able to block or alter the route by constructing a dwelling house, other building, orchard or garden and thereafter claim entitlement to the collateral setback restrictions in
[¶61.] Here, Lewis & Clark committed to the scope of the project and publicly began negotiations to obtain easements along the intended route. Therefore, just as landowners are not entitled to benefit from any advanced value attributable to the announced scope of this project, they are also not entitled to benefit from the setback limitations if they construct a building or plant an orchard or garden to obstruct or alter the announced route. Although Landowners need not surrender possession until the taking, and although they may construct buildings or plant orchards or gardens at any time prior to the taking, Landowners may not thereafter benefit from the collateral benefits of the setback limitation if it was evident that the land would be needed for the project.9
2(f) Does a Circuit Court have Authority to Modify the Setback Restrictions in
[¶62.] Lewis & Clark contends that the circuit court erred when it concluded that it could judicially modify the restrictions of
[¶63.] The language of
[¶64.] We also note that although
[¶65.] Considering these provisions together to make them harmonious and workable, we conclude that the circuit court may not judicially modify the specific limitations of
[¶66.] Affirmed in part and reversed in part and remanded.
[¶67.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and VON WALD, Circuit Judge, concur.
[¶68.] VON WALD, Circuit Judge, sitting for MEIERHENRY, Justice, disqualified.