Cоnrad D. RUPERT and Reone A. Rupert, Plaintiffs and Appellees, v. CITY OF RAPID CITY, South Dakota, Defendant and Appellant.
Nos. 26252, 26265
Supreme Court of South Dakota
Argued Nov. 6, 2012. Decided Jan. 30, 2013.
2013 S.D. 13 | 827 N.W.2d 55
Timothy J. Becker of Banks, Johnson, Kappelman & Becker, PLLC, Rapid City, South Dakota, Attorneys for defendant and appellant.
GILBERTSON, Chief Justice.
[¶1.] Conrad and Reone Rupert (the Ruperts) owned land in Rapid City, South Dakota. During the winter, the City of Rapid City (the City) applied a deicer to the streets adjacent to the Ruperts’ property. In 2009, the Ruperts sued the City, claiming that the deicer ran onto their property and destroyed several pine trees. The trial court granted the Ruperts’ motion for summary judgment on their inverse condemnation claim, and proceeded to trial to have a jury determine the amount of “just compensation” the Ruperts were entitled to. The jury awarded the Ruperts $126,530 to compensate them for the damage to their property. The City appeals several of the trial court‘s decisions. In addition, the Ruperts filed a notice of review. We affirm in part, reverse in part, and remand.
FACTS
[¶2.] On April 2, 2009, the Ruperts filed a complaint against the City. The Ruperts alleged that the deicer the City applied to the streets adjacent to their property during the winter had run off one
[¶3.] On September 10, 2009, the City filed a motion for partial summary judgment as to the Ruperts’ negligence and trespass claims. The City asserted it was entitled to summary judgment on these claims based on sovereign immunity.1 The trial court denied the City‘s partial motion for summary judgment on January 10, 2010. The City filed a second motion for summary judgment on January 5, 2011, claiming that it was entitled to judgment as a matter of law on all three of the Ruperts’ causes of action. On February 22, 2011, the trial court granted the City‘s second motion for summary judgment on the Ruperts’ negligence and trespass claims, and denied the City‘s second motion for summary judgment on the Ruperts’ inverse condemnation claim.
[¶4.] On September 20, 2011, the trial court held a hearing to address various motions filed by the parties. One of the more significant issues the trial court considered was the measure of damages that would be used for the Ruperts’ inverse condemnation claim. The City argued that the proper measure of damages for inverse condemnation was the difference between the fair market value of the Ruperts’ property before and after it was damaged. Alternatively, the Ruperts argued that the proper measure of damages in this case was the clean-up and replacement costs of the trees along with damages attributable to loss of shade, ornamental value, aesthetic value, and loss of enjoyment of the trees. Ultimately, the trial court rejected the City‘s arguments and concluded that “just compensation” would be calculated in accordance with the measure of damages method proposed by the Ruperts. Based on this ruling, the trial court determined that all evidence regarding the fair market value of the Ruperts’ property wоuld be excluded from trial.
[¶5.] On September 26, 2011, the Ruperts moved for partial summary judgment on their inverse condemnation claim. The trial court granted the Ruperts’ motion for partial summary judgment on October 17, 2011. The trial court issued findings of fact and conclusions of law along with its order granting summary judgment on the Ruperts’ inverse condemnation claim. The trial court found that the Ruperts established each element of inverse condemnation, and it made specific findings regarding some of those elements.
[¶6.] Upon granting summary judgment in favor of the Ruperts on their
ANALYSIS AND DECISION
[¶7.] 1. Whether the trial court erred in granting summary judgment in favor of the Ruperts on their inverse condemnation claim based on its determination that the Ruperts submitted sufficient evidence to prove that the injury to their property was “a peculiar injury and not of a kind suffered by the general public as a whole” and that the City engaged in “direct and substantial action or abuse.”
[¶8.] “This Court reviews a grant of summary judgment ‘to detеrmine whether the moving party has demonstrated the absence of any genuine issue of material fact and entitlement to judgment on the merits as a matter of law.‘” Hall v. S.D. Dep‘t of Transp., 2011 S.D. 70, ¶ 9, 806 N.W.2d 217, 221. A trial court‘s grant of summary judgment will be affirmed “if there is any legal basis to support its ruling.” Krier v. Dell Rapids Twp., 2006 S.D. 10, ¶ 12, 709 N.W.2d 841, 845. Further, an alleged violation of a constitutional right is “an issue of law to be reviewed under the de novo standard of review.” Benson v. State, 2006 S.D. 8, ¶ 39, 710 N.W.2d 131, 145.
[¶9.] The United States Constitution provides that private property shall not “be taken for public use, without just compensation.”
[¶10.] In our seminal case of Searle v. City of Lead, we held that an action by a landowner for inverse condemnation4 is maintainable where a governmental entity causes an invasion of the land by “water, earth, sand, or other matter or artificial structures placed upon it, sо as effectually to destroy or impair its usefulness [,] ” but that it is not required “that the damage shall be caused by a trespass or an actual physical invasion of the owner‘s real estate[.]” 10 S.D. 312, 73 N.W. 101, 103, 104 (1897). However, in Krier v. Dell Rapids Township, this Court recognized that in order for a plaintiff to recover under the consequential damages3 rule, he or she must prove that “the consequential injury is peculiar to [their] land and not of a kind suffered by the public as a whole.” 2006 S.D. 10, ¶ 26, 709 N.W.2d at 847-48 (alteration in original) (quoting Bloom, 77 S.D. at 461, 93 N.W.2d at 577). Further, the plaintiff‘s injury “must be different in kind and not merely in degree from that experienced by the general public.” Id. ¶ 26, 709 N.W.2d at 848 (quoting Hurley v. State, 82 S.D. 156, 163, 143 N.W.2d 722, 726 (1966)). Nevertheless, there is “no magic formula [that] enables a court to judge, in every case, whether a given government interference with property is a taking.” Ark. Game & Fish Comm‘n v. United States, — U.S. —, 133 S.Ct. 511, 518, 184 L.Ed.2d 417 (2012). Instead, the viability of a takings claim is dependent upon “situation-specific factual inquiries.” Id.
[¶11.] The City argues that the trial court erred in granting summary judgment in favor of the Ruperts on their inverse condemnation сlaim because the Ruperts failed to place sufficient evidence in the record to show that they could prove each element of their claim. Specifically, the City argues that the Ruperts failed to establish two of the elements of inverse condemnation. First, the City argues that the Ruperts could not show that the City engaged in “direct and substantial action or abuse.” The City bases its assertion that the Ruperts are required to prove the City engaged in “direct and substantial
[¶12.] In Mills, the plaintiff owned land that was adjacent to the City of Brookings’ airport. 412 N.W.2d at 498. The plaintiff intended to dеvelop the land, but in 1977, he learned that the City of Brookings had plans to expand the airport, and that the City of Brookings intended to acquire the plaintiff‘s property as part of the expansion. Id. As a result, the plaintiff did not develop the property as he had intended. Id. In 1981, the City of Brookings initiated a formal condemnation proceeding to acquire the plaintiff‘s land. Id. at 499. The plaintiff sued the City of Brookings, alleging a “de facto taking” of his property because the City of Brookings had effectively deprived the plaintiff of the use of his property for the four and one-half year period prior to the formal condemnation proceeding. Id.
[¶13.] In Mills, this Court looked to the decisions of Michigan and Pennsylvania courts to determine the elements of a “de facto taking” cause of action, because the concept of a “de facto taking” was an issue of first impression in South Dakota. Id. at 500. In addition to proving “direct and substantial action by the government,” this Court determined the plaintiff was also required to prove other elements, such as that “a formal condemnation [proceeding] was inevitable” or, if condemnation was not inevitable, that exceptional circumstances existed “which deprived [the plaintiff] of the beneficial use and enjoyment of his property.” Id. at 501. Further, the cases this Court analyzed in determining that proof of “direct and substantial action” by the governmental entity was required were “de facto takings” cases in which the property owners were aware that the governmental entity intended to take their property but condemnation of their property was delayed. Id. at 500-01. Examples of “direct and substantial action by the government” in these cases included the governmental entity sending letters to tenants and occupants of properties encouraging them to move out, reducing city garbage, police, and street repair and cleaning services, deliberately filing a lis pendens, publishing threats of condemnation, refusing to issue building permits for improvements, engaging in intense building violation inspections, etc. Id.
[¶14.] A review of Mills establishes that the statement this Court made about requiring proof of a “direct and substantial action by the government” in inverse condemnation cases was limited to causes of action for a “de facto taking” where the governmental entity delayed condemning the property. “In this regard, we recall Chief Justice Marshall‘s sage observation that ‘general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not tо control the judgment in a subsequent suit when the very point is presented for decision.‘” Ark. Game & Fish Comm‘n, — U.S. —, 133 S.Ct. at 520, 184 L.Ed.2d 1417 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821)). This case does not involve a “de facto taking” claim by a landowner stemming from the govern-
[¶15.] Regardless, the City‘s use of the deicer, which killed 42 trees on the Ruperts’ property, constitutes a “direct and substantial action by the government.” The damage came from nowhere else. We have recognized that destruction of trees by a governmental entity is a compensable loss to a landowner. See State Highway Comm‘n v. Bredvik, 268 N.W.2d 144 (S.D. 1978); Parsons v. City of Sioux Falls, 65 S.D. 145, 272 N.W. 288 (1937). Thus, even if proof of “direct and substantial action by the government” were an element of the Ruperts’ claim, it was established.
[¶16.] Next, the City argues that the Ruperts failed to prove that the injury to their property “was a peculiar injury and not of a kind suffered by the general public as a whole.”6 The record demonstrates that the evidence was sufficient to support the trial court‘s determination that the Ruperts had submitted enough evidence to prove that the damage to their property was unique. For example, the undisputed evidence established that the City‘s use of the deicer killed 42 mature pine trees on the Ruperts’ property. Additionally, the Site Evaluation Report prepared by Dr. Cregg (an expert who visited and evaluated the Ruperts’ property) indicated that damage to the pine trees was confined to the Ruperts’ property and that similar-aged trees on the opposite side of the road were in good condition. Further, the report indicated that the soil and foliar levels of sodium were significantly higher on the Ruperts’ property than in surrounding areas (which was the primary cause of the tree death).
[¶17.] Also, the trial court noted that only two other complaints regarding property damage caused by the City‘s use of the deicer had been filed in the past 10 years, and those claims were unsubstantiated. Finally, the City failed to provide any evidence to establish that the public as a whole suffered the same kind of property damage as the Ruperts. Specifically, when the trial court asked the City whether it had even a “shred of evidence” to support its claim that the general public had suffered similar damages as a result of the City‘s use of the deicer, the City‘s response was “[n]o....” Therefore, the trial court did not err in determining the Ruperts submitted sufficient evidence to prove that the damage to their property was peculiar and that the damage to their property was different in kind rather than degree. As a result, thе trial court did not err in granting summary judgment in favor of the Ruperts on their inverse condemnation claim.
[¶18.] 2. Whether the trial court erred in determining that the proper measure of damages in this case was the clean-up and replacement costs of the trees along with damages attributable to loss of shade, ornamental value, aesthetic value, and loss of enjoyment of the trees.
[¶19.] The City argues the trial court committed reversible error in rejecting its claim that the proper measure of damages in this case was the diminution in market value and instead ruling that the
[¶20.] We have traditionally held that the proper measure of damages in condemnation cases involving a partial taking or damaging of property “is the difference between the fair market value of the unit before the taking and the fair market value of what remains after the taking.” See, e.g., Corson Vill. Sanitary Dist. v. Strozdas, 539 N.W.2d 876, 879 (S.D.1995) (quoting City of Sioux Falls v. Kelley, 513 N.W.2d 97, 103 (S.D.1994)). The fair market value and diminution in market value measures of damages are generally used in condemnation cases despite a party‘s request for application of an alternative measure of damages. See State Highway Comm‘n v. Am. Mem‘l Parks, Inc., 82 S.D. 231, 144 N.W.2d 25 (1966) (rejecting measure of damages that determined “just compensation” based on the mathematical aggregate of prices of individual cemetery lots, and instead determining “just compensation” basеd on the fair market value of the tract of land as a whole); Bredvik, 268 N.W.2d at 146 (concluding that when there was an ascertainable market value, there was no reason to depart from the general rule, even if the land had value that was unique to its blind owner). See also Walkenhorst v. State Dep‘t of Rds., 253 Neb. 986, 573 N.W.2d 474, 482-83 (1998) (agreeing with statement of Iowa Supreme Court in Laube v. Estate of Thomas, 376 N.W.2d 108, 109 (Iowa 1985)), and indicating that where trees are “put to a special purpose, such as for windbreaks, shade or ornamental use, the measure of the value of the condemned land is usually the difference in value of the realty before and after the destruction of the trees“); Sanitary & Improvement Dist. No. 384 v. Bruhns Packing Co., 259 Neb. 351, 609 N.W.2d 679, 686 (2000) (determining that a landowner who had suffered a temporary loss of his property, which included the destruction of his trees, could not collect damages for both the diminution in market value and the cost of restoration of the trees). “Fair market value” is “the highest price for which property considered at its best and most profitable use can be sold in the open market by a willing seller to a willing buyer[,] neither acting under compulsion and both exercising reasonable judgment.” Am. Mem‘l Parks, Inc., 82 S.D. at 236, 144 N.W.2d at 27-28 (citing City of Huron v. Jelgerhuis, 77 S.D. 600, 605, 97 N.W.2d 314, 317 (1959)).
[¶21.] The diminution in value measure of damages, which has been applied in condemnation cases involving a partial taking or damaging of property, has also been applied in inverse condemnation cases. See Hurley v. State (Hurley I), 81 S.D. 318, 319-21, 134 N.W.2d 782, 782-83 (1965) (stating that in an inverse condemnation action to recover damages when construction of road prevented access to plaintiff‘s lot, the general rule for measure of damages was “the difference in value of the tract before and after the portion is taken“); Heezen v. Aurora Cnty., 83 S.D. 198, 206-07, 157 N.W.2d 26, 31 (1968) (concluding that in an action by plaintiff to recover for damage to land due to flooding caused by the county, the proper measure of damages for permanent damage to the property was “the difference in market value of
[¶22.] In this case, the trial court‘s rationale for using the clean-up and replacement costs of the trees along with damages attributable to loss of shade, ornamental value, aesthetic value, and loss of enjoyment of the trees as the measure of damages, as opposed to the diminution in value measure of damages, was based on its determinаtion that the damage to the Ruperts’ trees was temporary rather than permanent. In making this determination, the trial court found that the trees could be repaired or restored. In this case, we conclude the trial court‘s pre-trial determination was erroneous.
[¶23.] With regard to damage to property, this Court has stated:
Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 272 (S.D.1985) (internal citations omitted). In specifically considering the permanency of the damage to the Ruperts’ trees, it is undisputed that the City‘s use of the deicer killed 42 trees. Dead trees cannot be repaired or restored to their original condition in the immediate future. However, the damage to the Ruperts’ trees is not the only factor that affects the determination of whether the damage to the Ruperts’ property was permanent as opposed to temporary. In this case, other factors should be considered in determining whether the damage to the Ruperts’ property caused by the deicer runoff was temporary or permanent.Damage to real estate has been held to be permanent when it is ‘of such a character and existing under such circumstances that it will be presumed to continue indefinitely,’ when it is irremediable, when it ‘inconveniences the owner in its right and accustomed use, and requires time and expense to restore the land to its former condition,’ [or] when it ‘will remain even though the cause has been abated,‘....
[¶24.] For example, there is no indication that the City plans to stop using the deicer on the streets during the winter. In fact, during oral argument, counsel for the City indicated that the City intends to continue its use of the deicer. Thus, even if the trees are replaced, the deicer will presumably kill the new trees. On the other hand, despite the City‘s plan to continue using the deicеr, during oral arguments the parties acknowledged that the problems caused by the deicer runoff could be alleviated through the construction of a curb and gutter along the road adjacent to the Ruperts’ property, because the curb and gutter would prevent the deicer from accessing the Ruperts’ property. However, there is no indication that the Ruperts themselves have acquired permits and have paid to have a curb and gutter installed, or that they have started the process they would need to go through to have the City install a curb and gutter along the road adjacent to their property. In addition, even if the Ruperts did complete the process to request that the City install a curb and gutter, there is no guarantee that their request would be approved. Finally, the parties did not present any evidence regarding whether the deicer‘s effects on the soil will be long-term. If the soil has sustained long-term damage as a result of
[¶25.] Overall, the record does not reflect that the trial court adequately considered these various factors when it determined that the damage to the Ruperts’ property was temporary. Further, in this case, we conclude that the trial court‘s pre-trial determination that the damaging of the Ruperts’ property was temporary was improper. Instead, the question of whether the damage to the Ruperts’ property was temporary or permanent is a question of fact that should have been decided by the fact finder.
[¶26.] Next, as to the measure of damages to be applied in this case, if the jury finds that the damage to the Ruperts’ property is permanent, the proper measure of damages is the diminution in fair market value of the property. When the diminution in market value measure of damages is applied, we have held that “the landowner is entitled to have the jury informed as to all those facts which legitimately bear upon the market value of the [land] before and after the taking and those factors which would ordinarily influence a prospective purchaser in negotiating for the property.” State Highway Comm‘n v. Hayes Estate, 82 S.D. 27, 34, 140 N.W.2d 680, 684 (1966). See also Schuler v. Bd. of Sup‘rs, 12 S.D. 460, 81 N.W. 890, 893 (1900).
[¶27.] If instead the jury finds that the damage to the Ruperts’ property is temporary, the proper measure of damages in this case is “the reasonable cost of restoration, unless such cost is greater than the diminution in value of the premises, in which case the difference in market value bеfore and after the injury would be the proper measure of damages.”7 Ward v. LaCreek Elec. Ass‘n, 83 S.D. 584, 593, 163 N.W.2d 344, 349 (1968) (quoting Reed v. Consol. Feldspar Corp., 71 S.D. 189, 196, 23 N.W.2d 154, 157 (1946)). Thus, the restoration costs measure of damages is not without limits. It is not designed to create a windfall to the landowner. The landowner may generally only recover restoration costs if that amount does not exceed the diminution in value of the property. This Court has previously stated that damages in an eminent domain case are not ““manna from heaven‘; [they] must be based on actual loss of value.” Lawrence Cnty. v. Miller, 2010 S.D. 60, ¶ 21, 786 N.W.2d 360, 369 (quoting Basin Elec. Power Coop., Inc. v. Cutler, 88 S.D. 214, 220, 217 N.W.2d 798, 801 (1974)).
[¶28.] In this case, the jury awarded the Ruperts $126,530 based upon the measure of damages adopted by the trial court. The City was prepared to present testimony by an expert which would have shown that the total value of the Ruperts’ entire property prior to the damage was $178,500, and that the value of
[¶29.] As previously mentioned, the ultimate determination of whether government conduct constitutes a taking or damaging is a question of law for thе court. See Benson, 2006 S.D. 8, ¶ 39, 710 N.W.2d at 145. However, the jury is charged with determining questions of fact pertinent to an inverse condemnation claim, such as whether the damage to the Ruperts’ property is temporary or permanent. Thus, in this case it was improper for the trial court to decide the measure of damages issue by summary judgment. As a result, we reverse and remand for re-trial regarding the amount of “just compensation” the Ruperts are entitled to recover for the City‘s damaging of their property.
[¶30.] 3. Whether the trial court erred in denying the Ruperts’ request for attorney fees.
[¶31.] On appeal, the Ruperts seek review of the trial court‘s denial of their request for attorney fees. Following the jury‘s verdict in favor of the Ruperts, the Ruperts filed a motion for attorney fees pursuant to
[¶32.] “[T]he construction of a statute and its application to particular facts present a question of law, reviewed de novo.” Bosse v. Quam, 537 N.W.2d 8, 10 (S.D.1995) (citing Schoenrock v. Tappe, 419 N.W.2d 197, 200 (S.D.1988)). For purposes of awarding attorney fees, South Dakota subscribes to the “American Rule.” Boland v. City of Rapid City, 315 N.W.2d 496, 503 n. 4 (S.D.1982). Under the “American Rule,” each party in an action bears its own attorney fees. Toft v. Toft, 2006 S.D. 91, ¶ 17, 723 N.W.2d 546, 551 (citing In re S.D. Microsoft Antitrust Litig., 2005 S.D. 113, ¶ 29, 707 N.W.2d 85, 98). However, there are two exceptions to this rule. Id. First, attorney fees may be awarded “when the parties enter into an agreement entitling the prevailing party to an award of attorney‘s fees.” Id. Alternatively, attorney fees may be awarded if “an award of attorney‘s fees is authorized by statute.” Id. Further, in considering whether an award of attorney fees is authorized by statute, “[t]his Court has rigorously followed the rule that authority to assess attorney fees may not be implied, but must rest upon a clear legislative grant of power.” In re Estate of O‘Keefe, 1998 S.D. 92, ¶ 17, 583 N.W.2d 138, 142 (quoting Schuldies v. Millar, 1996 S.D. 120, ¶ 38, 555 N.W.2d 90, 100).
[¶33.] Our analysis of the doctrine of sovereign immunity is consistent with the above. Abrogation of sovereign immunity by the Legislature must be express. See In re Request for Op. of Sup. Ct. Relative to Constitutionality of SDCL
[¶34.] Title 21 of the South Dakota Codified Laws governs South Dakota‘s judicial remedies. Within Title 21,
If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter is twenty percent greater than the plaintiff‘s final offer which shall be filed with the court having jurisdiction over the action at the time trial is commenced, and if that total award exceeds seven hundred dollars, the court shall, in addition to such taxable costs as are allowed by law, allow reasonable attorney fees and compensation for not more than two expert witnesses, all as determined by the court.
[¶35.] In this case, the parties did not enter into an agreement regarding attorney fees. Further,
[¶36.] First, the language of
[¶37.] Furthermore, this Court has stated that the general purpose of
[¶39.] 4. Whether the trial court erred in granting summary judgment in favor of the City on the Ruperts’ negligence and trespass claims.
[¶40.] The Ruperts filed a notice of review as to whether the trial court erred in granting summary judgment in favor of the City on the Ruperts’ negligence8 and trespass claims. Along with reviewing this issue, the City requests that this Court determine the extent to which the City is protected from these claims by sovereign immunity (which was the subject of the City‘s initial motion for summary judgment which was denied by the trial court).
[¶41.] In considering the causes of action availablе to a landowner whose land has been taken or damaged, the general rule followed by most courts is that if there is a statute that provides an adequate remedy for obtaining “just compensation,” the statutory remedy is exclusive. See 6A Nichols on Eminent Domain § 28.02[6][a][iii] (rev.3d ed.2002) (stating that “even in the absence of a statutory declaration of exclusiveness, where the statute provides a definite and adequate remedy, the statutory remedy is deemed exclusive“); Kaukauna Water-Power Co. v. Green Bay & M. Canal Co., 142 U.S. 254, 280, 12 S.Ct. 173, 180, 35 L.Ed. 1004 (1891) (stating that “[w]here a statute for the condemnation of lands provides a definite and complete remedy for obtaining compensation, this remedy is exclusive; the common-law remedy or proceeding is superseded by the statute, and the owner must pursue the course pointed out by it“); Elec. Short Line Terminal Co. v. City of Minneapolis, 242 Minn. 1, 64 N.W.2d 149, 152 (1954) (footnote omitted)
[¶41.] continued... for an outright taking. The subject of exclusivity of remedy arose within the context of the “damage” provision and the time for payment of compensation. One delegate declared:
No other delegate contested this view of exclusivity of remedy. 1 1885 Dakota Constitutional Convention, 336 (Doane Robinson ed., Huronite Printing Co. 1907) (emphasis added).I tell you that is a very different thing to going out on a farm and setting out trees, placing your buildings, your house and barns, and here comes a railroad along, and the first thing you know the line is surveyed right between your house and your barn; of course you have no other redress....
[¶42.] The rationale for the general rule that the remedy provided by statute is exclusive is that “there is no action at common law which the owner can invoke.” 6 Nichols, supra ¶ 41, § 24.06[5][a]. “That whiсh the law authorizes and which is an exercise of public rights acquired in a lawful and constitutional manner cannot be made the basis of an action of trespass or of any other action sounding in tort.” Id. Notably, even in the absence of a specific statutory remedy, many courts have used this same rationale in determining that an inverse condemnation action to obtain “just compensation” is a landowner‘s sole remedy when a governmental entity takes or damages land pursuant to its powers of eminent domain. See Tuffley v. City of Syracuse, 82 A.D.2d 110, 442 N.Y.S.2d 326, 330 (1981) (stating that “[i]nverse condemnation, rather than trespass, is the appropriate theory for granting damages to an injured landowner where the trespasser is cloaked with the power of eminent domain“); Jacobson v. N.D. Dep‘t of State Highways, 68 N.D. 259, 278 N.W. 652, 653 (1938) (indicating that “the State or a municipality, in taking private property for public use, acts in its sovereign capacity, and not as а trespasser” and that “[w]hat is recovered is ‘compensation,’ ... [i]t is not damages in the strict sense of the word“); Great N. Ry. Co. v. State, 102 Wash. 348, 173 P. 40, 42 (1918) (stating that “[i]f the state or its agent, in the prosecution of a public work, takes no more than is necessary, and prosecutes its work without negligence, it is neither a trespasser nor a tort-feasor“). See also Coates v. United States, 117 Ct.Cl. 795, 93 F.Supp. 637 (1950); Bacich v. Bd. of Control, 23 Cal.2d 343, 144 P.2d 818 (1943); City of Hazard v. Eversole, 237 Ky. 242, 35 S.W.2d 313 (1931); Turner v. Mo. Pac. Ry. Co., 130 Mo.App. 535, 109 S.W. 101 (1908); Sarnelli v. City of New York, 256 A.D.2d 399, 681 N.Y.S.2d 578 (1998); Eller v. Bd. of Educ., 242 N.C. 584, 89 S.E.2d 144 (1955); Moore v. Clark, 235 N.C. 364, 70 S.E.2d 182 (1952); City of Oklahoma City v. Daly, 316 P.2d 129 (Okla.1957); State v. Malone, 168 S.W.2d 292 (Tex.Civ.App. 1943); Cronin v. Janesville Traction Co., 163 Wis. 436, 158 N.W. 254 (1916).
[¶43.] South Dakota does not have specific statutes regarding inverse condemnation. However, inverse condemnation actions have been explicitly recog-
[¶44.] In this case, the City had both the authority to maintain the roads and the authority to damage the Ruperts’ property.11 In concluding that the City‘s actions constituted a “damaging” of the Ruperts’ property under
CONCLUSION
[¶45.] The evidence supports the trial court‘s determination that the damage to the Ruperts’ property was unique and was not a kind of damage suffered by the general public as a whole. Thus, the trial court did not err in granting summary judgment in favor of the Ruperts on their inverse condemnation claim. However, the measure of damages used at trial for purposes of calculating the Ruperts’ award of “just compensation” was erroneous. Therefore, we reverse and remand for a new trial on damages in a manner consistent with this opinion. Next, the trial court properly denied the Ruperts’ request for attorney fees, as
[¶46.] ZINTER, SEVERSON, and WILBUR, Justices, and HOFFMAN, Circuit Court Judge, concur.
[¶47.] HOFFMAN, Circuit Court Judge, sitting for KONENKAMP, Justice, disqualified.
Notes
It is an open question whether the destruction of the trees herein was for “construction or enlargement” of the City‘s works, highways, or improvements. As neither party raised the application of this constitutional provision, we leave its construction for another day.Municipal 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.