*1 ux, STATE, Respondent LARSEN et Appellants

(238 684) (File 1976) February Opinion No. *2 Winner, and Simpson, plaintiffs appellants. John J. for Gen., Quist Janklow, Atty. Gary J. Carl W. and F. William Colwill, Gen., Pierre, Attys. defendant and respondent. Asst. for

DOYLE, Justice. summary judgment granted

This is an from a to the appeal defendant, Dakota, in an inverse condemnation ac- State of South by for of an access plaintiffs tion to recover to U.S. Highway 23,1969, and

On the State of South and Fred Dakota whereby Larsen a Right Agreement Celia entered into of 1,2,3,4, 5, plaintiffs the transferred H-l in 6 and 7 of the Lot Lots Addition, Winner, City Lueken of to the State of South Dakota as way. As highway right compensation, Agreement provided $250.00, the construction of approaches two highway property, to the Larsen the construction of a six-inch highway sleeve under to the Larsen and the transfer Larsens 1 N L in of Lot of Lot of Tract SWV4 North, Section 99 76 West. This was at Township Range lot the time owned the State of South Dakota. This conveyed was for “land fully Both in accordance with the damages.” parties performed 148 way right

convenants set forth 008-1(1) necessary for construction of F projects on 010-5(5) Highway 44 and F U.S. their intersec- tion in Winner. As a these an projects, located between of the Lueken Addition and said Lot Lot NLot was closed. 27,1973, July

On plaintiffs in inverse con- action $40,000, demnation the amount of alleging impaired property. access their No action was taken the Right Way Agreement to rescind executed no offer of restitution of the transferred Lot of Lot N was made.

The main issue this case is whether or not the Way Agreement entered between the plaintiffs into and defend- ant established any by for damage suffered a highway as result of the The plaintiffs construction. contend that the separate constituted a from their with the highway connected construction they and therefore be compensated should for this alleged taking beyond the compensation they received in the original Right of Way Agreement.

The parties a action entered into bind- legally ing contract when signed Agreement 1969. The contract properly executed and was one that the State Highway Commission was lawby authorized (SDCL 31-19-46). enter into 31-19-1 and As is stated Am.Jur.2d, Contracts, 21: §

“Parties who have reduced their writing in plain, terms or in unequivocal terms susceptible of in- terpretation and construction recognized under rules of law by are bound the meaning of the contract which is reached a proper interpretation.” The question concerning effect of a contractual con- veyance to an agency having power eminent domain been answered in jurisdictions. other As Hamilton v. Bismarck, City of N.D. 300 N.W. 631: conveyance ‘The of land for a public will or- purpose dinarily grantee vest in the rights though same had land been acquired condemnation. The con- veyance will be held to be release of all damages would be presumed to be included in the award if damages been condemned.’ “ ** * All damages that arose exercise the city’s power of eminent domain or its equivalent ac- quisition of rights under the contract were satisfied that contract.” State, 1966,101 388, 420 173; Busby v.

See also Ariz. P.2d Wescott Commission, 1964, State S.E.2d N.C. Highway Department Ivey, 217 Ga. Georgia 120 S.E.2d 618.

The circuit court found that the of the language clearly encompassed for all caused as a result 008-1(1) 010-5(5), F projects and F including any Thus, in question. in accord- 15-6-56(c) with ance there was no issue as to any material fact.

In plaintiffs their brief the the contend that of question whether not closing or the of the was within the contempla- Way of Right Agreement tion the of disputed is and thus the mo- for summary judgment tion should not have been granted. Granted, however, disputed; this fact is it is immaterial in the in- verse might condemnation action. It be a material an fact in ac- Rather, Way tion of seeking Right Agreement. rescission the of plaintiffs the are seeking damages to obtain while retaining the benefits of the This Agreement. is not proper under South since, stands, Dakota law Right Way while the Agreement of it a constitutes on its face complete settlement of the To question. further, proceed try the must plaintiffs Agree- first to rescind the (SDCL 53-11-5). ment 53-11-1 through

150 alley was contend the plaintiffs

The Way Agreement and thus Right in the of mentioned specifically point out attempt The does not Agreement was not covered. detail all individually specifically nor it damage item does each does is set forth Agreement What the do items of construction. entitled, which, were plaintiffs the to which the law, between the fair Dakota is the difference under South the fair acquisition before the minus property market value of acquisition. after the property market value of the remainder 543; 398, Horter, 1950, 73 S.D. N.W.2d City of Bristol v. Estate, Hayes S.D. v. Highway Commission Cutler, Basin Power Inc. Cooperative, N.W.2d Electric individual 217 N.W.2d No breakdown S.D. Way necessary damage attempted items of to in the plans referred The construction Agreement. the mouth extending line across show a curb highway. its entrance onto thus question, by an examination of this condition notice of executed the plan when Further, plaintiffs impair due to alleged if ment of access. It is true that a landowner’s access to his prop erty materially impaired, compensable been he has suffered injury ‘if peculiar to the owner’s consequential ” kind as a Hurley land not of a suffered whole.’ public State, 1966, Hurley 82 S.D. 722. The case fur held physical ther that where there is no encroachment on land may impairment owner’s of access constitute a property, substantially ain constitutional sense if it affects the market value of the property.

In there physical case was a appropriation As a question. highway project property way which the was an right acquired, adjacent As plaintiffs’ way was closed. for the right were entitled to the between acquired, landowners difference fair acquisi market value of the remainder after the tion. This figure arrived between the *5 If action in without court. con and if impairment stituted access of access af- impairment fected the fair market value of the remainder after the acquisition, provisions it was covered In this action plaintiffs attempting are to maintain an in- dependent action for a item This separate damage. pro- is not law, per under South Dakota as was State Highway Estate, v. Hayes supra: Commission * * * ‘Any elements of detriment ap- were

preciable substantial nature and had a reasonable tendency to lessen the market value of the land could be taken into consideration. These items injury are not be separate to allowed as items of damage, only but are to be considered determining reduction in value of ” the remaining tract.’

It is also by plaintiffs contended consent, in question, allegedly city’s without the defendant has violated 31-32-2.* This statute provides for damages in tort, and the have complied with proper procedures for suing the State of South Dakota nor is the statute applicable case.

The plaintiffs have placed great emphasis on the paragraph Resolution and between the Dakota, Winner and the State of South which provided that the City of Winner

“ * * * will save any harmless the Commission from (of) against made it for consequential put damage arising from and of the construction such work undertaken it whether the claim arises from streets, changing out of the grade causing loss or inconvenience or business of surround- owners, ing property any or from cause or causes what- soever.”

* Repealed by Ch. S.L. 1974. *6 accept provision of Winner did not this

The and the State of South Dakota Agreement, and Resolution liability claims have proper for such as accepted subsequently filed; applicable consequently, provision been present case. was closed question pur- our opinion

It is Way Right and project, construction suant to 23, 1969, settled Agreement executed property. and to the Larsen all claims for rely posi- cite and on two cases their support Plaintiffs 322, tion, State, 1965, 376 and v. Mich. 138 N.W.2d Thom Ky. Boyd County, 99 S.W.2d 737. Cranley factually a highway cases are In Thom distinguishable. Both many years Cranley after while original taking, was altered was, Department Highways reversed pertinent part, Jackson, Ky., 302 S.W.2d 373. summary

The in favor of the State of South judgment Dakota is properly granted.

Affirmed.

DUNN, J., WINANS, J., C. and concur. COLER, JJ.,

WOLLMAN and dissent. WOLLMAN, (dissenting). Justice I hold that there fact genuine would issue of to be re- solved, i.e., were aware at time they signed whether that the be would closed project. plans specifications construction are not so crystal clear that can be said a matter law that plaintiffs it was to notice of the fact that be closed the time Way Agreement. executed the

COLER, Justice (dissenting). I that there is a issue of agree with Justice Wollman While affidavits on the of the State Commis- part fact. appellants, ap- on the knowledge sion notice directly affidavit controverts that claim: pellants’ *7 “Summary remedy and should judgment extreme only and reasonable be awarded when the truth is clear issue as touching doubts the existence of fact against material should be resolved the movant.” Ry. Wilson v. v. Christopherson, Great Northern Co. 15-6-56(a). 83 S.D. N.W.2d relied upon does not set forth curb cuts that will be made appellants’ benefit but makes no mention of the closing of where it ends at the highway to be con- structed to I appellants’ detriment. see nothing the affidavits pleadings or which appellants establishes that had even seen drawing of the Department Transportation and I believe that it is a jury question as to whether a person of com- who, mon even if understanding, he had seen the drawing, would the ascribed comprehend meaning that the curb line drawn in- alley. dicates the of a street I feel that the closing of the street akin something change grade would be a contemplated and for which damages would be due beyond any above and settlement between the parties. al., al.,

WELLINGTON et v. STATE Appellants et Respondents

(238 499) (File 1976) Nos. 11655. Opinion February