ZASTROW, Justice.
This is an appeal from a circuit court judgment which granted a right-of-way across appellant’s property to intervenors’ isolated tract of land and awarded appellant $1,800 as compensation for the land taken for the right-of-way. We reverse the trial court’s judgment as it relates to the compensation awarded appellant.
FACTS
Intervenors, A. J. and Karen Thybo, are the owners of a tract of land which appellant concedes is “isolated” within the meaning of SDCL 31-22-1. Intervenors were unable to reach an agreement with appellant, Frawley Ranches, Inc., for the purchase of a right-of-way from their isolated tract to the nearest public highway (SDCL 31-22-2). The right-of-way sought by in-tervenors lay across the private property of appellant. In order to obtain a right-of-way to their property, intervenors filed an application on June 25, 1974, pursuant to the provisions of SDCL 31-22 with the respondent Lawrence County Board of Commissioners (Board).
After giving appellant the statutory notice, the Board visited the land surrounding the isolated tract. Their visit confirmed the fact that the section line right-of-ways could not be utilized for highway purposes. In addition to the proposed route, they also viewed three alternative routes for the right-of-way. Routes one and four traversed over one and one-eighth mile of rough terrain and connected to an “unmaintained” and steep, narrow, winding and greatly eroded county road. Routes three and four would provide access only to the east one-fourth of the Thybo property which is separated and made inaccessible from the west portion by a deep gorge.
Route two, the route proposed and chosen by the Board, is only one-half mile long, over moderate terrain, and connects to a “black-top” highway. The Board proceeded to lay out a right-of-way twenty-five feet in width from intervenors’ tract across appellant’s property to the paved highway (SDCL 31-22-3). The resolution of the Board granting the requested right-of-way and assessing damages for appellant in the sum of $1,800 for the easement created thereby was passed on April 9, 1975.
In May of 1975, appellant appealed from the Board’s resolution and assessment of damages to the Circuit Court for the Eighth Judicial Circuit (SDCL 31-22-5). The circuit court conducted a trial de novo and found for the Board and intervenors, and entered a judgment which affirmed the Board’s grant of the right-of-way and assessment of damages.
ISSUES
The appellant contends:
(1) That SDCL 31-22 is unconstitutional in that it condemns private property for private uses;
(2) That SDCL 31-22 is unconstitutional in that it condemns private property without procedural due process of proper notice and hearing;
(3) That the decision of the Board violated SDCL 1-26 in that it was arbitrary, capricious, and contrary to law;
(4) That the appraisals relied upon by the Board were improperly admitted and that the appraisals employed an improper measure of damages.1
We preface our discussion of the constitutionality of SDCL 31-22 by recog[369]*369nizing the presumption which favors the validity of legislative action. No statute should be held unconstitutional unless its infraction of constitutional principles is so plain and palpable as to admit of no reasonable doubt, Kramar v. Bon Homme County, 1968, 83 S.D. 112, 155 N.W.2d 777; Rammers v. Heartland, 1970, 85 S.D. 205, 180 N.W.2d 398; Nelson et al. v. City of Miller, 1968, 83 S.D. 611, 163 N.W.2d 533; State ex rel. Botkin v. Welsh, 1933, 61 S.D. 593, 251 N.W. 189. Further, whenever within the bounds of reason and legitimate construction an act of the legislature can be construed as not to violate the constitution, then such construction should be adopted. Matthews v. Linn, 1959, 78 S.D. 203, 99 N.W.2d 885.
PUBLIC VS. PRIVATE USE
Appellant’s first contention is that the right-of-way is a private road for the use and enjoyment of a private individual. Respondents concede that intervenors would benefit most directly from the right-of-way. However, that fact alone is not conclusive of the private as opposed to public nature of the right-of-way because the public has an interest in having access to each and every member thereof. Mueller v. Supervisors of Town of Courtland, 1912,117 Minn. 290, 135 N.W. 996. The controlling factor is not the necessity or the fact of the use but the right to use the right-of-way. Illinois Central Railroad Company v. East Sioux Falls Quarry Company, 1913, 33 S.D. 63, 144 N.W. 724. The right-of-way is public if everyone who desires may lawfully use the right-of-way. It is the right of travel by all the world, not the actual exercise of the right which constitutes a road a public highway. Road Dist. No. 4 v. Frailey, 1924, 313 Ill. 568, 145 N.E. 195; Department of Public Works and Buildings v. Farina, 1963, 29 Ill.2d 474, 194 N.E.2d 209. There is nothing in the statute which indicates that the isolated tract owner can restrict travel upon the right-of-way or that all members of the public do not have the right to travel over the right-of-way.
Appellant contends that the label that is attached to the right-of-way by SDCL 31-22 is important in determining the character of the road. See Moritz v. Buglewicz, 1972, 187 Neb. 819, 194 N.W.2d 215. However, since the statute never expressly refers to the right-of-way as either public or private, we can conclude but little from the lack of a public or private label. One indication that the intent of the legislature in passing SDCL 31-22 was to create a public road is that the county auditor is directed to record the right-of-way in his or her “record of highways.” See SDCL 31-22 — 4.
Free access — add to your briefcase to read the full text and ask questions with AI
ZASTROW, Justice.
This is an appeal from a circuit court judgment which granted a right-of-way across appellant’s property to intervenors’ isolated tract of land and awarded appellant $1,800 as compensation for the land taken for the right-of-way. We reverse the trial court’s judgment as it relates to the compensation awarded appellant.
FACTS
Intervenors, A. J. and Karen Thybo, are the owners of a tract of land which appellant concedes is “isolated” within the meaning of SDCL 31-22-1. Intervenors were unable to reach an agreement with appellant, Frawley Ranches, Inc., for the purchase of a right-of-way from their isolated tract to the nearest public highway (SDCL 31-22-2). The right-of-way sought by in-tervenors lay across the private property of appellant. In order to obtain a right-of-way to their property, intervenors filed an application on June 25, 1974, pursuant to the provisions of SDCL 31-22 with the respondent Lawrence County Board of Commissioners (Board).
After giving appellant the statutory notice, the Board visited the land surrounding the isolated tract. Their visit confirmed the fact that the section line right-of-ways could not be utilized for highway purposes. In addition to the proposed route, they also viewed three alternative routes for the right-of-way. Routes one and four traversed over one and one-eighth mile of rough terrain and connected to an “unmaintained” and steep, narrow, winding and greatly eroded county road. Routes three and four would provide access only to the east one-fourth of the Thybo property which is separated and made inaccessible from the west portion by a deep gorge.
Route two, the route proposed and chosen by the Board, is only one-half mile long, over moderate terrain, and connects to a “black-top” highway. The Board proceeded to lay out a right-of-way twenty-five feet in width from intervenors’ tract across appellant’s property to the paved highway (SDCL 31-22-3). The resolution of the Board granting the requested right-of-way and assessing damages for appellant in the sum of $1,800 for the easement created thereby was passed on April 9, 1975.
In May of 1975, appellant appealed from the Board’s resolution and assessment of damages to the Circuit Court for the Eighth Judicial Circuit (SDCL 31-22-5). The circuit court conducted a trial de novo and found for the Board and intervenors, and entered a judgment which affirmed the Board’s grant of the right-of-way and assessment of damages.
ISSUES
The appellant contends:
(1) That SDCL 31-22 is unconstitutional in that it condemns private property for private uses;
(2) That SDCL 31-22 is unconstitutional in that it condemns private property without procedural due process of proper notice and hearing;
(3) That the decision of the Board violated SDCL 1-26 in that it was arbitrary, capricious, and contrary to law;
(4) That the appraisals relied upon by the Board were improperly admitted and that the appraisals employed an improper measure of damages.1
We preface our discussion of the constitutionality of SDCL 31-22 by recog[369]*369nizing the presumption which favors the validity of legislative action. No statute should be held unconstitutional unless its infraction of constitutional principles is so plain and palpable as to admit of no reasonable doubt, Kramar v. Bon Homme County, 1968, 83 S.D. 112, 155 N.W.2d 777; Rammers v. Heartland, 1970, 85 S.D. 205, 180 N.W.2d 398; Nelson et al. v. City of Miller, 1968, 83 S.D. 611, 163 N.W.2d 533; State ex rel. Botkin v. Welsh, 1933, 61 S.D. 593, 251 N.W. 189. Further, whenever within the bounds of reason and legitimate construction an act of the legislature can be construed as not to violate the constitution, then such construction should be adopted. Matthews v. Linn, 1959, 78 S.D. 203, 99 N.W.2d 885.
PUBLIC VS. PRIVATE USE
Appellant’s first contention is that the right-of-way is a private road for the use and enjoyment of a private individual. Respondents concede that intervenors would benefit most directly from the right-of-way. However, that fact alone is not conclusive of the private as opposed to public nature of the right-of-way because the public has an interest in having access to each and every member thereof. Mueller v. Supervisors of Town of Courtland, 1912,117 Minn. 290, 135 N.W. 996. The controlling factor is not the necessity or the fact of the use but the right to use the right-of-way. Illinois Central Railroad Company v. East Sioux Falls Quarry Company, 1913, 33 S.D. 63, 144 N.W. 724. The right-of-way is public if everyone who desires may lawfully use the right-of-way. It is the right of travel by all the world, not the actual exercise of the right which constitutes a road a public highway. Road Dist. No. 4 v. Frailey, 1924, 313 Ill. 568, 145 N.E. 195; Department of Public Works and Buildings v. Farina, 1963, 29 Ill.2d 474, 194 N.E.2d 209. There is nothing in the statute which indicates that the isolated tract owner can restrict travel upon the right-of-way or that all members of the public do not have the right to travel over the right-of-way.
Appellant contends that the label that is attached to the right-of-way by SDCL 31-22 is important in determining the character of the road. See Moritz v. Buglewicz, 1972, 187 Neb. 819, 194 N.W.2d 215. However, since the statute never expressly refers to the right-of-way as either public or private, we can conclude but little from the lack of a public or private label. One indication that the intent of the legislature in passing SDCL 31-22 was to create a public road is that the county auditor is directed to record the right-of-way in his or her “record of highways.” See SDCL 31-22 — 4. The 1970 amendment, which allows the use of this process where the section line right-of-way is impassable, reinforces the intent, in that it is a public way taken to replace the section line right-of-way.
Appellant also contends that under SDCL 31-22-8,2 the maintenance and upkeep of the right-of-way are the sole responsibility of the isolated tract owner. Appellant interprets the statute as relieving the county of all responsibility for the right-of-way. This, it contends, will allow the isolated tract owner to abandon the right-of-way by neglecting to properly maintain it. Although the primary responsibility for maintenance and the expense is placed upon the isolated tract owner, the statute does not relieve the county of its responsibility to maintain its public highways. See SDCL 31-12-6, 31-12-19, and 31-12-24.
Next, appellant contends that the isolated tract owner has total dominion over the right-of-way due to the fact that he is required3 to maintain and keep closed a [370]*370gate at every fence line which his right-of-way passes or to fence both sides of the right-of-way. This total dominion by the isolated tract owner indicates the private nature of the roadway, according to appellant, because the tract owner may use the right-of-way at his pleasure and permit or deny the use of the road to the public merely by locking the gate. We disagree with appellant. If the isolated tract owner installs gates at every fence which the right-of-way crosses, the statute requires only that he keep the gate closed. SDCL 31-22-7 does not give him, and we conclude he does not have, the authority to regulate traffic by locking the gate. Although the mere existence of a gate on a public highway may be the antithesis of public use, the practice has been statutorily recognized in the grazing lands of this state. See SDCL 31-25.
Furthermore, SDCL 31-22-7 gives the subservient the option of requesting the installation of fences along the right-of-way. When that option is exercised, as it was here, the isolated tract owner cannot dominate the right-of-way suggested by appellant.
The principle to be deduced * * * seems to be that if, by a fair construction and operation of the statute, the road, when laid out, is in fact a public road, for the use of all who may desire to use it, the law is not liable to the charge of unconstitutionality, and is valid, though the road may be laid out on application, paid for, and kept in repair, by the petitioner, and primarily designed for his benefit, * * *. Towns v. Klamath Co., 33 Or. 225, 53 P. 606; Fanning v. Gilliland, 37 Or. 369, 61 P. 636.
The authority, although old, is still recognized by the treatise writers and is comparable to the assessments against abutting landowners for the cost of street and sidewalk improvements. 2A Nichols Eminent Domain § 7.626, 26 Am.Jur.2d Eminent Domain § 36.
We think a fair construction of SDCL 31-22 provides that the right-of-way created was intended to be, and is, a public right-of-way open to all the world.4
DUE PROCESS OF LAW
Finally, appellant argues that SDCL 31-22 unconstitutionally condemns private property without due process of law. Appellant complains that SDCL 31-22 provides for no meaningful hearing prior to the taking of property for the right-of-way. However, a close reading of SDCL 31-22-2 and 31-22-3 reveals the following procedures:
1) The isolated tract owner makes a written application to the Board describing the isolated tract and the surrounding land over which a right-of-way is desired.
2) The Board serves the surrounding landowner written notice of time when Board will visit the site for the purpose of laying out a right-of-way and appraising the damages to the surrounding landowner.
3) On the day set for the visit, the Board proceeds to the place named, lays out the right-of-way, and in so doing considers the convenience of the parties.
There is nothing in the statute which requires the Board to have the entire hearing at the site of the proposed right-of-way. The Board returned to its regular meeting place to further consider the matter, hear expert witnesses, and assess the amount of damages.
[371]*371Appellant was given notice and the opportunity to be heard at the time the Board visited the property on February 10, 1975. At its meeting on April 9, 1975, of which appellant had notice but failed to attend, the Board passed a resolution approving the isolated tract owner’s application for a right-of-way and assessing damages to appellant at $1,800.00.
SDCL 31-22-5 further provides the appellant the right to appeal both the Board’s decision and the assessment of damages by means of a trial de novo in the circuit court. Under the ruling of In re Robinson, 1951, 73 S.D. 580, 46 N.W.2d 908, it appears that on a de novo appeal in the circuit court from the county commissioner’s decision, the powers of the circuit court are the same as those possessed by the county commissioners, that is, to determine anew that which the commissioners decided by means of a full evidentiary hearing with witnesses and transcripts. Appellant was afforded a full hearing in a trial de novo before the circuit court. Therefore, appellant has “no cause for a complaint of lack of due process” as a result of the Lawrence County Board of Commissioners’ actions. Matter of Campbell, 1977, S.D., 250 N.W.2d 280.
APPLICABILITY OF SDCL 1-26 (SDAPA)
It is appellant’s argument that under the South Dakota Administrative Procedures Act, SDCL 1-26-36(3), (4) and (6) specifically, the Board’s decision may be reversed as being arbitrary, capricious and contrary to law.
Before we reach the question of whether the Board’s decision is reversible under any subsection of SDCL 1-26-36, we must determine whether a decision made by the Board of County Commissioners, Lawrence County, is even subject to SDCL 1-26.
The question becomes whether the Lawrence County Board of Commissioners is an agency within the definition of that term as it is found in SDCL 1 — 26-l(l).5 The statute then in existence read as follows:
(1) ‘Agency’ means each state board, commission, department, or officer, authorized by law to make rules or to determine contested cases, other than the Legislature and the courts and any agency under the jurisdiction of such exempt departments, and including the department of game, fish and parks as provided by § 41-2-32; (Emphasis added.)
Where the term “agency” is defined by statute the statutory definition is controlling. 73 C.J.S. Public Administrative Bodies and Procedure, § 6. It would appear from reading the statute that the Lawrence County Board of Commissioners does not fit the definition given. The county commission is not a “state commission” with the authority “to make rules or to determine contested cases,” but, rather, is a commission with county-wide jurisdiction and certain statutory powers as are found in SDCL 7-8-20 to 7-8-26.
DAMAGES
A. Admissibility.
Appellant claims that the appraisals of Lamphere and Lambert, upon which respondents and the trial court relied, were erroneously admitted because the appraisers were not properly qualified.
Whether a witness is properly qualified to render an opinion as to value is a preliminary question of fact to be determined by the trial court. Generally, a wide discretion is allowed the court. In State Highway Comm. v. Hayes Estate, 1966, 82 S.D. 27, 42,140 N.W.2d 680, 688, it is,stated:
[372]*372[T]he witness should be familiar with the property taken or damaged, but the extent of his knowledge and familiarity as the foundation for such opinion rests largely with the trial court and its decision will ordinarily not be disturbed unless clearly erroneous. Wahlgren v. Loup River Public Power District, 139 Neb. 489, 297 N.W. 833; City of Huron v. Jelgerhuis, 77 S.D. 600, 97 N.W.2d 314.
The record reveals that Lamphere did, prior to making his appraisal, visit appellant ranch and inspect properties on all sides of the ranch. Likewise, Lambert was familiar with the property taken in that he rode over the land and used geological survey maps in appraising damages. He testified that he was familiar with land values in the Black Hills area, particularly in the Northern Black Hills, as he was raised there.
It does not appear, then, considering the trial court’s “wide discretion,” that its decision to admit Lambert’s and Lamphere’s appraisals was “clearly erroneous.” If anything, appellant’s arguments go to the weight of the appraisers’ testimony as opposed to their qualifications. State Highway Comm. v. Hayes Estate, supra.
B. Measure of Damages.
Appellant finally contends, and we agree, that an improper measure of damages was used. Respondents and the trial court exceeded their statutory authority by determining that the right-of-way need not be fenced and, therefore, that the severance damages would be minimal.
SDCL 31-22-7 specifically provided in part:
* * * [N]o fence will be deemed necessary unless requested by the owner of land through which such road passes, in which cases the owner of the isolated tract shall erect and maintain the fence along both sides of such right of way and shall locate at a point to be described by the owner of the land gates at least sixteen feet wide in each of such fences. (Emphasis supplied.)
Under SDCL 31-22-7 the need for fencing along both sides of the right-of-way is not for either the respondents or the trial court to determine. If the owner of the land requests fencing, then the isolated tract owner must provide fencing.6
Appellant is justified in its request for fencing for several reasons. The road, which we have determined to be a public one, cuts through a pasture used for grazing. The fencing is needed to prevent the wandering of livestock. Furthermore, it appears from the testimony that fencing will be needed to prevent hunters, campers and hikers in four-wheel drive vehicles from trespassing on appellant’s land which is located in the very scenic and historically significant Centennial Valley.
Because of our holding that fencing of the right-of-way is necessary, and because the appraisals relied upon by the trial court were based on the assumption that this was a private road and fencing would not be needed, and there would be no severance of appellant’s land by such fences, the damages awarded were inadequate. Accordingly, the judgment is affirmed in part and reversed in part as to the determination of damages suffered by appellant, and the matter is remanded for further proceedings not inconsistent with this decision.
WOLLMAN, C. J., and DUNN and PORTER, JJ., concur.
MORGAN, J., dissents.