South Dakota Department of Transportation v. Freeman

378 N.W.2d 241, 1985 S.D. LEXIS 381

• Court: South Dakota Supreme Court
• Decided: November 27, 1985
• Docket: 14969
• Status: Published

Opinions

WUEST, Acting Justice.

Appellants seek to appeal from an order determining the necessity of the taking of a highway billboard by the State Department of Transportation (DOT). DOT moved to dismiss the appeal, claiming it is an intermediate order not appealable as a matter of right. We grant the motion.

DOT commenced a condemnation proceeding to acquire a highway billboard owned by appellants. Appellants requested a hearing in circuit court on the issue of the necessity of acquiring the property. The trial court entered an order finding necessity for DOT’s resolution to take the billboard. Appellants appealed from this order without petitioning the court to appeal from an intermediate order. SDCL 15-26A-3(6) provides for appeals from intermediate orders upon petition, pursuant to SDCL 15-26A-13, not as a matter of right but of sound judicial discretion. Appellants claim they may appeal as a matter of right under SDCL 15-26A-3(2), which provides for an appeal of right from any final order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken.

In the case at bar, no proceedings have been held determining the just compensation to which appellants are entitled. Hence, no final judgment has been entered.

This court has consistently held that the right to appeal is statutory and no appeal may be taken unless a statute clearly authorizes one.

An appeal may not be taken from an order unless it is authorized by one of [the provisions of SDCL 15-26-1]. Wilge v. Crow, 74 S.D. 511, 54 N.W.2d 568 [ (1952) ]. An attempted appeal from an order from which no appeal lies is a nullity, Deere & Webber Co. v. Hinckley, 20 S.D. 359, 106 N.W. 138 [ (1906) ], and confers no jurisdiction on this court, except to dismiss it.

Oahe Enterprises, Incorporated v. Golden, 88 S.D. 296, 299, 218 N.W.2d 485, 487 (1974) (now see SDCL 15-26A-3); see, e.g., County School Board v. Cottonwood Sch. Dist. No. 41 81 S.D. 530, 137 N.W.2d 882 (1965).

South Dakota has no specific statutes governing appeals in condemnation cases. See SDCL 21-35-20 (appeals in condemnation actions to be taken the same as in other civil actions) and SDCL 31-19-21 and 31-19-40 (ch. 31-19 cumulative and additional to ch. 21-35), cf., e.g., Houser v. Olmstead, 57 S.D. 41, 230 N.W. 224 (1930) (no appeal could be taken by taxpayers to the circuit court from an award of damages by appraisers).

SDCL 21-35-20, however, limits appeals in condemnation cases by providing they “shall not prevent or delay the work or improvement involved” providing a deposit and bond are furnished for payment of compensation awarded. Further, SDCL 31-19-24 provides that title vests in the state when a declaration of taking has been filed pursuant to SDCL 31-19-23 on the date the hearing is held on the resolution of necessity, or when the hearing is waived. See SDCL 31-19-10.1. Further, SDCL 31-19-38 provides no appeal in any cause under SDCL 31-19-23 to SDCL 31-19-34 shall operate to prevent or delay vesting of title, interest or possession to lands acquired by the state under those statutes. We mention these apparent limitations on appeals in condemnation cases not because they present any issue in this case but to indicate they have not been overlooked in arriving at our decision herein. Possibly, they may cause a different result than our decision in this case, but we will decide those issues when presented.

In arguing that the order in this case is appealable under SDCL 15-26A-3(2) as a matter of right, appellants rely on County of Blue Earth v. Stauffenberg, 264 N.W.2d 647 (Minn.1978). In Blue Earth, the court reconsidered its earlier decisions and held: “Henceforth, in a condemnation proceeding where the issue of public necessity has been determined by the district court, an aggrieved party may appeal directly to [the supreme court] from the district court order.” 264 N.W.2d at 650. Although the Minnesota rule of appellate procedure, RCAP 103.03, specifies the kinds of orders and judgments that may be appealed from as a matter of right, the court did not cite which subsection of the rule it was relying on in deciding Blue Earth. In a subsequent decision, the court admitted that it was allowing a direct appeal even though its rule of appellate procedure did not provide for such a direct appeal. Alexandria Lake Area Service Region v. Johnson, 295 N.W.2d 588 (Minn.1980).

In later explaining its decision in Blue Earth, the Minnesota Supreme Court said: “The [Blue Earth] holding was based on the rationale that the allowance of appeals from a district court order determining necessity would serve to preclude the waste of judicial economy if the initial taking were to be invalidated.” Alexandria Lake Area Service Region, 295 N.W.2d at 590. This rationale considers only the use of judicial resources at the trial court level, however, and ignores the use of judicial resources at the appellate level where piecemeal appeals could occur, one appeal from the determination of necessity and one from the determination of compensation.

In some cases, general statutes granting appeals have been applied by courts that have considered the issue of whether an appeal may be taken from an order determining only the necessity of the taking or the right to take. In Arp v. State Highway Com’n, 567 P.2d 736 (Wyo.1977), the Wyoming Supreme Court applied its statute that defines “final order,” WRCP 72(a). The court dismissed the appeal and held that the order determining the necessity and good faith of the taking was not ap-pealable because it was not a “final order” within the definition of the statute. Arizona’s statute specifying the judgments and orders that are appealable as a matter of right to its court of appeals is remarkably similar to SDCL 15-26A-3. 4A Ariz.Rev. Stat. 12-2101. Under Arizona’s statute, the court of appeals has held that an appeal could not be taken from an order determining the propriety of a taking and leave the question of compensation for trial. Cordova v. City of Tucson, 15 Ariz.App. 469, 489 P.2d 727 (1971). In dismissing the appeal, the Court said:

The subject order is neither a ‘final judgment,’ a ‘final order,’ a ‘special order made after final judgment,’ nor an ‘order affecting a substantial right’ which in effect determines the action and prevents judgment from which an appeal might be taken....

In so holding, we do not mean to intimate that judicial relief at this juncture of a condemnation proceeding is absolutely barred. Although no rights of appeal exist, judicial intervention by way of special action may be available to avoid the serious economic waste which would result from a long drawn-out trial when the condemning authority has no right to condemn the land in question.

15 Ariz.App. at 470-71, 489 P.2d at 728-29. Thus, the Cordova Court also had economic considerations in mind, as did the Minnesota Court in Blue Earth, supra, but it reached a different result. The Cordova Court also cites authorities from several other jurisdictions in accord with the view that an order adjudicating the right to condemn is not appealable. E.g., People ex rel Dept. of Public Works v. Rodoni, 243 Cal. App.2d 771, 52 Cal.Rptr. 857 (1966); Big Horn Coal Company v. Sheridan-Wyoming Coal Company, 67 Wyo. 300, 224 P.2d 172 (1950), cited in Arp, supra. The court also relied on 6 J. Sackman, Nichols on Eminent Domain § 26.32 (3rd ed. 1984), in which the author acknowledged that there is some conflict on the question of when an appeal should be taken in a condemnation action.

When, however, the trial court adjudges that the petitioner has established its right to condemn the designated land, the order does not finally dispose of the proceedings, because there can be no judgment of condemnation until damages have been assessed. The rule at common law is that a writ of error does not lie except to a judgment which determines the entire controversy between the parties, and the courts have generally in accordance with this principle discouraged the review of a cause piecemeal. For this reason it is held in some jurisdictions that, unless it comes within some special statute, an order adjudging that the petitioner has the right to condemn is interlocutory only and not subject to appeal, and so the points of law involved in the adjudication cannot be heard by" an appellate court until there has been a final judgment of condemnation. The right of the owner to be heard by an appellate court upon the points of law involved in the adjudication of the right to take is, of course, not lost, but merely deferred until there is a decision of the trial court on the merits, confirming the award of compensation. Such a decision is a final judgment and may be reviewed as such, both upon the validity of the taking and upon the questions of law arising at the trial in which the amount of compensation was determined. The final decree in a condemnation proceeding is the order or decree which includes the amount of the awards and the names of the owners to whom payable.

6 J. Sackman, Nichols on Eminent Domain at § 26-243 to 26-247 (footnotes omitted).

We conclude the motion to dismiss shall be granted, but the order may be reviewed after final judgment. SDCL 15-26A-7 provides on appeal from a judgment the Supreme Court may review any order, ruling, or determination of the trial court.

FOSHEIM, Chief Justice, concurs. MORGAN, Justice, concurs in result. HENDERSON, Justice, dissents. HERTZ, Circuit Judge, acting as a Supreme Court Justice, not participating.