Home/South Dakota Supreme Court/State v. Peters

State v. Peters

334 N.W.2d 217, 1983 S.D. LEXIS 297
CourtSouth Dakota Supreme Court
DecidedApril 13, 1983
Docket13765
StatusPublished
Cited by13 cases

This text of 334 N.W.2d 217 (State v. Peters) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Peters, 334 N.W.2d 217, 1983 S.D. LEXIS 297 (S.D. 1983).

Opinions

FOSHEIM, Chief Justice.

Appellant Leo C. Peters was charged with trespassing on private land, in violation of SDCL 41-9-1,1 and hunting within 660 feet of livestock, in violation of SDCL 41-9-1.1.2 In a trial to the court he was [218]*218convicted of the former and acquitted of the latter. We reverse the conviction.

The only issue before us is whether appellant was hunting on private land without permission in violation of SDCL 41-9-1. He contends he was not hunting on private land, but rather on a section line right-of-way as permitted generally by SDCL 41-9-1.1. Appellee concedes Mr. Peters was hunting within the 66 foot section line, but contends it was an “unimproved” section line and thus excepted from the general rule.

The pertinent part of SDCL 41-9-1.1 reads:

Except for ... unimproved section lines not commonly used as public rights-of-way and never altered from their natural state in any way for the purpose of facilitating vehicular passage, ... § 41-9-1 shall not apply to .. . hunting on highways or other public rights-of-way within this state.

The charges arose out of events that occurred in western Sully County, near the impoundments of the Missouri River. This is a prime water fowl hunting area, which is controlled primarily by private hunting clubs and commercial goose hunting operators.

The section line in question is between Sections 13 and 24, Grandview Township in Sully County. Mr. Vernon Garrett owns all of Section 13 (it is unclear whether he owns Section 24) on which he had a commercial goose hunting operation in 1981. Mr. Lynn Hawkins ran this operation. It was open for business for approximately two months during the hunting season with an average of seven customers per day. About 434 sportsmen hunted in the Garrett pits during the 1981 season. The hunters would generally meet Mr. Hawkins at the west end of the section line between Sections 13 and 24 and travel east along that section line to the goose pits on Section 13. On the morning of November 25, 1981, Mr. Hawkins traveled the section line to the goose pits with two vehicles carrying hunters. Appellant later walked down the section from the west and also proceeded to hunt geese. He did no shooting. Mr. Hawkins first observed appellant on the section line when they were leaving the field following the morning shoot. After, questioning him about his presence, Mr. Hawkins called the Sheriff, which lead to these charges.

It is undisputed that the natural state of this section line was long grass prairie and that it was not long grass prairie on November 25, 1981. It is further undisputed that the fence, utility poles, and the compacted vehicle tracks were also alien to the natural state of the land. There is a gate at the west end of the section line where the defendant and the Hawkins party entered. No crops were grown on the section line in 1981, and there is evidence that it had not been farmed during recent years. Mr. Hawkins testified:

Q. (by Mr. Klinkel) And you are not denying, are you, Mr. Hawkins, that there was a clearly defined set of vehicle tracks going down that section line? MRS. ROGERS: Objection.
THE COURT: Overruled, he may answer.
A. Yes, there was a trail, track, that went down there.
Q. Was a pair of vehicle tracks, wasn’t it?
A. Yes, sir.
Q. I just want to understand we are not talking about a single dirt path, we are talking about two tracks made by vehicles going up and down that section line, isn’t that correct?
[219]*219A. Yes.
Q. And it was even more obvious than these photographs with some snow on them show, wasn’t it?
A. Yes, it was.

The photographs below show the tracks as they existed on November 25, 1981, except there was then no snow.

[220]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Patterson v. Plowboy, LLC
959 N.W.2d 55 (South Dakota Supreme Court, 2021)
Benson v. State
2006 SD 8 (South Dakota Supreme Court, 2006)
Reis v. Miller
1996 SD 75 (South Dakota Supreme Court, 1996)
State v. Tracy
539 N.W.2d 327 (South Dakota Supreme Court, 1995)
Trout v. State
866 P.2d 1323 (Court of Appeals of Alaska, 1994)
State v. Grenz
437 N.W.2d 851 (North Dakota Supreme Court, 1989)
Simpson v. Tobin
367 N.W.2d 757 (South Dakota Supreme Court, 1985)
State v. Peters
334 N.W.2d 217 (South Dakota Supreme Court, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
334 N.W.2d 217, 1983 S.D. LEXIS 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-peters-sd-1983.