Walker v. Hilltop Irrigation, Inc.

440 N.W.2d 521, 1989 S.D. LEXIS 83, 1989 WL 51672
CourtSouth Dakota Supreme Court
DecidedMay 17, 1989
DocketNo. 16176
StatusPublished

This text of 440 N.W.2d 521 (Walker v. Hilltop Irrigation, Inc.) 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
Walker v. Hilltop Irrigation, Inc., 440 N.W.2d 521, 1989 S.D. LEXIS 83, 1989 WL 51672 (S.D. 1989).

Opinions

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Plaintiff Elaine Walker (Walker) filed a complaint alleging that irrigation pipes, a related service road and electrical power conduits installed by defendants Hilltop Irrigation, Inc. (Hilltop) and Tri-County Electric Association, Inc. (Tri-County)1 constituted a trespass on her property. Walker sought damages and an injunction to prevent further trespass and to force removal of the offending installations. After a non-jury trial, the circuit court for Brule County issued judgment in favor of Hilltop, as it found no trespass by Hilltop. Walker appeals, alleging that Hilltop was a trespasser because it failed to follow statutory procedures regarding easements and, consequently, she is entitled to damages and an injunction. The injunction, Walker claims, would stop continuing trespass. We reverse, holding that trespass constituting a taking of private property without just compensation took place. Compensation is now to be determined below. Injunction does not lie.

[522]*522FACTS

On October 12, 1973, Walker’s husband, Wallace Warner (Warner), purchased 20 acres of State-owned school land at auction for $3,600. The contract of sale, issued by the Office of the Commissioner of School and Public Lands, was not recorded with the Brule County Register of Deeds. In contrast, other adjacent school property sold by auction to other parties was duly recorded. Mr. Warner died on April 28, 1977, having apparently made no use of the property, which then passed to his wife after his death. In the Fall of 1977, Walker visited the property, observed heavy equipment and earth moving activity, but she did not realize that her property was involved. According to Walker’s trial testimony, Hilltop “put this huge irrigation system in” to serve a “huge substation” east of her property. Walker later received a patent for the land from the Commissioner of School and Public Lands dated May 21, 1982. Shortly thereafter, Walker secured a building permit for her property.

Both Walker’s patent and Warner’s original contract for sale contained identical language providing that the State reserved “right of way for irrigation ditches, canals, etc., as provided by SDCL 1967 5-4-2 ... and in any law of the State of South Dakota reserving any rights of any kind in said State or any of its departments, institutions, subdivisions, funds or accounts.” SDCL 5-4-2 provides, in pertinent part:

There is also hereby granted to any person holding a valid water right under statutes of this state a right-of-way for the construction of dams, canals, water ditches, and laterals over all school and public land now and hereafter belonging to the state, when constructed by authority of the commissioner of school and public lands. All conveyances and contracts of sale of school and public lands shall contain a reservation of such right-of-way. (Emphasis added.)

SDCL ch. 5-4, which contains this statute, is entitled “Administration of School and Public Lands.”

In the meantime, Hilltop was organized as an irrigation district, in 1975, under SDCL ch. 46 (water rights). Hilltop developed a plan for irrigation, part of which called for placing underground water pipes, power lines, and a service road across Walker’s property. A title search at the Brule County Register of Deeds showed no conveyance from the State, unlike neighboring properties. Hilltop secured easements from the neighboring property owners, but, without notice of the sale of Walker’s property, apparently assumed that the State still owned her land. This assumption led to Hilltop’s installations, in 1977 or 1978, without acquiring an easement from Walker. No request for an easement was sent to the Commissioner of School and Public Lands, or forwarded from that official to the Governor for signature. Also, Hilltop’s easement was not recorded in the Brule County Register of Deeds.

During construction, Walker never protested. She did nothing to prevent the installation of improvements on her property. She showed little interest in the property until she acquired her building permit in 1982 (after receiving her patent which referred to reservation of an irrigation right-of-way). Walker filed her complaint on June 19,1984, alleging that her property had been diminished in value by $20,000, although the property was never appraised, either before or after Hilltop’s construction. She also asserted that “the value of the use of the property since the installation of the lines has been at least $2,000,” a reference which apparently is solely rooted in her belief that “[yjou’re supposed to get ten percent value on your money. Ten percent of twenty thousand dollars is two thousand dollars.” From 1973 until her 1982 application for a building permit, Walker and her husband made no use of the property. At trial, she testified that she had not seen the lot in three or four years.

DECISION

Walker first argues that Hilltop’s construction across her property constitutes a trespass because Hilltop failed to follow statutory procedures to acquire its easement, and, therefore, is a taking of her [523]*523property without due process of law or just compensation. See U.S. Const, amend. XIV, § 1; S.D. Const, art. VI, §§ 2, and 13. Walker concedes that SDCL 5-4-2 grants a right-of-way for irrigation works on school and public lands, and mandates reservation of such right-of-way in conveyances of such lands, a reservation which is printed in the contract for sale and patent for her property. She stresses, however, that this right-of-way is granted “when constructed by authority of the commissioner of school and public lands.” SDCL 5-4-2. SDCLch. 5-4, entitled “Administration of School and Public Lands,” contains procedures to be used regarding such rights-of-way: SDCL 5-4-3 requires filing maps or plats with the commissioner; SDCL 5-4-5 authorizes the commissioner to grant an easement “subject to such reasonable terms, conditions, and regulations as the commissioner may prescribe” when “public highways or section line rights-of-way are impractical for the purposes of the easement.” Walker also relies on SDCL ch. 5-2, entitled “State-Owned Lands in General,” which contains SDCL 5-2-11:

Upon application for conveyance of the title, or the granting of an easement of any kind over or across lands in which the title is in the state of South Dakota, the board, commission, or other agency of the state of South Dakota having the control of and administration of such lands shall forward to the commissioner of school and public lands a certified copy of a resolution of the agency requesting the conveyance, stating the consideration and citing the specific authority, if any, authorizing the conveyance.

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Related

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391 N.W.2d 180 (South Dakota Supreme Court, 1986)
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Bluebook (online)
440 N.W.2d 521, 1989 S.D. LEXIS 83, 1989 WL 51672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-hilltop-irrigation-inc-sd-1989.