# Hurley v. State

> South Dakota Supreme Court · June 21, 1966 · 82 S.D. 156

URL: https://www.frixlaw.com/law-library/cases/9663619

## Case

- **Full name:** HURLEY Et Ux., Plaintiffs v. STATE, Defendant
- **Court:** South Dakota Supreme Court
- **Decided:** June 21, 1966
- **Citations:** 82 S.D. 156; 143 N.W.2d 722; 1966 S.D. LEXIS 88
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Hanson, Rentto, Homeyer, Biegelmeier, Roberts
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9663619

## Opinion text

ROBERTS, Judge
(dissenting).
This is an action against the State of South Dakota to recover damages for alleged taking of rights of access to a street. There was no taking or physical invasion of the property of the plaintiffs. Before conversion of the street into a limited-access highway, plaintiffs whose property abuts the street had direct access.
The majority opinion holds that in the absence of a remedy provided by the legislature the state may nevertheless be subjected to suits at the instance of landowners to recover damages for the taking or damaging of private property under the power of eminent domain and thus in effect the defense of sovereign immunity from suit is abrogated. Without being confronted with the precise issue, the court announces its intention to recognize in the future the right to commencement and trial in the circuit courts of suits against the state for the taking or damaging of private property for public use.
I respectfully dissent. The opinion reverses a uniform and consistent course of decisions in this state, without adequate reason, and by a broad new construction of the constitution sanctions actions in the circuit court against the state for the recovery of damages on the basis of the constitutional prohibition of the taking or damaging of property without compensation.
Sovereign immunity from suit presents a jurisdictional question. The established doctrine that the sovereignty cannot be sued in its own courts without its consent is given recognition in our Constitution, Section 27, Article III, providing that "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." The conclusion resulting inevitably from a consideration of previous decisions *173 in this court is that judicial power granted by the constitution does not embrace authority to entertain a suit against the state unless by legislative action it has consented to be sued. Mullen & Rouke v. Dwight, 42 S.D. 171 , 173 N.W. 645 ; Mackey v. Reeves, 44 S.D. 153 , 182 N.W. 700 ; Sigwald v. State, 50 S.D. 37 , 208 N.W. 162 ; Wisconsin Granite Co. v. State, 54 S.D. 482 , 223 N.W. 600 ; Fransen v. State, 59 S.D. 432 , 240 N.W. 503 ; Griffis v. State, 68 S.D. 360 , 2 N.W.2d 666 .
In Mullen & Rouke v. Dwight, supra, this court considered an action commenced in the circuit court against the State Board of Regents to recover for the construction of a power house and repairs of buildings at a state normal school. The conclusion was reached that a suit against a state board upon a claim which is in reality a claim against the state is to be deemed a suit against the state. The state had not consented to the bringing of such action in the circuit court and suit therein was not maintainable. This does not mean that an action at law or a suit in equity against defendants, who while claiming to act as officers of the state violate and invade the rights of plaintiff, may not be maintained. White Eagle Oil & Ref. Co. v. Gunderson, 48 S.D. 608 , 205 N.W. 614 , 43 A.L.R. 397 . It may also be noted that injunctive relief will be granted to prevent the taking or damaging of private property in violation of the prohibitions in the eminent domain section. Fauske v. Dean, 78 S.D. 310 , 101 N.W.2d 769 .
As a basis of discussion of the constitutional questions involved, we should keep in mind that the power of eminent domain is not dependent upon specific grant in the constitution. It is inherent in the sovereignty. The original section (Art. VI, § 13) prohibited the taking or damaging of private property for public purpose "without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained, and before possession is taken." This prohibition was relaxed by amendment (Ch. 297, Laws 1961) which became effective after approval at the general election in 1962. Requirement that compensation be paid in advance of possession was eliminated. The amendment provides that private property for a public pur *174 pose shall not be taken, or damaged, "without just compensation, which will be determined according to legal procedure established by the Legislature" and as determined by a jury. The legislature responded to this mandate in part. Chapter 195, Laws 1963, provides a procedure for the exercise of the power of eminent domain in the taking of property for public use in the construction and reconstruction of State Trunk and Interstate Highways Systems. The procedure is patterned somewhat after that provided for condemnation of property under the power of eminent domain in the federal courts. Rule 71A, Federal Rules of Civil Procedure. There is no provision in the 1963 statute which could be construed as consent to or authorizing the maintenance of suits against the state except where a "substantial deviation by the Highway Department from the written memoranda or agreement, plans and descriptions * * * amounts to an additional taking or damage." No such situation is here presented. The statute does not authorize a landowner to commence a condemnation proceeding which the state could have commenced against him, but failed to institute.
The court has receded from the majority opinion in Darnall v. State, 79 S.D. 59 , 108 N.W.2d 201 , holding that a landowner has a right of action in the Supreme Court for loss of access to a highway. SDC 1960 Supp. 33.0604. The majority stresses a number of reasons for the reversal of such holding including inadequacy of the remedy, the unreasonable requirement of a specific appropriation out of which to pay the claim and improper forum for determination of fact issues. The irony of this reasoning is that no question of validity or adequacy of remedy is presented. The provisions of SDC 1960 Supp. 33.0604 giving consent by the state to be sued upon claims disallowed by the state auditor were never intended in my opinion to embrace an action in the nature of a condemnation proceeding. This statute is of early origin having been enacted at the first session of the legislature after statehood. Chapter 1, Laws 1890. From its inception until the decision in the Darnall case it had been regarded as a claims statute authorizing the bringing of an action in the Supreme Court upon a claim disallowed by the state auditor and for the payment of which there are funds appropriated. Sigwald *175 v. State, 50 S.D. 37 , 208 N.W. 162 . Plaintiffs herein filed with the state auditor a claim allegedly arising out of the damaging of their property in the amount of $75,000. An eminent domain proceeding admittedly is not the mere enforcement of a claim disallowed by the state auditor and for the payment of which an appropriation has been made. The assessment and awarding of compensation for property taken or damaged are judicial in nature. To hold otherwise, the auditor would have been authorized to issue a warrant for the amount of the claim without notice to parties affected and opportunity to be heard.
The question whether the constitution affords a remedy for the taking or damaging of private property for public purposes is not one of first impression in this court. Hyde v. Minnesota D. & P. Ry. Co., 29 S.D. 220 , 136 N.W. 92 , 40 L.R.A.,N.S. 48; Alcorn v. Edmunds County, 59 S.D. 512 , 241 N.W. 323 ; La Fleur v. Kolda, 71 S.D. 162 , 22 N.W.2d 741 . In the course of his opinion in the Hyde v. Minnesota D. & P. Ry. Co., supra, Judge Whiting said: "The fact, however, remains that the right to recover damages, whether the injury flows from a 'taking' or a 'damaging1 of the property, is a right not coming from the Constitution; the only effects of the constitutional provisions being to prevent the Legislatures from depriving the people of such right, and granting the right, under Constitutions such as ours, of preventing the 'taking' or 'damaging' until the recompense is made. We think there can be no question but that the including of the words 'or damaged' does not broaden the effect of the constitutional provision over what it would be were the word 'taken' alone used and the word 'property' given its broad meaning * * * and that the including of such words does not extend the right of recovery to include that for any injury for which damages could not have been recovered at common law." In harmony with these views, the court concluded that the Constitution does not create a new liability or afford a remedy. Rejecting holdings to the contrary, it was observed: "From the reading of many of the decisions, it would seem that the courts have frequently held that the right of action to recover damages rested upon constitutional provisions similar to the above. Such holdings are certainly erroneous."
*176 The failure of the legislature to provide a suitable remedy to enforce a claim against the state is no argument in favor of a self-executing construction. Immunity from suit acts as a barrier even though a landowner is entitled ordinarily to enforce liability for damages to his property in a common law action. The question then is not one of immunity from liability, but immunity from suit.
I subscribe to the conclusion of the majority that experience has demonstrated the need and desirability of trial and adjudication in the circuit courts of claims against the state for damages resulting from the taking or damaging of private property for public purpose. But I must say with deference that the constitution in my opinion cannot be construed as the majority would have it. The legislature has the constitutional authority and responsibility to designate "in what manner and in what courts suits may be brought against the state" and to impose such conditions and limitations as public policy may seem to dictate. Goodhope v. State, 50 S.D. 643 , 211 N.W. 451 ; Barnsdall Refining Corp. v. Welsh, 64 S.D. 647 , 269 N.W. 853 . If in this proceeding the court has not applied but made law, it is in the sense of result and expediency good law, but I cannot escape the conclusion that we have invaded the province of the legislature.
In Dougherty v. Vidal, 37 N.M. 256 , 21 P.2d 90 , the court considered the question of remedy under comparable constitutional and statutory provisions. The court there said:
"Both legally and practically we consider the state's immunity from suit too important a matter to be trifled with. 'A sovereign is exempt from suit, not because of any formal conception of obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.' Mr. Justice Holmes, in Kawananakoa v. Polyblank, 205 U.S. 349 , 27 S.Ct. 526, 527 , 51 L.Ed. 834 . The Legislature, not to mention the courts, should proceed slowly and with caution in subjecting the state itself to the exigencies of litigation. Langford v. United States, 101 U.S. (11 Otto) 341, 25 L.Ed. 1010 .
*177 "Moreover, a question of jurisdiction arises. This court is the creature of the sovereign state. It can have no natural or presumptive jurisdiction over its creator. Such jurisdiction as we have over the state we must trace to the Constitution or to that branch of government which declares the state's public policy. In the absence of plain consent, to entertain a suit against the state is judicial usurpation. * * *
"We have said so much because of appellant's insistence upon his remediless situation as against an invasion of his constitutional right — a matter to which no court should turn a deaf ear. We are warned, however, that one branch of government may not safely or wisely carry its zeal for the rights of the citizen so far as to encroach upon the functions of a co-ordinate branch. The courts cannot act in a case like this without impairing or destroying the salutary immunity from suit. The Legislature can act in the particular case or by general provision, and with proper regard for the public interest. The Legislature is no doubt as sensitive to injustice as the courts. By unsound or specious reasoning we might arrive at rough justice in a particular case. More often we could do nothing. It is better that all understand that the legislative responsibility is undivided."
Legislative consent to suits against the state has been cautiously and restrictively granted. SDC 1960 Supp. 33.0403 contained in a chapter entitled "Parties to Action" provides that the state may be sued and made a party in quieting title and certain other related actions. The legislature recognizing sovereign immunity from suit has provided a procedure for the investigation of claims arising on contract or tort against the state and for the payment of which there are no available appropriations. The senior circuit judge in a county in which a claim is filed acting as a commissioner of claims is empowered to hear and consider evidence and make findings and recommendations to the legislature. SDC 1960 Supp. 33.43. As indicated, the legislature in the statute (Ch. 195, Laws 1963) implementing the amended *178 eminent domain section of the constitution did not consent to the bringing of damage suits against the state by landowners with the exception of claims for additional taking or damaging caused by deviations from agreements or plans. The legislature has by the statute (SDC 1960 Supp. 33.0604) here considered conferred original jurisdiction in this court in an action which could not otherwise be maintained to compel the state auditor to issue a warrant on the state treasurer when there are funds appropriated for its payment and there is no justification for the auditor's refusal.
It requires an act of the legislature to authorize the expenditure of state funds. Barnsdall Refining Corp. v. Welsh, supra. In the language of the constitution, "no warrant shall be drawn upon the state treasurer except in pursuance of an appropriation for the specific purpose first made." Sec. 9, Art. XI, Constitution; Sigwald v. State, supra. I do not understand the majority opinion to hold that the self-executing construction of the eminent domain section of the constitution dispenses with the necessity of an appropriation to render effective the payment of an award in an inverse condemnation proceeding. In other words, the remedy which now prevails in the circuit court does not to that extent provide redress without legislative action.
In directing payment then of an award, the court must first determine whether funds are specifically made available. In Damall v. State, supra, there is dictum to the effect that the state cannot evade the constitutional provision which guarantees the right to compensation and is obliged to make payment of a judgment rendered in an inverse condemnation proceeding. It does not follow that the state auditor may issue a warrant for its payment when there are no funds made available by appropriation for the specific purpose. Plaintiff in that case did not prevail, but in the present proceeding the payment of an award has been ordered.
The pertinent provisions of SDC 1960 Supp. 28.13A01 as amended by Ch. 135, Laws 1965, providing for acquisition of right of way and payment by the State Highway Commission, read;
*179 "That from and after the effective date of this act, whenever any land or lands, easement in same or material is necessary for right of way in order to make a safe or proper grade, or for widening, changing, relocating, constructing, reconstructing, maintaining or repairing any portion of the State Trunk Highway, or whenever it is necessary for providing cut slopes, borrow pits, channel changes, or to afford unobstructed vision on said State Trunk Highways and at any point of danger to public travel, for light of way and borrow pit, the state of South Dakota, through and by its State Highway Commission * * * shall acquire and pay for same out of state highway funds * * * The cost of said land or material and expense of purchase or condemnation shall be paid as part of the cost of the State Trunk Highway."
A reasonable interpretation of the statute in my opinion is that the term "right of way" refers to the physical property over which a highway extends. Alcorn v. Edmunds County, 59 S.D. 512 , 241 N.W. 323 .
Admittedly, the state did not acquire any "land or lands, easement in same or material" for right of way. This is not to say, however, that the deprivation of access which may be appurtenant to abutting property does not come within the prohibition contained in the eminent domain section of the constitution. We have before us a statute authorizing acquisition by the state of right of way for construction, reconstruction and maintenance of highways and appropriating state highway funds specifically for the payment of such property and consequential damages caused by such taking for right of way. State Highway Commission v. Bloom, 77 S.D. 452 , 93 N.W.2d 572 . The statute does not provide that there shall be ascertainment and payment of damages that may be caused to an abutting property owner as a condition precedent to the reconstruction of an existing right of way or conversion into a limited-access highway and the State Highway Commission is not authorized to adjust and order payment of such damages. As in the case of damages for breach of contract, the statute does not specifically *180 appropriate money for the payment of damages to abutting owners for loss of access. Kansas City Bridge Co. v. State, 61 S.D. 580 , 250 N.W. 343 ; Griffis v. State, supra; Cuka v. State, 80 S.D. 232 , 122 N.W.2d 83 . It can be aptly stated that the legislature has been consistent and has made clear its intention which is all important in statutory interpretation. It has neither consented to suit by an abutting owner nor otherwise provided a method of ascertainment of damages of the nature herein claimed and accordingly has not made funds available for payment. The legislature may make such provisions for suits in cases of injuries caused by state activities as its wisdom dictates and impose reasonable conditions and limitations. Where there is no judicial or other remedy as in the present proceeding, the legislature must be looked to directly for relief.
Since the claim of plaintiffs is adjustable only by the legislature, the proceeding should in my opinion be dismissed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9663619. Public record. Not legal advice.