#25252-aff in pt & modified in pt-DG 

2010 SD 60

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

LAWRENCE COUNTY, a political 

Subdivision of the State of 

South Dakota, Plaintiff and Appellee, 

v. 

CHERIE L. MILLER, MILTON E. 

MITCHELL and HELEN B. NEUFELD, 

co-executors of the estate of 

ELVIN E. MITCHELL and CHRIS MILLER, Defendants and Appellants. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JOHN W. BASTIAN 

Judge 

* * * * 

THOMAS E. BRADY of 

Brady & Pluimer, PC 

Spearfish, South Dakota 

and 

BRUCE OUTKA 

Deadwood, South Dakota Attorneys for plaintiff 

and appellee. 

KENNETH E. BARKER 

MICHAEL A. WILSON of 

Barker Wilson Law Firm, LLP 

Belle Fourche, South Dakota Attorneys for defendants 

and appellants. 

* * * * 

ARGUED MARCH 24, 2010 

 OPINION FILED 07/21/10
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GILBERTSON, Chief Justice 

[¶1.] Lawrence County (County) filed a condemnation petition for a runway 

expansion project to allow the use of Class BII Large aircraft at Black Hills 

Airport/Clyde Ice Field (airport). The matter was scheduled for a jury trial after 

County and the landowners could not agree on the value of the 206 acres 

condemned by the petition. County filed a motion for partial summary judgment to 

preclude private landowners from introducing evidence and testimony regarding the 

effects of landing and takeoff height restrictions on the remainder of the adjacent 

land. County did not draft or enact landing and takeoff height restriction 

ordinances at the time the condemnation petition was filed, but could be required to 

do so in the future by the Federal Aviation Administration (FAA). Landowners 

resisted and also sought to introduce evidence of additional height restrictions that 

could be imposed if the airport were to expand to permit Class C and D aircraft 

operations. The trial court granted County’s motion. Landowners appeal. We 

affirm Issue 1 but modify the trial court’s ruling as to Issue 2 because landowners’ 

claim was not a justiciable controversy at the time of trial, but may become so at 

some point in the future. 

FACTS 

[¶2.] In September 2007, County filed a petition to condemn approximately 

206 acres of real property for an airport runway expansion project. The 206 acres, 

located north of and contiguous to the airport, were part of a larger parcel of 

approximately 515 acres owned by the estate of Elvin E. Mitchell and Cris Miller 
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(Owners). County’s resolution 2006-38 proclaimed its purpose in condemning the 

land: 

AND WHEREAS, the purpose of the proposed action is to 

enhance the utility and safety of Black Hills Airport/Clyde Ice 

Field to accommodate current and projected levels of aviation 

activity by the design aircraft family and provide Instrument 

Flight Rules capability. The need for the proposed action is 

related to compliance with FAA standards for BII Large aircraft, 

specifically runway length and instrument approaches. 

The resolution described a taking of only the 206 acres of Owners’ 515-acre tract. 

The resolution did not include any reference to the airspace above the remaining 

309 acres. 

[¶3.] The 515-acre tract had been used for ranching for three generations at 

the time of the condemnation. However, the highest and best use of the land, as 

determined by both parties, was low density, or large-lot, residential use due to its 

proximity to a development area around Spearfish, South Dakota. This major 

growth area had experienced significant expansion in both population and 

development in the prior decade. 

[¶4.] The parties could not agree on the “before” and “after” value of the 

complete 515-acre tract from which the 206 acres were taken. Owners’ appraiser 

concluded the value of the taking was $1,683,000. Owners’ appraiser did not 

consider any diminution in the value of the remaining 309 acres in the event 

County’s ordinances imposed height restrictions for the landing and takeoff for 

Class BII Large aircraft, or if it were to permit larger aircraft of Category C and D 

level aircraft to use the runway, which could impose additional height restrictions 

on the remaining acreage at some point in the future. County’s appraiser also did 
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not consider any diminution in value for the remaining 309 acres due to the 

potential for future height restrictions. County’s appraised value of the condemned 

206 acres was $1,173,058. Trial on the amount of damages for the taking was held 

on April 2, 2009. The jury returned a verdict for the landowners for the taking of 

the 206 acres in the amount of $1,218,983.65. 

[¶5.] Prior to the trial, on November 5, 2008, County filed a motion for 

partial summary judgment on the alleged effect on Owners’ remaining 309 acres. 

County asked in its motion “that any claim of taking by alleged or supposed loss of 

use by reason of alleged height restrictions or any other collateral impact of the 

runway extension project be dismissed.” It further sought an order precluding 

Owners from arguing or offering evidence of any such claim during the jury trial on 

the value of the 206 condemned acres. County also sought to preclude the 

admission of any additional expert witnesses or reports as the parties were required 

to disclose expert witnesses by March 31, 2008, and any extension would delay the 

trial beyond the scheduled date.1

[¶6.] Owners resisted the motion and hired Clyde Pittman, a national expert 

in determining structural height limitations resulting from FAA regulations, to 

evaluate the impact of the runway expansion on the remaining 309 acres. His 

report indicated that the extension of the runway for Class BII Large aircraft would 

result in height restrictions on the remaining 309 acres in order to comply with FAA 

takeoff and landing patterns and safety requirements. Pittman also indicated that 

1. County also subsequently filed a motion in limine seeking an order 

precluding the above-mentioned evidence from being admitted at trial. 
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the expansion as planned would enable the use of Category C level aircraft without 

requiring the condemnation of more land, but would impose additional height 

restrictions on the remaining 309 acres. The use of Category C aircraft would 

enlarge the airport circling area by an additional 0.2 nautical miles from the 

runway and extend out farther over the remaining 309 acres. If County eventually 

expanded the airport for the use of Category D level aircraft, the circling area would 

extend 2.3 nautical miles from the runway. Pittman’s report further indicated such 

an expansion, if undertaken, would extend completely over the remaining 309 acres. 

He also opined the expansion would subject the 309 remaining acres to actual 

physical invasion by aircraft arriving at and departing from the airport. FAA 

regulations would in turn impose height limitations on the remaining 309 acres. 

However, no evidence was presented by Owners of the diminution in value of the 

remaining 309 acres due to height restrictions that might be imposed in the future. 

[¶7.] The trial court granted County’s motion for partial summary judgment 

and Pittman’s report was not considered by the jury in determining the value of the 

condemned 206 acres. The trial court concluded that Pittman’s report was 

conjecture and speculation. It further concluded that Owners’ evidence of possible 

future airspace intrusion was a “mere general allegation[ ]” and did not set forth 

specific facts to show genuine issues of material fact for trial on the issue of the 

collateral impact of the runway extension project. 

[¶8.] Owners appeal raising the following issues: 

1. Whether a factual basis existed to support a claim for additional 

compensation for the invasion of the airspace over Owners’ 

remaining 309 acres. 
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2. Does the decision of the trial court preclude future claims by 

Owners for the taking of air space over the remaining 309 acres. 

STANDARD OF REVIEW 

[¶9.] Summary judgment is properly granted “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if 

any, show that there is no genuine issue as to any material fact, and that the 

moving party is entitled to judgment as a matter of law.” De Smet Farm Mut. Ins. 

Co. of S.D. v. Gulbranson Devel. Co., Inc., 2010 SD 15, ¶16, 779 NW2d 148, 154-55 

(quoting Discover Bank v. Stanley, 2008 SD 111, ¶16, 757 NW2d 756, 761-62). On 

review, this Court will affirm the trial court’s grant of a motion for summary 

judgment when there are no genuine issues of material fact and the legal questions 

have been correctly decided. Id. We view all reasonable inferences drawn from the 

facts in favor of the non-moving party. Id. “The burden is on the moving party to 

clearly show an absence of any genuine issue of material fact and an entitlement to 

judgment as a matter of law.” Id. 

ANALYSIS AND DECISION 

[¶10.] 1. Whether a factual basis existed to support a claim for 

additional compensation for the invasion of the airspace 

over Owners’ remaining 309 acres. 

[¶11.] SDCL 50-13-3 establishes certain private property rights over 

airspace. “The ownership of the space above the lands and waters of this state is 

declared to be vested in the several owners of the surface beneath, subject to the 
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right of flight described in section 50-13-4.”2 SDCL 50-13-3. Such property rights, 

however, have altitudinal limits.3

[¶12.] Under Article VI, section 13 of the South Dakota Constitution, 

“[p]rivate property shall not be taken for public use, or damaged without just 

compensation[.]” 

Accordingly, the damage clause of the South Dakota 

Constitution allows a property owner to seek compensation “‘for 

the destruction or disturbance of easements of light and air, and 

of accessibility, or of such other intangible rights as he enjoys in 

2. SDCL 50-13-4 provides: 

Flight in aircraft over the lands and waters of this state is 

lawful, unless at such a low altitude as to interfere with the 

then existing use to which the land or water, or the space over 

the land or water, is put by the owner, or unless so conducted as 

to be imminently dangerous to persons or property lawfully on 

the land or water beneath. 

3. SDCL 50-13-11 provides: 

There is hereby established and exists pursuant to acts of Congress (49 

USC §§ 1301-1302, 1303-1304, and 1347-1348(a)(c)) and confirmed by 

this enactment a public highway for air commerce in the navigable air 

space over all the land in South Dakota wherein the public right of 

freedom of air navigation and transit by aircraft is herein established, 

defined and confirmed. 

However, SDCL 50-13-12 provides: 

The air space established by § 50-13-11 consists of the space above an 

altitude of one thousand feet above the highest obstacle within a 

horizontal radius of two thousand feet from the aircraft to the ground 

when over congested areas such as municipalities or settlements, or an 

open air space assembly of persons, and over other than a congested 

area the air space above an altitude of five hundred feet above the 

surface except over open water or sparsely populated areas, which in 

such event the freedom of transit of an aircraft is no closer than five 

hundred feet over any person, vessel, vehicle, or structure. 
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connection with and as incidental to the ownership of the land 

itself.’”

Hall v. State, 2006 SD 24, ¶14, 712 NW2d 22, 27 (quoting Hurley v. State (Hurley 

II), 82 SD 156, 143 NW2d 722, 725 (1966)). However, the ultimate burden of proof 

as to damages in a takings claim rests upon the landowner. Basin Elec. Power Coop., Inc. v. Cutler, 88 SD 214, 217 NW2d 798, 801 (1974). 

[¶13.] Owners argue County, as the moving party, was required to show the 

absence of genuine issues of material fact before it triggered Owners’ burden to 

establish genuine issues of material fact. They further argue the trial court 

improperly shifted the burden to Owners, as the non-moving party resisting 

County’s motion for summary judgment, by requiring Owners to show genuine 

issues of material fact before allowing the issue to go to the jury. 

[¶14.] While we often distinguish between the moving and non-moving 

party in referring to the parties’ summary judgment burdens, 

the more precise inquiry looks to who will carry the burden of 

proof on the claim or defense at trial. Entry of summary 

judgment is mandated against a party who fails to make a 

showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear 

the burden of proof at trial. 

Gulbranson Devel. Co., 2010 SD 15, ¶16, 779 NW2d at 155 (quoting Zephier v. 

Catholic Diocese of Sioux Falls, 2008 SD 56, ¶6, 752 NW2d 658, 662-63). The 

resisting party is required to “show that they will be able to place sufficient 

evidence in the record at trial to support findings on all the elements on which they 

have the burden of proof.” Bordeaux v. Shannon County Schools, 2005 SD 117, ¶14, 

707 NW2d 123, 127 (quoting Chem-Age Industries, Inc. v. Glover, 2002 SD 122, 

¶18, 652 NW2d 756, 765). The resisting party will be unable to overcome a motion 
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for summary judgment with mere general allegations and denials. Id. (quoting 

Hughes-Johnson Co. v. Dakota Midland Hosp., 86 SD 361, 195 NW2d 519, 521 

(1972)).

[¶15.] Accordingly, Owners were required to present facts, rather than 

“unsupported conclusions and speculative statements, which do not raise a genuine 

issue of fact.” See id. (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel 

Co., Inc., 511 NW2d 567, 569 (SD 1994)). The trial court concluded in its 

memorandum decision that the evidence presented by Owners through their expert 

witness Pittman was insufficient to show that the airspace over their remaining 309 

acres would be invaded “in such a manner as to prohibit the use of land for any 

purpose, thereby resulting in a complete loss to the landowner.” It further 

concluded there was no evidence submitted to support Pittman’s opinion that after 

the taking Owners’ “property is one of few properties owned privately which is 

subject to severe and carefully guarded height limitations,” or how the alleged 

height limitations would affect the use of Owners’ land. 

[¶16.] We agree with the trial court that Owners submitted nothing more 

than unsupported conclusions and speculative statements in resistance to County’s 

motion for partial summary judgment. This Court’s eminent domain precedents 

have held that severance damages will not be automatically presumed where part of 

the parcel is taken or damaged. David Gilbertson, Note, Condemnation of 

Agricultural Land in South Dakota, 20 SD Law Rev 623, 632 (1975). 

Damages in an eminent domain proceeding must include 

present and prospective damages caused by the condemnor but 

not those which are speculative or remote or damages which are 

sentimental only. Speculative damages are those in which 
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either the very existence of the damage is doubtful or the 

pecuniary seriousness of the damages is grossly conjectural. 

The prospective uses of the property which may be considered in 

establishing just compensation must be so reasonably probable 

as to have an effect on the present market value of the land; a 

purely imaginative or speculative use cannot be considered. 

There must be a possibility significant enough to be a practical 

consideration which would actually influence prices. 

Id. (citations omitted). 

[¶17.] Here, the lack of evidence goes, not to the issue of severance damages, 

but to the alleged invasion itself. We note that there is nothing in the 

condemnation documents filed by County or subsequent pleadings that sought to 

limit in any way the use of the airspace over Owners’ remaining 309 acres. All that 

Owners provided was speculation about a potential future invasion of the airspace 

and no evidence as to what damage would result to the remaining 309 acres by any 

ordinances that County would enact for the runway expansion. While Pittman’s 

testimony indicated that other conditions would need to occur in the future before 

some of the damages might result, Owners provided no evidence to support 

Pittman’s contention that these conditions would occur, or if so, when. First, 

County would have to enact ordinances for Class BII Large aircraft that imposed 

height restrictions on the 309 remaining acres. Next, Pittman’s affidavit stated 

that it was “expected that this extension will support larger and faster aircraft at 

least to Category ‘C’ level . . . [if] the plan is to land Category ‘D’ aircraft,” and “[i]t 

is also not beyond reason that there is a plan to add more complex instrument 

procedures.” (emphasis added.) However, County’s resolution made it clear the 

current expansion required only the taking of the 206 acres and the airspace above 

that portion of the 515-acre parcel for the purpose of permitting Class BII aircraft to 
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utilize the airport. Because Owners failed to present evidence to support the claim 

that Class BII Large aircraft would infringe upon the airspace over the remaining 

309 acres, or that Category C and D aircraft would use the airport, there was no 

damage to the remaining 309 acres at the time of the condemnation of the 206 

acres. 

[¶18.] Owners analogize the facts of their case to the facts in Benson v. State, 

2006 SD 8, 710 NW2d 131. In Benson, landowners brought an inverse 

condemnation action against the State in response to the enactment of SDCL 41-9-

1.1, which decriminalized the shooting of small game “that are in flight over private 

land if the small game has either originated from or has taken flight from the 

highway or public right-of-way or if the small game is in the process of flying over 

the highway or public right-of-way.” Id. ¶8, 710 NW2d at 138 (quoting SDCL 41-9-

1.1). The landowners in Benson alleged the shots fired over their land invaded the 

airspace over their property to such a degree that a per se regulatory taking 

occurred for which just compensation was required. Id. ¶47, 710 NW2d at 149. In 

Benson it was undisputed that some shots were fired over landowners’ property 

during hunting season. Id. ¶52, 710 NW2d at 151-52. This Court ultimately 

determined that the conduct was that of private citizens engaged in hunting 

activities, rather than actions of the State. Id. ¶83, 710 NW2d at 161. However, 

although the intrusion onto the land in Benson was real, it was not as a result of 

the State’s enactment of SDCL 41-9-1.1. Id. 

[¶19.] The authority granted to County for condemnation is set forth in SDCL 

ch. 21-35. In order to invoke the right to condemn private property, SDCL 21-35-2 
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requires County’s petition to “contain a description of the property to be taken or 

damaged.” It shall also set forth “the purpose for which the property is to be taken 

or damaged.” Here, the petition only sought to acquire the 206 acres with its stated 

purpose being for the use of BII Large aircraft and Owners have not shown an 

actual intrusion upon the remaining 309 acres by Class BII Large, Class C, or Class 

D aircraft at this time. Nor have Owners shown that County has taken any 

affirmative steps to allow Class C and Class D aircraft to use the runway. All that 

Owners allege is that the enactment of undrafted ordinances could impose height 

restrictions over the 309 remaining acres. There is no comparison between the 

actual shots fired in Benson to the theoretical use of an airfield by aircraft that are 

not currently permitted to use the airport.

[¶20.] The trial court concluded Owners failed to show they would be able to 

place sufficient evidence in the record at trial to create a question of material fact 

on the type and amount of damage to the remaining 309 acres from County’s airport 

expansion plan. Owners had the burden to place such evidence into the record in 

order to effectively resist County’s motion, as Owners would have been required to 

establish the 309 acres were damaged and the diminution in value at trial. See id. 

The trial court was correct when it found that Owners failed to adequately resist 

County’s motion for summary judgment with regard to severance damages resulting 

from an air space taking to the remaining 309 acres. 

[¶21.] With regard to calculating the alleged damages, without a formal 

declaration of taking by the governmental entity, “the correct date or time that 

compensation is to be ascertained is the date of taking or damaging-or here the 
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substantial interference with the owner’s [property] rights.” Hurley v. State 

(Hurley I), 81 SD 318, 134 NW2d 722, 784-85 (1965). Here, that event has not yet 

occurred and may never occur if County does not enact ordinances that impose 

airspace restrictions. Severance damages of the air rights from the remaining 309 

acres are not “‘manna from heaven’; it must be based on actual loss of value.” See 

Basin Elec. Power Co-op, Inc., 88 SD 214, 217 NW2d at 801. 

[¶22.] 2. Does the decision of the trial court preclude future 

claims by Owners for the taking of air space over the 

remaining 309 acres. 

[¶23.] Owners contend that while a real injury has been suffered by the 

remaining 309 acres, the extent of the injury was unknown at the time County filed 

its motion for partial summary judgment. Therefore, Owners argue there can be no 

preclusive effect preventing a subsequent condemnation or inverse condemnation 

action if County enacts future restrictive regulations pertaining to Class BII Large 

or Category C and D aircraft. County argues Owners may have had a viable claim 

for a taking of airspace over the remaining 309 acres, but failed to submit 

admissible evidence of the diminution, if any, in its market value. Thus, County 

contends the claim was not factually supported, but nonetheless could have been, 

and as a result the claim is precluded in the future under the doctrine of res 

judicata because the order granting summary judgment was a final judgment on the 

merits of Owners’ claim. In the previous issue we concluded there was no current 

factual basis to support a claim for damages to the airspace above the remaining 

309 acres. There remains the issue of the legal effect of the trial court’s dismissal of 

the unsupported claim by summary judgment. 
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[¶24.] As this Court recently noted, “[t]he doctrine of res judicata bars any 

‘attempt to relitigate a cause of action by the parties or one of the parties in privity 

to a party to an earlier suit.’” Dakota Plains AG Center, LLC v. Smithey, 2009 SD 

78, ¶19, 772 NW2d 170, 179 (quoting Speck v. Federal Land Bank of Omaha, 494 

NW2d 628, 633 (SD 1993)). Res judicata “embodies both merger and bar.” Id. 

(quoting Black Hills Jewelry Mfg. Co. v. Felco Jewel Indus., Inc., 336 NW2d 153, 

157 (SD 1983)). The preclusive effect of res judicata extends to “an issue actually 

litigated or which could have been properly raised and determined in a prior 

action.” Id. Furthermore, 

[i]n order for res judicata to apply, the cause of action in the 

prior litigation must be the same as the cause of action in the 

subsequent litigation. This Court adopted the broad test in 

Hanson v. Hunt Oil Co., 505 F2d 1237 (8thCir 1974), for 

determining if both causes of action are the same. A cause of 

action is comprised of the facts that gave rise to, or established, 

the right the party seeks to enforce. If the wrong sought to be 

redressed is the same in both actions, then res judicata applies. 

Id. ¶20, 772 NW2d at 179-80 (citing Black Hills Jewelry Mfg. Co., 336 NW2d at 157) 

(internal citations omitted). 

[¶25.] In the instant case, County’s motion for partial summary judgment 

requested an order from the trial court “dismissing a purported or alleged claim of 

taking by reason of alleged or purported height restrictions that [Owners’] expert or 

experts believe might occur upon or after completion of the runway extension 

project on Black Hills Clyde Ice Field.” County further requested the order declare 

“that any claim of taking by alleged or supposed loss of use by reason of alleged 

height restrictions or any other collateral impact of the runway extension project be 

dismissed, and that [Owners] be precluded from arguing or offering evidence of any 
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such claim.” The trial court granted County’s motion for partial summary judgment 

and stated “that [Owners’] evidence of possible future airspace intrusion are [sic] 

‘mere general allegations’ which do [sic] not set forth specific facts to prevent 

issuance of a judgment.” (emphasis added.) 

[¶26.] Under a claim of inverse condemnation, owners are entitled to just 

compensation for a de facto taking of a portion of their remaining property at the 

point such a taking actually occurs. Hurley I, 81 SD 318, 134 NW2d at 784-85.

“Landowners . . . have a claim of right to their property. Thus, their allegation that 

the [County’s] actions result in an unconstitutional taking is sufficient to present a 

justiciable controversy.” Benson, 2006 SD 8, ¶16, 710 NW2d at 140. Such a claim 

may be brought directly by a landowner and does not wait upon a formal 

condemnation action by the governmental entity which may, or may not, ever occur. 

Hurley I, 81 SD 318, 134 NW2d at 784-85. 

[¶27.] A taking of an airspace easement over private property occurs when 

the actions of the government create a “direct and immediate interference with the 

use and enjoyment of the land.” Branning v. United States, 228 CtCl 240, 654 F2d 

88, 97 (1981) (citing Lacey v. United States, 219 CtCl 551, 553, 595 F2d 614, 615 

(1979)). See also Griggs v. Allegeny County, 369 US 84, 82 SCt 531, 7 LEd2d 585 

(1962); United States v. Causby, 328 US 256, 66 SCt 1062, 90 LEd 1206 (1946). 

Most cases in this arena have dealt with the resulting noise disturbance created by 

overhead flights. See Branning, 654 F2d at 99. However, the case law on noise 

disruptions, whether as a taking, disruption in the reasonable use of the land, or 
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damage to the value of the land, is analyzed under the same legal rubric as other 

takings. Id. at 98. 

[¶28.] Case law on airspace easements created by noise holds that when a 

further taking occurs after an initial claim of taking has been granted or denied, a 

claim for an additional easement may prevail. Id. at 100 (citing Avery v. United 

States, 330 F2d 640 (CtCl 1964)). “[T]he introduction of larger, heavier, noisier 

aircraft can constitute a fifth amendment taking of an additional easement even 

though the noisier aircraft do not violate the boundaries of an earlier easement.” 

Id. (citing Avery, 330 F2d 640). While in the context of noise, the principal applies 

to height restrictions by analogy. If the government institutes restrictions, whether 

by noise or height limitations, over private property that cause damage or a further 

taking different from an easement taken earlier in time, an additional taking occurs 

for which just compensation may be owed. See id. at 101. 

[¶29.] The County cannot have it both ways and use the first condemnation 

petition to exact a future taking or damage to the 309 acres not listed in its petition. 

Permitting County’s argument to prevail would result in a future taking without 

compensation for the Owners. County has filed a petition seeking to acquire title to 

and pay just compensation for the 206 acres. As a part of this proceeding, it has 

steadfastly denied it owes any further compensation for severance damages for air 

easements to the remaining 309 acres. We agree with the trial court’s conclusion 

upholding this argument. The County cannot argue both that the time for claiming 

severance damages has somehow passed with this litigation and that no future 

claims are allowed under a doctrine of res judicata should such restrictions be put in 
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place in the future. To rule otherwise would be a direct violation of Article VI, 

section 13 and the Owners’ private property rights. It would also be in direct 

violation of SDCL 21-35-2, which has consistently required the explicit description 

of the property to be condemned. See City of Sioux Falls v. Missouri Basin Mun. 

Power, 2004 SD 14, ¶10, 675 NW2d 739, 742; see also Lewis v. St Paul M. & M. Ry. 

Co., 5 SD 148, 58 NW 580 (1894) (holding, prior to enactment of SDCL 21-35-2, that 

description must be explicit). 

[¶30.] In Missouri Basin Mun. Power Agency, we had the opportunity to 

address the issue of the adequacy of a legal description in a condemnation petition. 

Id. ¶10, 675 NW2d at 742. Citing SDCL 21-35-2, we held the description is 

mandatory and construed the statute to require a detail of the description. That 

[d]oes not mean meticulous accuracy, but substantial accuracy—

that certainty by means of which a reasonably competent person 

could take the instrument and therefrom, aided by such 

inquiries as it suggests, locate the identical property . . . the 

certainty required in the description of the land in a 

condemnation proceeding “is of the same nature as that required 

in conveyances of land, so that a surveyor could go upon the land 

and mark out the land designated.” 

Id. ¶12, 675 NW2d at 742-43 (citations omitted). Failure to comply with this 

adequacy in the legal description results in a lack of jurisdiction by the trial court to 

entertain the condemnation action. Id., ¶11, 675 NW2d at 742. 

[¶31.] Thus, the trial court had jurisdiction to adjudicate the condemnation 

action over the 206 acres as it was adequately described in County’s petition. 

However, the trial court did not have jurisdiction to maintain an action over any 

portion of the 309 acres as that parcel was not described in County’s petition and 

Landowners did not submit sufficient evidence to support a regulatory severance 
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taking.4 No res judicata or preclusion claim as to the 309 acres can arise from a 

proceeding over which there was no jurisdiction from the start. 

[¶32.] In conclusion, Owners have received just compensation for the 206 

acres taken by County. All that the trial court’s order precludes is a claim by 

Owners for “possible future airspace intrusion” for which no plans, airport authority 

resolution, or condemnation petition currently exist. (emphasis added.) If and 

when County actually attempts to impose height restrictions by enacting plans, 

passing ordinances or resolutions, or filing a new condemnation petition, or the use 

of Class C and Class D aircraft occurs, Owners are not barred by res judicata from 

bringing a new takings claim. 

[¶33.] Affirmed as modified.

[¶34.] KONENKAMP, ZINTER and SEVERSON, Justices, concur. 

[¶35.] MEIERHENRY, Justice, concurs in part and dissents in part. 

MEIERHENRY, Justice (dissenting in part and concurring in part). 

[¶36.] I concur with the majority opinion on issue two that res judicata does 

not bar the Owners from future condemnation proceedings for damages to the 309 

acres. I disagree that the summary judgment order should be affirmed. If 

anything, the County’s motion for summary judgment should have been denied 

4. This would not preclude jurisdiction over a claim by a landowner for 

severance damages in a proper case, or for a claim of inverse condemnation 

because such a claim is initiated by the landowner and not the condemnor 

and is jurisdictionally self-executing under Article VI, section 13 of the South 

Dakota Constitution. See Hurley I, 82 SD 156, 143 NW2d at 729. 
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because the issue of damages to the 309 acres was not ripe for determination. The 

majority opinion concludes that the trial court did not have jurisdiction to 

adjudicate condemnation over the 309 acres not described in the petition. Supra

¶32. I agree. But under this same analysis, the trial court did not have jurisdiction 

to enter summary judgment on that issue. 

[¶37.] The issue of damages to the 309 acres was not ripe because of the 

County’s handling of the case, not because of some failure by the Owners. The 

County only defined its taking to include the 206 acres. If the County contemplated 

aircraft invading the airspace over the remaining property, the County certainly did 

not include that airspace in the declaration of taking. Likewise, no zoning 

ordinances or airport approach plans were adopted. Nevertheless, the summary 

judgment order against the Owners still stands under the majority opinion’s 

holding. Because the trial court lacked jurisdiction and the issue was not ripe, I 

would reverse and vacate the summary judgment order.