#23669-a-RWS

2006 SD 10

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STEVE KRIER, Plaintiff and Appellant,

 v.

DELL RAPIDS TOWNSHIP, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE WILLIAM J. SRSTKA, JR.

Judge

* * * *

STEVE KRIER

Sioux Falls, South Dakota Pro se appellant.

DOUGLAS M. DEIBERT of

Cadwell, Sanford, Deibert & Garry

Sioux Falls, South Dakota Attorneys for defendant

and appellee.

* * * *

CONSIDERED ON BRIEFS 

ON NOVEMBER 7, 2005

 OPINION FILED 01/25/06
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SABERS, Justice

[¶1.] Steve Krier (Krier) appeals the circuit court’s grant of summary 

judgment to Dell Rapids Township on his claims of nuisance and inverse 

condemnation. We affirm. 

Facts

[¶2.] In 1980, the Dell Rapids Town ship (Township) received a section of 

Highway 115 from the State of South Dakota. The Township named that section 

“Garfield Avenue.” At issue in this case is the portion of Highway 115, renamed

Garfield Avenue, which runs south from Dell Rapids to South Dakota Highway 115. 

[¶3.] Over the years, Garfield Avenue fell into a state of disrepair. A portion 

of the road was surfaced in blacktop, but was badly cracked. At the point where the

blacktop ended, the road consisted of dirt, grass, and sinkholes. The Township used 

a gate to block this portion of the road because it believed it was hazardous.

[¶4.] In 1997, Krier built a house on four acres just south of Dell Rapids, 

adjacent to Garfield Avenue. To the north of Krier’s property was the portion of 

Garfield Avenue that was cracked blacktop. To the south of Krier’s property was 

the portion of Garfield Avenue that was blocked by the gate. As a result, there was 

little traffic on the portion of Garfield Avenue that abutted the Krier property.

[¶5.] In 2001, the Township decided to repair and resurface Garfield 

Avenue. Instead of resurfacing Garfield Avenue with asphalt, the Township 

decided to use gravel. The road was bladed, gravel was put down, and the road was 

bladed again. The entire one mile portion of Garfield Avenue is now a gravel road. 
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[¶6.] Krier was upset with the Township because he wanted Garfield 

Avenue to be a hard surface road. According to Krier, the gravel made the ruts and 

potholes worse. Krier complains of an accumulation of dust and dirt on his 

property.

[¶7.] Krier brought suit against the Township alleging (1) that Garfield 

Avenue has become a nuisance in violation of SDCL 21-10-1, and (2) that the 

Township was in violation of SDCL 31-13-49 for refusing to return Garfield Avenue 

to “its original paved surface.” Krier requested damages for loss of enjoyment and 

use of his property and an order directing the Township to return Garfield Avenue

“to a condition that no longer constitutes a nuisance.”1

[¶8.] The Township counterclaimed that its actions in maintaining the road 

were reasonable. Following discovery, the Township moved for summary judgment,

which was granted. 

[¶9.] The circuit court relied on SDCL 21-10-2 in ruling the Township’s 

actions did not constitute a nuisance, and that although the Township had a duty to 

maintain Garfield Avenue, Krier had no right to dictate the details.

[¶10.] Krier amended his complaint to state an inverse condemnation claim 

and requested damages in the amount of $30,000 for loss of value to his property. 

Both parties moved for summary judgment.

[¶11.] The circuit court granted summary judgment for the Township and 

denied Krier’s motion. The court found no physical invasion of Krier’s property 

 

1. Krier amended his complaint to request damages for an alleged incident in 

which a Township snow plow damaged his mailbox and landscaping. That 

matter is not before us on appeal. 
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occurred and that Krier failed to prove injuries peculiar to his land, not suffered by 

the public as a whole. The Township moved for taxation of disbursements. The 

circuit court granted the motion and awarded the Township $657.08 in taxable 

disbursements. Krier raises the following issues on appeal:

1. Whether the circuit court erred in granting summary judgment

for the Township on the nuisance claim.

2. Whether the circuit court erred in granting summary judgment 

for the Township on the inverse condemnation claim.

3. Whether the circuit court erred in taxing disbursements in favor 

of the Township.

 

Standard of Review

[¶12.] Summary judgment is authorized “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.” SDCL 15-6-56(c). All reasonable 

inferences derived from the facts are viewed in the light most favorable to the 

nonmoving party. Northstream Invs., Inc. v. 1804 Country Store Co., 2005 SD 61, 

¶11, 697 NW2d 762, 765 (citing Morgan v. Baldwin, 450 NW2d 783, 785 (SD 1990)). 

However, the nonmoving party must present facts showing that a genuine and 

material issue for trial exists. Cromwell v. Rapid City Police Dept., 2001 SD 100, 

¶7, 632 NW2d 20, 23. Once we determine that the material facts are undisputed, 

our review is limited to whether the law was correctly applied. Schulte v. 

Progressive N. Ins. Co., 2005 SD 75, ¶5, 699 NW2d 437, 438. We will affirm the 

trial court if there is any legal basis to support its ruling. Id. (citing Kobbeman v. 

Oleson, 1998 SD 20, ¶4, 574 NW2d 633, 635).
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[¶13.] 1. Whether the circuit court erred in granting summary 

judgment for the Township on the nuisance claim.

[¶14.] Krier argues that by failing to pave Garfield Avenue, the Township is 

in violation of its duty to maintain it, which is a nuisance.

[¶15.] Nuisance is defined in SDCL 21-10-1 as:

[U]nlawfully doing an act, or omitting to perform a duty,

which act or omission either:

(1) Annoys, injures, or endangers the comfort, repose, health, 

or safety of others;

(2) Offends decency;

(3) Unlawfully interferes with, obstructs, or tends to obstruct, or 

renders dangerous for passage, any lake or navigable river, bay,

stream, canal, or basin, or any public park, square, street, or

highway;

(4) In any way renders other persons insecure in life, or in the use of

property.

(emphasis added). 

[¶16.] SDCL 31-13-1 provides that “[t]he board of township supervisors shall 

construct, repair, and maintain all of the secondary roads within the township.” 

The word “shall,” creates an affirmative duty on the Township to repair and 

maintain Garfield Avenue. 

[¶17.] In Willoughby v. Grim, we examined SDCL 31-13-1 and held that 

although a Township can be compelled to maintain secondary roads, courts cannot 

impose specific standards by which the repairs are to be made. 1998 SD 68, ¶1, 581 

NW2d 165, 166.2 Because no standards for road repair and maintenance exist in 

 

2. Although Willoughby involved an action for mandamus, it applies because 

Krier’s nuisance action is based on the Township’s alleged omission to 

perform a duty.
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our laws, “[d]etails for repairing and maintaining secondary roads [ ] remain within 

the conscientious direction of . . .” the Township.3 Id. ¶10. Krier has no legal right 

to dictate the manner in which the repairs are made.

[¶18.] The record shows that the Township has fulfilled its duty to maintain 

Garfield Avenue. The road has been graveled and graded on several occasions. The 

Township was under no obligation to make the repairs in accord with Krier’s 

demands. The trial court did not err in granting summary judgment on the 

nuisance claim. 

[¶19.] Krier argued in the alternative that the Township’s affirmative act of

graveling Garfield Avenue constituted a nuisance. However, SDCL 21-10-2 is clear 

that “[n]othing which is done or maintained under the express authority of a statute 

can be deemed a nuisance.” Because the Township was repairing and maintaining 

Garfield Avenue pursuant to a statutory obligation, its acts do not constitute a 

nuisance. See Hedel-Ostrowski v. City of Spearfish, 2004 SD 55, ¶13, 679 NW2d 

 

3. Krier claims the Township neglected its duty under SDCL 31-13-49. That 

statute provides:

In the resolution of necessity it may be provided that the township

will pay any portion or all of the cost of resurfacing, rebuilding,

or repaving the portion of any street in which pavement has previously

been placed or which has been previously constructed within the

township.

Id. Krier does not argue that the Township has refused to pay for any 

portion of resurfacing Garfield Avenue. Instead, he argues that the 

Township is under an obligation to repave it. However, the statute is clear 

that the Township can “resurfac[e], rebuild[], or repav[e].” Id. Thus, Krier’s 

contentions are at odds with the express language of the statute. 
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491, 497 (“The legislature exempts from the definition of nuisance those things done 

or maintained under statutory authority”). 

[¶20.] 2. Whether the circuit court erred in granting summary

judgment in favor of the Township on Krier’s inverse

condemnation claim.

[¶21.] Krier brought his inverse condemnation claim under Article VI, section 

13 of our State Constitution, which provides: “Private property shall not be taken 

for public use, or damaged, without just compensation which will be determined 

according to legal procedure established by the Legislature and according to § 6 of 

this article.” Article VI, section 13 of our Constitution differs from the Fifth 

Amendment of the Federal Constitution in two key respects. First, and although 

not relevant to the present issue, we impose “public use” requirements that are 

more strict than the federal baseline. Benson v. State, 2006 SD 8, ¶42, ___ NW2d 

___ (citing Ill. Cent. R.R. Co. v. E. Sioux Falls Quarry, 33 SD 63, 144 NW 724 (1913) 

(adopting the “use by the public” test)). Second, our Constitution requires that the 

government compensate a property owner not only when a taking has occurred, but 

also when private property has been “damaged.” The Federal Constitution does not 

contain a “damage” clause. Compare SD Const art VI, § 13 with US Const amend 5.

[¶22.] Under the Federal Constitution, a plaintiff must assert one of four 

types of takings: (1) a per se physical taking under Loretto v. Teleprompter 

Manhattan CATV Corp., 458 US 419, 102 SCt 3164, 73 LEd2d 868 (1982); (2) a per 

se regulatory taking which deprives a landowner of all economically viable use of his 

property pursuant to Lucas v. South Carolina Coastal Council, 505 US 1003, 1014, 

112 SCt 2886, 2895, 120 LEd2d 798 (1992); (3) a regulatory taking under Penn 
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Central Transportation Co., v. City of New York, 438 US 104, 98 SCt 2646, 57 

LEd2d 641 (1978); or (4) a land-use exaction violating the standards set forth in 

Nollan v. California Coastal Commission, 483 US 825, 831-32, 107 SCt 3141, 3147-

49, 97 LEd2d 677 (1987), and Dolan v. City of Tigard, 512 US 374, 384, 114 SCt 

2309, ___, 129 LEd2d 304 (1994). Benson, 2006 SD 8, ¶41, __ NW2d at __ (citing 

Lingle v. Chevron USA Inc., ___US___, 125 SCt 2074, 2087, 161 LEd2d 876 (2005)). 

[¶23.] Our case lawprovides that the “damage” clause in our State 

Constitution affords more rights to our citizens than the Fifth Amendment to the 

Federal Constitution. Searle v. City of Lead examined the history of the damage 

clause: 

The constitutional provision is unquestionably a wise and 

just one, and well calculated to protect property owners 

from injustice and wrong on the part of municipal or other 

corporations or individuals invested with the privilege of 

taking private property for public use, and should be 

given a liberal construction by the courts, in order to 

make it effectual in the protection of the rights of the 

citizen. The words “or damaged” were, without doubt, 

added to the usual provisions contained in earlier 

constitutions for the purpose of extending the remedy to 

incidental or consequential injuries to property, not 

actually taken for public use, in the ordinary acceptation 

of that term[.]

10 SD 312, 317-18, 73 NW 101, 103 (1897). Thus, the South Dakota Constitution 

provides an additional theory by which a plaintiff may bring a claim for damages

against the state.

4 In State Highway Commission v. Bloom, we noted that:

 

4. The North Dakota Supreme Court recognized that the words “or damaged” 

affords more protection than the federal constitution. King v. Stark County, 

67 ND 260, 271 NW 771, 773-74 (1937). By 1937, almost every state had 

(continued . . .)
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Under the taking and damaging clause of our constitution

. . . it is a basic rule of this jurisdiction governing 

compensation for consequential damages that where no 

part of an owner’s land is taken but because of the taking 

and use of other property so located as to cause damage to 

an owner’s land, such damage is compensable if the 

consequential injury is peculiar to the owner’s land and 

not of a kind suffered by the public as a whole. 

77 SD 452, 461, 93 NW2d 572, 577 (1958). We further noted that “[t]his rule has 

been applied in a number of South Dakota cases involving a change of street grade 

to the damage of abutting property not physically invaded.” Id. (citing Searle, 10 

SD 312, 73 NW 101; Whittaker v. City of Deadwood, 12 SD 608, 82 NW 202 (1900)).

[¶24.] In Hurley v. State, we recognized that the consequential damages rule 

extends beyond the change of street grade cases. 82 SD 156, 161-62, 143 NW2d 

722, 725 (1966). Specifically, we held that under the damage clause “a landowner 

may claim 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 

connection with and as incidental to the ownership of the land itself.” Id. at 161, 

143 NW2d at 725 (citation omitted). Hurley involved the state’s creation of a 

barrier that impaired the plaintiff’s right of access to a road abutting their property. 

Id. at 159, 143 NW2d at 724. Ultimately, the state was required to compensate the 

plaintiffs for the obstruction. Id. at 164, 143 NW2d at 726.

[¶25.] Our precedent involving the damage clause is not entirely consistent. 

In Hyde v. Minnesota D. & P. Railway Co., the Court stated that the words “or 

_________________________

(. . . continued)

amended its constitution to include the “or damages” words. Id. at 774 (citing 

Lewis, Eminent Domain (3d Ed) §§ 363-64). 
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damaged” did not broaden the effect of our constitutional provision over what it 

would have been had the word “taken” been used alone. 29 SD 220, 228-29, 136 NW 

92, 96 (1912). Hyde held that the damages clause did not extend the right of 

recovery “to include that for any injury for which damages could not have been 

recovered at common law.” Id. Hyde is a two-to-one plurality opinion that is nearly 

one hundred years old. It has been impliedly overruled by both Bloom and Hurley. 

To the extent that Hyde conflicts with Bloom, Hurley, and the plain language of 

Article VI, section 13, it is expressly overruled. 

[¶26.] A plaintiff can recover under the consequential damages rule if he or 

she can prove “the consequential injury is peculiar to [their] land and not of a kind 

suffered by the public as a whole.” Bloom, 77 SD at 461, 93 NW2d at 577; see also 

Hurley, 82 SD at 162, 143 NW2d at 725. The injury to the plaintiff “must be 

different in kind and not merely in degree from that experienced by the general 

public.” Hurley, 82 SD at 162, 143 NW2d at 726 (citing Hendrickson v. State, 267 

Minn 436, 127 NW2d 165 (1964)).

[¶27.] Krier brought this action under the consequential damages theory. He

does not argue that the Township changed the grade of Garfield Avenue, or that it 

blocked his right of access to Garfield Avenue or his property. Indeed, the 

Township, through its repair of the road and removal of the gate, has actually 

increased access to Krier’s property from the south. Krier’s argument is that the 

dust and gravel from Garfield Avenue continually invades his property and has

diminished its value. 
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[¶28.] Krier does not claim the injury to his property is unique from that 

suffered by other landowners, except that he built his home prior to the resurfacing 

of Garfield Avenue, whereas the other homes were built afterwards. Thus, Krier 

contends that only his property has diminished in value as a result of the

resurfacing. Krier is confusing the damages resulting from the injury with the 

injury. The injury to Krier’s property is the same as the injury to the other 

properties. It differs only in amount or degree. The fact that a plaintiff suffers a 

higher degree of injury or damages will not entitle him to recovery under the 

consequential damages rule.5 Hurley, 82 SD at 163, 143 NW2d at 726. Krier has 

failed to produce any evidence of a separate and distinct injury and, as a result, has 

made no showing the circuit court erred in granting summary judgment for the 

Township.

[¶29.] 3. Whether the circuit court erred in taxing disbursements

in favor of the Township. 

[¶30.] Krier’s final argument is that the circuit court erred in taxing

disbursements of $657.08 in favor of the Township. SDCL 15-17-37 provides: 

The prevailing party in a civil action or special proceeding may 

recover expenditures necessarily incurred in gathering and 

procuring evidence or bringing the matter to trial. Such 

expenditures include costs of telephonic hearings, costs of 

telephoto or fax charges, fees of witnesses, interpreters, 

translators, officers, printers, service of process, filing, expenses 

from telephone calls, copying, costs of original and copies of 

transcripts and reporter’s attendance fees, court appointed 

experts, and other similar expenses and charges. These 

 

5. The Township invites us to address the extreme burden that would be placed 

on rural townships if compensation was required every time they graveled a 

secondary road. However, we need not address the Township’s argument to 

reach our decision in the present case. 
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expenditures are termed “disbursements” and are taxed 

pursuant to [SDCL] 15-6-54(b). 

Krier fails to specify his objections to the taxation of disbursements by the circuit 

court. Instead, he generally relies on SDCL 15-17-52, which provides that “[t]he 

court may limit the taxation of disbursements in the interests of justice,” and SDCL 

15-17-53, which provides that a trial court may disallow taxation of disbursements 

that would be “oppressive or work a hardship.” However, in the absence of specific 

objections to the taxation of disbursements, there is no showing of error. 

[¶31.] The statutes are clear that disbursement awards are within the 

discretion of the trial court. Nelson v. Nelson Cattle Co., 513 NW2d 900, 906 (SD 

1994). Krier has failed to show where the trial court has abused its discretion. 

[¶32.] Affirmed.

[¶33.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

MEIERHENRY, Justices, concur.