#27557-a-DG

2016 S.D. 90

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

CARLYLE SCHLIEM and

FARMERS STATE BANK OF CANTON, Plaintiffs and Appellants,

v.

STATE OF SOUTH DAKOTA,

by and through the Department 

of Transportation and the South Dakota

Transportation Commission, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE LAWRENCE E. LONG

Judge

* * * *

MARK V. MEIERHENRY

CLINT SARGENT

CHRISTOPHER HEALY of

Meierhenry Sargent, LLP

Sioux Falls, South Dakota

 and

LARRY A. NELSON of

Frieberg, Nelson & Ask, LLP

Canton, South Dakota Attorneys for plaintiffs

and appellants.

KARLA L. ENGLE

Special Assistant Attorney General

Department of Transportation

 Office of Legal Counsel

Pierre, South Dakota Attorneys for defendants

and appellees.

* * * *

ARGUED ON APRIL 26, 2016 

OPINION FILED 12/07/16
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GILBERTSON, Chief Justice

[¶1.] Carlyle Schliem and Farmers State Bank of Canton (the Bank) 

brought an inverse-condemnation action against the State in connection with the 

State’s reconstruction of the interchange between Interstate 90 and Cliff Avenue in 

Sioux Falls. Schliem argues the State’s closure of a nearby intersection diminished 

the market value of his property. The circuit court granted summary judgment in 

favor of the State, and Schliem and the Bank appeal. We affirm.

Facts and Procedural History

[¶2.] Schliem owns, and the Bank holds a mortgage on, Lots 13 and 14 in 

the North Side Gardens Addition to the City of Sioux Falls (the Property). The 

Property is located on the south side of 63rd Street North, approximately 748 feet 

east of 63rd Street’s intersection with Cliff Avenue (the Intersection). The 

Intersection was located approximately 66 feet south of Interstate 90’s eastbound 

on-ramp. The Property abuts 63rd Street to the north and Wayland Avenue to the 

east.1 Schliem, who has owned the Property for approximately 25 years, and the 

owners of several other properties in North Side Gardens intended to commercially 

develop the area around the anticipated site of a new hotel.

 

1. Wayland Avenue is a 17-foot-wide dirt road that is sometimes impassable. 

Because it is not currently suitable for traffic, we disregard its presence for 

the purposes of this appeal.
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[¶3.] In 2013 and 2014, the State reconstructed a portion of Interstate 90 

and Cliff Avenue. As part of the project, the State closed the Intersection because it 

interfered with efficient traffic movements on Cliff Avenue and the on-ramp to 

Interstate 90. Before the State’s project, 63rd Street terminated in a dead end 

approximately 1,282 feet east of Cliff Avenue. Approximately 300 feet east of this 

dead end, a separate segment of 63rd Street intersected with National Avenue and 

continued east toward Gulby Avenue. Prior to closing the Intersection, the State 

eliminated this 300-foot gap by installing an asphalt road connecting the two 

segments of 63rd Street. The result is that the driving distance between the 
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Property and the nearest intersecting highway is approximately 86 feet more than 

before the State’s project.2

[¶4.] As part of the project, the State purchased Lots 2, 3, 4, 16, 17, and a 

portion of 18. The State condemned a small, triangular strip of land across the 

northern border of Lots 6, 7, and 8.3 It also took the right to directly access Cliff 

Avenue from abutting Lot 19.4 The State did not take or purchase any property 

interest belonging to Schliem. 

[¶5.] Even so, Schliem brought an action against the State alleging inverse 

condemnation and a violation of due process. To support his claims, Schliem 

produced evidence that the market value of the Property decreased from $464,800 

to $151,000 after the Intersection’s closure. In response, the State asked the circuit 

court to dismiss Schliem’s action for failure to state a claim. After a hearing, the 

court converted the State’s motion to dismiss into a motion for summary judgment. 

Schliem then also asked for summary judgment, and the circuit court held a 

hearing to consider the competing motions. Concluding that Schliem had not 

 

2. In its memorandum decision, the circuit court stated that the distance from 

Cliff Avenue to Schliem’s property is approximately 748 feet, that the 

distance from Cliff Avenue to 63rd Street’s preconstruction dead end was 

approximately 1,282 feet, and that 63rd Street resumed and intersected with 

National Avenue and Gulby Avenue 300 feet to the east of its preconstruction 

dead end. Thus, Schliem’s property is only 534 feet away from the 300-foot, 

asphalt extension of 63rd Street, and he must travel approximately 834 feet 

to the east to reach the nearest intersecting highway.

3. This taking is the subject of State v. Miller & Walsh, 2016 S.D. 88, 

___ N.W.2d ___.

4. This taking is the subject of State v. JB Enterprises, Inc., 2016 S.D. 89, 

___ N.W.2d ___.
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identified a property interest that had been taken or damaged by the State, the 

court granted the State’s motion. 

[¶6.] On appeal, Schliem raises the following issue: Whether the circuit 

court erred in granting the State’s motion for summary judgment.

Standard of Review

[¶7.] “In reviewing a grant or a denial of summary judgment under 

SDCL 15-6-56(c), we must determine whether the moving party demonstrated the 

absence of any genuine issue of material fact and showed entitlement to judgment 

on the merits as a matter of law.” Gades v. Meyer Modernizing Co., 2015 S.D. 42, 

¶ 7, 865 N.W.2d 155, 157-58 (quoting Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 5, 

859 N.W.2d 618, 621). “We view the evidence ‘most favorably to the nonmoving 

party and resolve reasonable doubts against the moving party.’” Id. ¶ 7, 

865 N.W.2d at 158 (quoting Peters, 2015 S.D. 4, ¶ 5, 859 N.W.2d at 621). 

Analysis and Decision

[¶8.] Schliem argues that he has a property right in direct access to the 

Intersection and that by closing the Intersection, “the State’s project destroyed 

100% of the commercial accessibility” to the Property. According to Schliem, this 

loss of commercial accessibility diminished the market value of the Property by 

$313,800. Concluding that Schliem had failed to identify a property right that had 

been taken or damaged by the State, the circuit court noted: “It is perhaps true that 

the value of the Property has been diminished as the result of the Project, but I find 

that such diminishment in value, standing alone, is insufficient to qualify as 

‘damage’ sufficient to allow compensation to be awarded from [the State].” Schliem 
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claims that “[t]his statement by the trial court which finds the necessary elements 

proving the State liable for a constitutional damaging is simply an error of law.” 

Schliem is incorrect.

[¶9.] Before addressing the legal question whether the State was entitled to 

judgment on the merits, we begin by examining whether there are any genuine 

issues of material fact in this case. According to Schliem, “[t]here are facts in 

dispute concerning the issue of the reasonableness of the replacement access.” 

Specifically, Schliem contends he disputed items 17, 18, 19, and 20 from the State’s 

statement of undisputed facts submitted in support of the State’s motion for 

summary judgment. Those facts and responses are as follows:

[State’s Fact 17]: After the Project, drivers wishing to access 

properties along 63rd Street will likely come from 60th Street, 

travel north on National Avenue or Gulby Avenue, and then 

proceed west down 63rd Street to their destination.

[Schliem’s Response]: Admit that is a legal alternative access 

constructed by [the State] following its closure of the 

intersection at 63rd and Cliff. After the closure of the 

intersection, drivers attempting to reach the properties also use 

routes across the Perkins Restaurant property (Lot 19) to reach 

E. 63rd St. or use Wayland Avenue from 60th or 61st. Neither 

these nor any alternative built by the State provides a reasonable 

replacement access.

[State’s Fact 18]: After the Project, drivers coming from the 

east on 60th Street will likely travel about 1,500 feet less to 

reach the Property.

[State’s Fact 19]: After the Project, drivers coming from the 

west on 60th Street or the south on Cliff Avenue will likely 

travel about 1,100 feet more to reach the Property.

[State’s Fact 20]: After the Project, drivers coming from the 

north on Cliff Avenue will likely travel about 3,050 feet farther 

to reach the Property.

[Schliem’s Response]: Admit but deny the alternative routes 

provide reasonable access which is why the fair market value of 

the properties has diminished significantly.
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(Emphasis added.) According to Schliem, “[t]hese disputed facts prohibit summary 

judgment.”

[¶10.] Although the foregoing certainly establishes a dispute between the 

parties, it does not establish a genuine issue of material fact. Schliem and the State 

disagree that the replacement access to the Property via National and Gulby 

Avenues is reasonable. However, the question whether replacement access is 

reasonable is synonymous with the question whether a landowner’s right of access 

has been substantially impaired. See Hurley v. State, 82 S.D. 156, 163-64, 

143 N.W.2d 722, 726 (1966). Although some jurisdictions have held that this 

question is one of fact, “[i]n most jurisdictions, the issue . . . is a question of law.” 

4A Julius L. Sackman, Nichols on Eminent Domain § 14.02[3][c][ii] (3d ed., rel. 116-

12/2014).5 South Dakota adheres to the majority rule. Rupert v. City of Rapid City, 

2013 S.D. 13, ¶ 29, 827 N.W.2d 55, 67 (“[T]he ultimate determination of whether 

government conduct constitutes a taking or damaging is a question of law for the 

court.”); Hall v. State ex rel. S.D. Dep’t of Transp., 2006 S.D. 24, ¶ 8, 712 N.W.2d 22, 

 

5. See Triangle, Inc. v. State, 632 P.2d 965, 967-68 (Alaska 1981); Breidert v. S. 

Pac. Co., 394 P.2d 719, 722 n.4 (Cal. 1964) (en banc); State Dep’t of Hwys., 

Div. of Hwys. v. Davis, 626 P.2d 661, 665 (Colo. 1981) (en banc); Palm Beach 

Cty. v. Tessler, 538 So. 2d 846, 850 (Fla. 1989); Dep’t of Transp. v. Taylor, 

440 S.E.2d 652, 655 (Ga. 1994); Dep’t of Pub. Works & Bldgs. v. Wilson & Co., 

340 N.E.2d 12, 17 (Ill. 1975); Teachers Ins. & Annuity Ass’n of Am. v. City of 

Wichita, 559 P.2d 347, 357 (Kan. 1977); State ex rel. Dep’t of Hwys. v. 

Linnecke, 468 P.2d 8, 10 (Nev. 1970); Narciso v. State, 328 A.2d 107, 110 (R.I. 

1974); State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996); Stefan Auto Body v. State 

Hwy. Comm’n, 124 N.W.2d 319, 321 (Wis. 1963). Contra State ex rel. Herman 

v. Schaffer, 467 P.2d 66, 72 (Ariz. 1970) (en banc); Wilson v. Iowa State Hwy. 

Comm’n, 90 N.W.2d 161, 167-68 (Iowa 1958); Hendrickson v. State, 

127 N.W.2d 165, 172 (Minn. 1964); Balog v. State, Dep’t of Rds., 131 N.W.2d 

402, 410 (Neb. 1964); Cady v. N.D. Dep’t of Transp., 472 N.W.2d 467, 470 

(N.D. 1991); State Hwy. Comm’n v. Peters, 416 P.2d 390, 395 (Wyo. 1966).
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25 (“[W]hether a taking occurred is a question of constitutional law which we review 

de novo.”); Hurley, 82 S.D. at 163-64, 143 N.W.2d at 726 (conducting de novo review 

of determination that landowner’s access had been substantially impaired).6 

[¶11.] Additionally, Schliem’s argument on appeal that the record needs to be 

more fully developed before judgment is appropriate stands in direct opposition to 

his argument before the circuit court. Schliem himself asked the circuit court to 

render summary judgment. In doing so, he necessarily represented to the court 

that the material facts of this case were undisputed. See SDCL 15-6-56(c)(1) (“A 

party moving for summary judgment shall attach to the motion a separate, short, 

and concise statement of the material facts as to which the moving party contends 

there is no genuine issue to be tried.”). Moreover, in order to avoid summary 

judgment, Schliem had an obligation to raise a genuine issue of material fact in 

response to the State’s motion for summary judgment. Gades, 2015 S.D. 42, ¶ 7, 

865 N.W.2d at 158 (“If the moving party properly supports the motion, the 

nonmoving party may only avoid summary judgment by ‘setting forth specific facts 

showing that there is a genuine issue for trial.’” (quoting SDCL 15-6-56(e))). Thus, 

even if Schliem was able to produce evidence demonstrating a genuine issue of 

material fact at this point, he failed to do so either in his own motion for summary 

 

6. At oral argument, counsel for Schliem conceded that the question whether 

compensation is due under Article VI, § 13, of the South Dakota 

Constitution—e.g., whether a landowner’s right of access has been 

substantially impaired—is a question of law.
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judgment or in his responses to the State’s motion for summary judgment.7 

Therefore, we proceed to the legal merits.

[¶12.] By the time of South Dakota’s 1885 constitutional convention, many

courts in other states had interpreted their states’ respective takings clauses as 

limiting compensation to cases where a state physically appropriated or invaded 

land (e.g., “by superinduced additions of water, earth, sand, or other matter”). 

Searle v. City of Lead, 10 S.D. 312, 316, 73 N.W. 101, 103 (1897). This limited 

interpretation of takings clauses resulted from “construing the word ‘property’ in its 

narrow sense as the ‘thing’ owned, rather than giving to it the broader and truer 

meaning of, ‘the exclusive right to possess, enjoy, and dispose of, a thing[.]’” Hyde v. 

Minn., Dak. & Pac. Ry. Co., 29 S.D. 220, 229, 136 N.W. 92, 95 (1912). Under these 

early decisions, “there was no provision against the mere ‘damaging’ of the thing 

 

7. The dissent notes that “cross-motions for summary judgment do ‘not mean 

that there are no genuine issues, obliging a court to grant judgment for one 

side or the other. Both motions must be denied if the court detects genuine 

issues of fact or genuine issues regarding the inferences to be drawn from the 

facts.’” Infra ¶ 41 n.26 (emphasis added) (quoting St. Paul Fire & Marine 

Ins. Co. v. Engelmann, 2002 S.D. 8, ¶ 15, 639 N.W.2d 192, 199). Contrary to 

the dissent’s implication, this opinion does not suggest otherwise. The point 

is that Schliem had multiple opportunities to assert facts that he viewed as

material and disputed. He failed to do so both before the circuit court and in 

argument to this Court. See supra ¶¶ 9-10. While the dissent would 

nevertheless reverse to grant Schliem yet another opportunity to do so, our 

firmly established summary-judgment jurisprudence requires otherwise. See 

Gades, 2015 S.D. 42, ¶ 7, 865 N.W.2d at 158.

Like Schliem, the dissent also fails to identify any issue of material fact in 

this case. Instead, the dissent is premised on Schliem’s incorrect argument 

that the parties’ disagreement on the reasonableness of the remaining access

is a factual dispute. See infra ¶¶ 31-32 & nn.20-21. As explained above, the 

question whether access has been substantially impaired (i.e., whether 

remaining access is reasonable) is a question of law, not a question of fact. 

See supra ¶ 10 & n.5.
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which was the subject of property[;] . . . one could recover only when there was an 

actual ‘taking of the thing.’” Id. In recognition of this limitation, the drafters of 

South Dakota’s constitution added the words or damaged to Article VI, § 13.8 See 

Searle, 10 S.D. at 317-19, 73 N.W. at 103-04. Thus, “[p]rivate property shall not be 

taken for public use, or damaged, without just compensation[.]” S.D. Const. art. VI, 

§ 13. 

[¶13.] In light of the foregoing, the first step in any Article VI analysis9 must 

be to determine whether a recognized property right has been infringed by state 

 

8. This conclusion is confirmed by an examination of the constitutional debates 

of 1885. During debate on the meaning of the proposed Article VI, attorney 

Robert Dollard commented: 

As I remember it, [the Takings Clause] was in the constitution 

of the state of Illinois, 1848, which was superceded by the 

constitution of 1870. That didn’t work right. Their experience 

proved that that was not sufficient to protect the people; hence 

[the] addition [of the words or damaged]. Their condition and 

our condition is substantially the same. The reason for the 

addition here is the same as there—that private property shall 

never be damaged without just compensation. . . . [I]t was held, 

and I think it was uniformly held by the Supreme Court of the 

state of Illinois, that it was only the property taken that a man 

could demand compensation for. They might destroy his 

property incidentally, but if they did not take it he was not 

entitled to recover a penny’s compensation.

1 Dak. Const. Convention 297 (1885) (Doane Robinson ed., 1907). Mr. 

Dollard—who was elected attorney general for the provisional government in 

1885 and went on to become South Dakota’s first attorney general—was 

uniquely qualified to make these comments. Before moving to Dakota 

Territory in 1879, Mr. Dollard was admitted to the Illinois bar in 1870.

9. As the California Supreme Court has explained: “An inverse condemnation 

action is an eminent domain proceeding initiated by the property owner 

rather than the condemner. The principles which affect the parties’ rights in 

an inverse condemnation suit are the same as those in an eminent domain 

action.” Breidert, 394 P.2d at 721 n.1. Compare Hurley, 82 S.D. at 161, 

(continued . . .)
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conduct. Schliem contends he is entitled to compensation because the Intersection’s 

closure reduced the value of his property. He also contends the closure caused the 

“loss of assemblage rights.” Finally, he claims he had “a legal interest in the 

intersection at Cliff Avenue and 63rd Street” and that the State substantially 

impaired his right to access his property by closing the Intersection. None of these 

arguments are convincing.

[¶14.] Schliem first contends that the devaluation of the Property alone is 

sufficient to warrant compensation under Article VI, § 13. However, a landowner is 

not entitled to compensation under Article VI simply because he has suffered some 

loss or his property has been devalued as a result of state action. “A property right 

must be invaded before compensation is allowed.” Darnall v. State, 79 S.D. 59, 70, 

108 N.W.2d 201, 207 (1961); Hyde, 29 S.D. at 233-34, 136 N.W. at 97 (“Legal 

damage is the loss or detriment caused by . . . the infringement of some right vested 

in one.”).10 “Moreover, one is not [entitled to compensation], though he may have 

suffered [loss], unless he has suffered the infringement of some right vested in him 

which right is superior to the right vested in the party causing the damage . . . .” 

Hyde, 29 S.D. at 234, 136 N.W. at 97 (emphasis added). Thus, the word damaged, 

as used in the South Dakota Constitution, contemplates only legal injury. Id. 

________________________

(. . . continued)

143 N.W.2d at 725 (requiring peculiar injury for recovery in inversecondemnation case), with State Hwy. Comm’n v. Bloom, 77 S.D. 452, 461, 

93 N.W.2d 572, 577 (1958) (requiring peculiar injury for recovery in formalcondemnation case).

10. “What property is and the rights that attach to ownership are primarily a 

matter of state law.” 2 Julius L. Sackman, Nichols on Eminent Domain

§ 5.01[2] (3d ed., rel. 102-7/2011). 
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When a recognized property interest has not been infringed, “[t]here is no redress, 

as there is no wrong to redress, though the [loss] may be great in dollars and cents.” 

Id. (emphasis added); accord 4A Sackman, supra ¶ 10, § 14.03[2][c][i] (citing 

Campbell v. United States, 266 U.S. 368, 45 S. Ct. 115, 69 L. Ed. 328 (1924)).11 

Therefore, in the absence of a recognized property right, the mere devaluation of 

property resulting from state conduct is not a legally cognizable injury and is not 

 

11. Some decisions seem to categorically deny compensation when the state 

action complained of is labeled a manifestation of the police power rather 

than the power of eminent domain. For example, this Court has said that

relocations of a highway, prohibitions against crossing it or 

against left and U turns, the designation of one-way streets and 

other similar restrictions and regulations have been upheld as 

proper exercises of the police power of the state and not of the 

power of eminent domain. As such they are not compensable. 

Darnall, 79 S.D. at 68, 108 N.W.2d at 206. However, “[t]he distinction is not 

whether [the conduct at issue] is a valid exercise of police power but 

whether . . . the property itself is taken or damaged.” Hurley, 82 S.D. at 162, 

143 N.W.2d at 725 (quoting Balog, 131 N.W.2d at 408). “While courts have 

assumed that designating a regulation an exercise of police power prevents 

compensation by eminent domain proceedings, for practical purposes this is 

simply a convenient way of describing which activities confer a right to 

damages and which do not.” Id. at 162-63, 143 N.W.2d at 726 (emphasis 

added) (quoting Hendrickson, 127 N.W.2d at 170).

The fact that [the State] had under the police power the right to 

improve its streets and thereby control the traffic thereon does 

not mean that it had immunity from liability to respond in 

damages which resulted to private property abutting the 

improvement where a part of the property of appellee was taken 

by condemnation. The exercise of police power may or may not 

involve the taking of private property and it may or may not 

involve mere non-compensable inconvenience to the owner 

thereof.

Id. at 162, 143 N.W.2d at 725 (emphasis added) (quoting Balog, 131 N.W.2d 

at 408). Thus, statements like that in Darnall should simply be read as 

recognizing that loss resulting from a state’s use of its police power is 

typically—though not always—noncompensable.
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compensable under Article VI, § 13. See Morris Family, LLC ex rel. Morris v. S.D. 

Dep’t of Transp., 2014 S.D. 97, ¶ 28, 857 N.W.2d 865, 873-74.

[¶15.] Next, Schliem contends he is entitled to compensation for the “loss of 

assemblage rights.” However, Schliem has not cited any decision—let alone one 

from this Court—holding that a landowner’s intent to participate in an assemblage 

is a property right contemplated by Article VI, § 13. On the contrary, the doctrine of

assemblage is simply a valuation rule that can affect the measure of compensation 

due if a recognized property interest has been infringed.12

The doctrine of assemblage applies when the highest and best 

use of separate parcels involves their integrated use with lands 

of another. Pursuant to this doctrine, such prospective use may 

be properly considered in fixing the value of the property if the 

joinder of the parcels is reasonably practicable. If applicable, 

this doctrine allows a property owner to introduce evidence 

showing that the fair market value of the owner’s real estate is 

enhanced by its probable assemblage with other parcels.

Miller v. Preisser, 284 P.3d 290, 297-98 (Kan. 2012) (quoting 4 Julius L. Sackman, 

Nichols on Eminent Domain § 13.01[20] (3d ed., 2003)). As explained above, 

however, the fair-market value of a property is not relevant in a condemnation case 

unless the predicate question—i.e., whether a recognized property right has been 

infringed—has already been affirmatively answered. See supra ¶ 14. If a

 

12. As noted above, “the ultimate determination of whether government conduct 

constitutes a taking or damaging is a question of law for the court.” Rupert, 

2013 S.D. 13, ¶ 29, 827 N.W.2d at 67; accord Hall, 2006 S.D. 24, ¶ 8, 

712 N.W.2d at 25; 4A Sackman, supra ¶ 10, § 14.02[3][c][ii]. If the court 

determines a property right has been taken or damaged, then the case 

proceeds to a jury. However, our Legislature has declared that “[t]he only

issue that shall be tried by the jury . . . shall be the amount of compensation 

to be paid for the property taken or damaged.” SDCL 31-19-4 (emphasis 

added); accord SDCL 21-35-15. 
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recognized property right has not been infringed, then no compensation is due. 

Thus, because the presence of an assemblage would only affect the measure of 

compensation, and because the mere allegation of loss is not sufficient to establish a 

right to compensation under Article VI, § 13, the State’s alleged frustration of 

Schliem’s intent to participate in an assemblage does not support his claim that he

is entitled to compensation under Article VI, § 13.13

[¶16.] Finally, Schliem contends he has a legal interest in the Intersection—

i.e., a right to access the Intersection via 63rd Street. Our cases establish that “the 

owner of land [has a special, private right] to access [his] land . . . where it abuts 

upon a highway.” Hyde, 29 S.D. at 238, 136 N.W. at 99. This right “extends 

sufficiently beyond his own premises as to insure him reasonable facilities for 

connection with [nonabutting] highways[.]” Id. at 238-39, 136 N.W. at 99 (emphasis 

added). Thus,

[p]roperty ownership includes two access related rights: 

the right to pass to or from the public way immediately 

adjacent to the land (“ingress and egress”); 

 

13. The dissent makes a similarly erroneous argument by claiming that “[i]n 

Hurley, this Court considered a property’s highest and best use when 

determining whether a substantial impairment occurred.” Infra ¶ 37. This 

claim is factually incorrect. We did not use the change in highest and best 

use of the property as a basis for concluding a taking had occurred; rather, we 

referenced the highest and best use in stating the method for calculating the 

resulting compensation due. In Hurley, we said:

The measure of damages for the obstruction or substantial 

impairment of an abutting landowner’s right of access to a street 

or highway is the difference between the market value of the 

property considered at its highest, best, and most profitable use 

immediately before and immediately after the destruction or 

impairment.

82 S.D. at 164, 143 N.W.2d at 726 (emphasis added). 
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and the right to go somewhere else once the owner is upon 

the abutting road, or the right of access to the entire 

system of roads.

8A Patrick J. Rohan & Melvin A. Reskin, Nichols on Eminent Domain

§ G16.03[2][a] (3d ed., rel. 109-5/2013). Except for the right to access an abutting 

highway, “the law . . . does not protect any particular access route[.]” 2A Julius L. 

Sackman, Nichols on Eminent Domain § 6.02[5][c] (3d ed., rel. 106-7/2012); accord 

State, Idaho Transp. Bd. v. HI Boise, LLC, 282 P.3d 595, 600 (Idaho 2012). “The 

right of access is unimpaired if an alternative means of reasonable access exists.” 

2A Sackman, supra ¶ 16, § 6.02[7]; accord Hyde, 29 S.D. at 238-39, 136 N.W. at 99. 

Schliem’s property does not abut Cliff Avenue or the Intersection—it only abuts 

63rd Street. Therefore, contrary to Schliem’s contention, he does not have a right of 

access to the Intersection per se; instead, he is simply entitled to reasonably 

convenient access to the system of public highways. 

[¶17.] Not every change in access to the system of public highways is 

unreasonable such that a property owner is entitled to compensation. The right of 

access is infringed in the constitutional sense only when it is destroyed or 

substantially impaired. See Hurley, 82 S.D. at 163, 143 N.W.2d at 726; Darnall, 

79 S.D. at 70, 108 N.W.2d at 207. “Courts uniformly agree that a reduction in value 

resulting from ‘diversion of traffic’ is noncompensable, as is ‘mere circuity of travel.’” 

8A Rohan & Reskin, supra ¶ 16, § G16.03[2][a].14 Although “[m]ost directional 

 

14. The phrases diversion of traffic and mere circuity of travel refer to distinct 

legal concepts.

“Diversion of traffic” implies a reduction in the volume of traffic 

passing adjacent to the property, and concomitant loss of 

(continued . . .)
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traffic regulations, by their very nature, involve mere diversion of traffic and 

circuity of travel[,]” id. § G16.03[2][c][iv], some may nevertheless result in a 

substantial impairment of access. For example, “[g]overnmental activity that 

totally landlocks a parcel which previously had access is a taking of property.” Id.

§ G16.02[2][b][i]. Likewise, substantial increases in circuity may be compensable. 

See Darnall, 79 S.D. at 67, 108 N.W.2d at 205 (“Circuity of travel is not a 

compensable damage under these circumstances . . . .” (emphasis added)); City of 

Memphis v. Hood, 345 S.W.2d 887, 890 (Tenn. 1961) (discussing State v. Rascoe, 

178 S.W.2d 392 (Tenn. 1944), which held an increased-travel distance of about 

seven miles compensable).15 Other changes in the physical dimensions and 

conditions of access may also amount to a substantial impairment. See City of Waco 

v. Texland Corp., 446 S.W.2d 1, 4 (Tex. 1969) (holding the narrowing of an existing 

________________________

(. . . continued)

patronage. Since government has no vested interest or duty to 

ensure that a business is successful when it builds roads for the 

future, an owner likewise can have no reasonable expectation 

that such roads are fixed forever. The task is to isolate “mere” 

diversion of traffic cases from compensable takings which, 

coincidentally, divert traffic.

Circuity of travel implies an indirect and more inconvenient 

means of reaching the property. 

8A Rohan & Reskin, supra ¶ 16, § G16.03[2][a]. 

15. Our citation to City of Memphis v. Hood should not be read as suggesting that 

every increase in circuity of less than seven miles is noncompensable. “The 

difference between ‘mere circuity of travel’ and unsuitable access is one of 

degree, and is directly related to the unique fact pattern in every case.” 

8A Rohan & Reskin, supra ¶ 16, § G16.03[2][a]. 
#27557

-16-

street by the installation of support piers for an overpass substantially impaired 

access to industrial property by preventing use of transport trucks).16 

[¶18.] In this case, the physical characteristics of Schliem’s access routes 

before and after the Intersection’s closure are nearly identical. Schliem’s property 

does not abut the Intersection, and the Intersection’s closure did not affect his 

 

16. Although the dissent acknowledges that the circuit court applied the correct 

legal test in this case, the dissent would nevertheless “remand for an 

evidentiary hearing to more fully develop the record and to apply the test 

articulated in Miller & Walsh.” Infra ¶ 41. It similarly claims that “[t]he 

circuit court did not include an analysis of the factors it considered to reach 

[its] conclusion, nor did it have the benefit of the guidance provided by this 

Court in Miller & Walsh.” Infra ¶ 33 (footnote omitted). There are several 

problems with this argument.

The dissent’s argument is inconsistent with our Miller & Walsh decision. 

The significance of Miller & Walsh is the clarification of when to apply the 

substantial-impairment rule—i.e., a change in access may not be included in 

calculating the compensation due in the case of a partial taking unless the 

change in access amounts to a substantial impairment of access. See Miller 

& Walsh, 2016 S.D. 88, ¶¶ 45-46, ___ N.W.2d at ___ (overruling Schuler v. 

Bd. of Supervisors of Lincoln Twp., 12 S.D. 460, 81 N.W. 890 (1900)). Unlike 

Miller & Walsh, the present case does not involve a partial taking; therefore, 

the central holding of Miller & Walsh has no application in the present case. 

Although the substantial-impairment rule is of course discussed in Miller & 

Walsh, it did not originate there—that rule has been the law in this State for 

well over a century. See Hurley, 82 S.D. at 164, 143 N.W.2d at 726-27 (1966); 

Searle, 10 S.D. at 316-19, 73 N.W. at 103-04 (1897). Thus, our Miller & 

Walsh decision is not necessary to resolve the issue on appeal in this case.

Even if it was, the dissent’s argument is misconceived because it ignores both 

the procedural posture of this case and the standard under which we review 

the circuit court’s decision. In contrast to Miller & Walsh, which involves the 

appeal of a jury verdict, the present case is an appeal of an order granting 

summary judgment. Thus, as the dissent concedes, see infra ¶ 33 n.23, the 

circuit court was not required to offer any analysis or issue any conclusions of 

law whatsoever. SDCL 15-6-52(a) (“Findings of fact and conclusions of law 

are unnecessary on decisions of motions [for summary judgment].”). 

Moreover, as noted above, this Court does not afford any deference to the 

circuit court’s conclusions of law on appeal—we apply the de novo standard of 

review. See supra ¶ 10. Because we are not bound by the circuit court’s legal 

conclusions, the law applied by the circuit court is immaterial to our decision. 
#27557

-17-

ability to access 63rd Street in any way. Before the closure, he had to travel 

approximately 748 feet on 63rd Street—all of which was unimproved, gravel road—

before connecting to the general system of public highways. After the closure, he 

must travel approximately 834 feet on 63rd Street—of which only 534 feet is 

unimproved, gravel road—to reach the general system of public highways. An 

increase in circuity of only 86 feet (or about 0.0163 mile) is substantially less than 

increased circuity held to be noncompensable in other cases.17 See Darnall, 79 S.D. 

at 62, 108 N.W.2d at 202 (holding one-mile diversion noncompensable); Triangle, 

632 P.2d at 967 (holding one-half-mile diversion noncompensable); Ark. State Hwy. 

Comm’n v. Bingham, 333 S.W.2d 728, 729 (Ark. 1960) (holding diversion of more 

than one mile noncompensable). While not every case alleging an impairment of 

access can be decided by simply comparing travel distances, in this case the two 

access routes presented for comparison (eastbound and westbound 63rd Street) are 

physically identical in all other relevant respects. Under these facts, the Property 

has not been landlocked, and Schliem’s replacement access is only marginally more 

circuitous while otherwise physically identical. Therefore, we conclude that the 

Intersection’s closure did not substantially impair Schliem’s general right of access 

to the system of public highways, and any inconvenience occasioned thereby is not 

compensable. 

 

17. The dissent’s contrasting calculation that “those accessing Schliem’s property 

from Cliff Avenue will travel 3,050 feet farther[,]” infra ¶ 30 n.19, reflects the 

dissent’s erroneous belief that a nonabutting landowner has a right to access 

his property via a particular route. As previously explained, a nonabutting 

landowner has no such right. See supra ¶ 16.
#27557

-18-

[¶19.] Even if Schliem’s access was materially and substantially impaired by 

the intersection closure, he is not entitled to compensation. “[I]f the right of access 

is destroyed or materially impaired, the damages are compensable if the injury 

sustained is peculiar to the owner’s land and not of a kind suffered by the public 

generally.” Hurley, 82 S.D. at 163, 143 N.W.2d at 726 (emphasis added). “Land 

that does not directly abut the discontinued roadway and which is still accessible by 

other public roadways is not specially damaged.” 2A Sackman, supra ¶ 16, 

§ 6.01[12][c] n.74; accord Hyde, 29 S.D. at 239, 136 N.W. at 99 (“[A]ny interference 

with a highway beyond the point where one’s special rights end is not a ‘taking or 

damaging’ of property, and is not the infringement of any right giving rise to [an] 

action for damages.”). As previously noted, Schliem’s land does not abut the 

discontinued intersection, and the Property remains accessible from the east. 

Therefore, Schliem’s loss is “different . . . merely in degree from that experienced by 

the general public.” Rupert, 2013 S.D. 13, ¶ 10, 827 N.W.2d at 61 (quoting Krier v. 

Dell Rapids Twp., 2006 S.D. 10, ¶ 26, 709 N.W.2d 841, 848); see also Hyde, 29 S.D. 

at 243, 136 N.W. at 101 (“Possibly the depreciation in plaintiff’s property might 

have been greater in degree than that of other owners of property in the vicinity, 

but it was of the same nature, and did not physically interfere with any right, 

easement, or appurtenance belonging to the plaintiff’s property.”). As such, it is not 

compensable under Article VI, § 13.

[¶20.] Schliem nevertheless contends that under our decisions Hall and 

Hurley, the circuit court erred by not considering the reasonableness of the State’s 

decision to close the Intersection. In Hall, landowners owned a truck stop that 
#27557

-19-

abutted Interstate 90 and Ellsworth Road in Box Elder. The State closed the 

interchange between Interstate 90 and Ellsworth Road, and the landowners closed 

their business due to the resulting decline in sales. They brought an inversecondemnation action against the State, but the circuit court granted a motion for 

summary judgment in favor of the State. Hall, 2006 S.D. 24, ¶¶ 1-7, 712 N.W.2d 

at 23-24. In reversing and remanding, we said:

[T]he [circuit] court limited [its] analysis to whether the Owners 

had a property right to passing traffic. The trial court did not 

consider whether Owners still had reasonable access, whether 

their access was materially impaired, or whether their injury 

was peculiar to their land and not of a kind suffered by the 

public generally. Also, the court did not address whether the 

State’s action was arbitrary or unreasonable.

Id. ¶ 20, 712 N.W.2d at 30 (emphasis added). Based on the foregoing language from 

Hall, Schliem concludes that in reviewing an inverse-condemnation claim, a circuit 

court must always determine whether the State conduct at issue was reasonable. 

[¶21.] A careful reading of Hall and Hurley reveals two distinct 

reasonableness concepts. The first simply refers to the standard stated above: no 

compensable injury to access occurs when a landowner is left with reasonable access 

to his property. See supra ¶¶ 16-17. In Hall, we said: “[C]onsideration must be 

given to the reasonableness of the exercise of the state’s police powers.” 2006 S.D. 

24, ¶ 19, 712 N.W.2d at 30. However, we immediately explained and qualified this 

statement by quoting the following language from Hurley:

The state cannot, under the guise of the police power, impose 

unreasonable or arbitrary regulations which go beyond that 

power, and in effect deprive a person of his property within the 

purview of the law of eminent domain, as by depriving the 

owner of all profitable use of the property not per se injurious or 

pernicious, restricting the lawful uses to which the property can 

be put and destroying its value, permanently so restricting the 
#27557

-20-

use of the property that it cannot be used for any reasonable 

purpose, or completely destroying the beneficial interest of the 

owner.

Hall, 2006 S.D. 24, ¶ 19, 712 N.W.2d at 30 (quoting Hurley, 82 S.D. at 163, 

143 N.W.2d at 726). In Hurley, we introduced this quoted language with the phrase 

“In other words,” which immediately followed the conclusion that a landowner is 

only entitled to compensation when “the right of access is destroyed or materially 

impaired” and the resulting loss is peculiar to the owner’s land. Hurley, 82 S.D. 

at 163, 143 N.W.2d at 726. In context, then, considering the reasonableness of state 

conduct simply refers to determining whether the landowner is left with reasonable 

access—i.e., whether the owner’s right of access has been substantially impaired.

[¶22.] The second reasonableness concept mentioned in Hall and Hurley

relates to the validity of the State’s purpose. In Hall, we said: “The State’s 

purpose . . . is material in determining whether the State’s exercise of police power 

was unreasonable and arbitrary.” 2006 S.D. 24, ¶ 21, 712 N.W.2d at 30. In the 

present case, however, the parties do not dispute the validity of the State’s purpose 

in closing the Intersection.18 Even if they did, the question whether a state’s 

purpose is valid necessarily precedes the takings analysis. As the United States 

Supreme Court has explained:

 

18. It is undisputed that the reason for the State’s decision to close the 

Intersection was to facilitate efficient traffic movements on Cliff Avenue and 

the Interstate 90 on-ramp. In its statement of undisputed material facts 

supporting its motion for summary judgment, the State asserted: “The 

proximity of [the intersection of Cliff Avenue and 63rd Street] to the on-ramp 

hindered efficient traffic movements on Cliff Avenue and the interstate 

ramp.” In his response, Schliem admitted this assertion without 

qualification.
#27557

-21-

[S]uch an inquiry is logically prior to and distinct from the 

question whether a regulation effects a taking, for the Takings 

Clause presupposes that the government has acted in pursuit of 

a valid public purpose. The Clause expressly requires 

compensation where government takes private property “for 

public use.” It does not bar government from interfering with 

property rights, but rather requires compensation “in the event

of otherwise proper interference amounting to a taking.” 

Conversely, if a government action is found to be 

impermissible—for instance because it fails to meet the “public 

use” requirement or is so arbitrary as to violate due process—

that is the end of the inquiry. No amount of compensation can 

authorize such action.

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543, 125 S. Ct. 2074, 2084, 

161 L. Ed. 2d 876 (2005) (citation omitted) (quoting First English Evangelical 

Lutheran Church of Glendale v. L.A. Cty., Cal., 482 U.S. 304, 315, 107 S. Ct. 2378, 

2386, 96 L. Ed. 2d 250 (1987)). Likewise, a regulation with an invalid purpose 

might “not significantly burden property rights at all, and it may distribute any 

burden broadly and evenly among property owners. The notion that such a 

regulation nevertheless ‘takes’ private property for public use merely by virtue of its 

[invalid purpose] . . . is untenable.” See id. 

[¶23.] In light of the foregoing, Schliem’s contention that the circuit court 

failed to address the reasonableness of the Intersection’s closure is only partially 

correct—the circuit court did not address the validity of the State’s purpose because 

Schliem did not challenge that purpose as improper. However, unlike Hall, the 

court did address the reasonableness of the State’s conduct in the context of 

determining whether reasonable access to Schliem’s property remained after the 

Intersection’s closure. The court specifically concluded: “In this case [Schliem’s]

right of access has not been ‘substantially’ impaired.” Therefore, the circuit court 
#27557

-22-

addressed the only question of reasonableness Schliem presented and correctly 

concluded that he is not entitled to compensation.

Conclusion

[¶24.] Article VI, § 13, of the South Dakota Constitution does not require 

compensation unless state conduct has infringed a recognized property interest. 

“[T]he mere allegation that plaintiff has suffered damage [does not] suffice . . . .” 

Hyde, 29 S.D. at 236, 136 N.W. at 98. In order for a change in access to constitute 

an infringement of a property right in the constitutional sense, a landowner’s access 

must be destroyed or substantially impaired. In this case, Schliem’s immediate 

access to the highway abutting his property is completely unaffected by the 

Intersection’s closure. While his access route to the general system of public 

highways has changed, his access has not been substantially impaired. Schliem 

failed to allege a genuine issue regarding any fact necessary to reach this 

conclusion, and we see no basis for giving him another opportunity to do so. 

Therefore, Schliem has not suffered compensable loss by the Intersection’s closure, 

and the circuit court did not err in granting the State’s motion for summary 

judgment.

[¶25.] We affirm.

[¶26.] ZINTER, SEVERSON, and WILBUR, Justices, concur.

[¶27.] KERN, Justice, dissents.
#27557

-23-

KERN, Justice (dissenting). 

[¶28.] I respectfully dissent. I would reverse and remand for an evidentiary 

hearing so the record can be more fully developed and the test recently articulated 

in State v. Miller & Walsh, 2016 S.D. 88, ¶ 44, ___ N.W.2d ___, ___, applied. 

[¶29.] Before the State’s project, Schliem had two access points to and from 

his property. One was from the south on Wayland Avenue—“a seventeen-foot-wide 

dirt road that is sometimes impassable.” The other was from the west on Cliff 

Avenue. The only street abutting Schliem’s property, 63rd Street, ended in a dead

end east of his property. The development to the east of Schliem’s property is 

predominately industrial. The development to the west is predominately 

commercial. 

[¶30.] As part of its project, the State closed the Cliff Avenue access. The 

State opened the dead end on 63rd Street to the east of Schliem’s property and 

extended it to intersect with National Avenue and Gulby Avenue. In essence, the 

State’s action reversed the orientation of Schliem’s property where what used to be 

the front with prime commercial access is now the back without any access—and 

the front is now accessed by driving through an industrial park.19 

[¶31.] During the summary-judgment proceedings, Schliem maintained that 

the replacement access provided by the State was unreasonable. He offered three 

property appraisals into the record. The appraisals showed that before the State 

 

19. Those wishing to access Schliem’s property from Cliff Avenue before the

State’s project turned east onto 63rd Street and traveled approximately 748 

feet. After the project, those accessing Schliem’s property from Cliff Avenue 

will travel 3,050 feet farther—through an industrial park.
#27557

-24-

closed the Cliff Avenue access, the highest and best use of Schliem’s property was 

commercial development. However, after the State closed the Cliff Avenue access 

and opened the new access point to the east, the highest and best use of his 

property changed from commercial use to industrial. 

[¶32.] The State failed to refute this evidence. Instead, one week before the 

summary-judgment hearing, the State submitted an affidavit stating that, “[i]f the 

[c]ourt agrees with [Schliem] that the proper test for compensability is whether [he]

lost reasonable access . . . then the State asks for a continuance to permit the State 

to obtain additional evidence on this subject.” The State maintained that it needed 

to gather evidence “necessary to establish that the intersection of Cliff Avenue and 

63rd Street would not provide reasonable commercial access to [Schliem’s]

property.” A continuance was not granted, and the summary-judgment hearing was 

held as scheduled. At the summary-judgment hearing, the State urged the court 

not to consider the reasonableness of the remaining access and to only look to 

whether the injury was peculiar to the land and not the kind of injury suffered by 

the general public.20 The State also asked to submit additional evidence if the court 

considered the reasonableness of Schliem’s remaining access.21 

 

20. The State argued that “the test for reasonable access applies [only] to 

landowners who abut a street where their access ha[d] been changed.” 

Because Schliem’s property did not abut the access closure on Cliff Avenue, 

the State maintained that the court must only consider whether Schliem 

could show a special injury. The state submitted, “So it’s this special injury 

test that applies in this case, not a reasonableness standard.”

21. The State urged, “[I]f the [c]ourt decides that you agree with them and that 

these old cases justify them claiming damages in inverse condemnation as a

result of the closure of the intersection, if you think that’s the right test, that

(continued . . .)
#27557

-25-

[¶33.] Following the summary-judgment hearing, the circuit court issued a 

letter decision concluding Schliem’s access had not been substantially impaired.22 

The circuit court did not include an analysis of the factors it considered to reach this 

conclusion,23 nor did it have the benefit of the guidance provided by this Court in 

Miller & Walsh. Remand is necessary in this case because the circuit court lacked 

an adequate factual basis to fully consider and balance the unique facts of this case. 

[¶34.] It is well settled that “a special private right . . . pertains, not only to 

the part of the highway abutting the owner’s land, but extends sufficiently beyond 

his own premises as to insure him reasonable facilities for connection with those 

highways in which he has no special rights.” Hyde, 29 S.D. 220, 238-39, 136 N.W. 

at 99. The taking or damaging of this right occurs when the State substantially 

impairs a landowner’s access. Miller & Walsh, 2016 S.D. 88, ¶ 43, ___ N.W.2d 

at ___. 

________________________

(. . . continued)

it’s a reasonableness test instead of a special injury test that we urged, if

you think that’s the correct test, then we’d like the opportunity to submit

additional evidence . . . to prove that that intersection was not a good place

for commercial access for these lots to the east, and in addition, we’d like the 

opportunity to prove that they didn’t suffer the damages that they claim.” 

Additional evidence was not submitted to the circuit court.

22. The circuit court did not make a determination regarding whether Schliem’s 

alleged injury was peculiar to his land and not the kind suffered by the public 

in general.

23. While findings of fact and conclusions of law are “unnecessary” in summary 

judgment cases, see SDCL 15-6-52(a), a reasoned analysis to support the 

conclusion that a substantial impairment did or did not occur in light of the 

unique facts of the case is warranted due to the fact-intensive nature of 

inverse-condemnation cases.
#27557

-26-

[¶35.] “The determination whether a substantial impairment occurred 

requires a court to consider the unique fact pattern in each case.” Id. ¶ 44. Factors 

that the court may consider include “the nature of the property involved, the 

character of the access before and after governmental activity, and the location 

(rural or urban).” Id. Moreover, even where normal access remains available, the 

court may consider whether the “access for which the property was specifically 

intended [has been] rendered [unreasonably] deficient.” Id. (quoting State v. 

Dawmar Partners, Ltd., 267 S.W.3d 875, 879 (Tex. 2008)). In this particular case, 

the State did not physically take any of Schliem’s land. Therefore, Schliem must 

also demonstrate that the alleged injury he suffered is peculiar to his land and not 

the kind suffered by the public in general. Bloom, 77 S.D. at 461, 93 N.W.2d at 577. 

[¶36.] This Court has continually held that “[t]he difference between ‘mere 

circuity of travel’ and unsuitable access is one of degree, and is directly related to 

the unique fact pattern in every case.” Miller & Walsh, 2016 S.D. 88, ¶ 43 n.3, ___ 

N.W.2d at ____ n.3 (quoting 8A Rohan & Reskin, supra ¶ 16, § G16.03[2][a]).24 The 

 

24. See also Darnall, 79 S.D. at 70, 108 N.W.2d at 207 (“[W]here there is no 

physical taking and the owner’s access to the highway on which he abuts is 

not unreasonably diminished or interfered with, his loss is due to the 

diversion of traffic, a lawful exercise of the police power and there can be no 

recovery.”); Hurley, 82 S.D. at 163, 143 N.W.2d at 726 (“In each case, 

therefore, the relative rights of the public and private interests must be 

considered and the reasonableness of the regulation and the degree of its 

interference with private property determined. If, after the construction of a 

public improvement an abutting landowner continues to have reasonable 

access to his property, he has no compensable complaint. But if the right of 

access is destroyed or materially impaired, the damages are compensable if 

the injury sustained is peculiar to the owner’s land and not of a kind suffered 

by the public generally.”); Hall, 2006 S.D. 24, ¶ 18, 712 N.W.2d at 29 (“[A] 

landowner’s right of access and the state’s police power to regulate highways 

(continued . . .)
#27557

-27-

majority concludes that Schliem’s “access routes before and after the Intersection’s 

closure are nearly identical,” supra ¶ 18, and focuses on circuity of travel. In doing 

so, it fails to adequately consider and balance Schliem’s evidence. Further, it 

attempts to balance the parties’ relative rights and interests on an incomplete 

record. 

[¶37.] Schliem alleged that his remaining access was unreasonable and that 

the highest and best use of his property changed from commercial to industrial. In 

Hurley, this Court considered a property’s highest and best use when determining 

whether a substantial impairment occurred.25 82 S.D. at 163-64, 143 N.W.2d at 

________________________

(. . . continued)

often conflict. This conflict clearly manifests when the state eliminates an 

abutting landowner’s highway access . . . the relationship between the rights 

of the property owner and the rights of the state must be considered in light 

of the facts of each case.”). 

25. Although Hurley involved an abutting landowner, this case is no different. 

Abutting and nonabutting landowners may have differing property rights. 

However, the change in highest and best use in Hurley went toward 

determining whether the property right had been substantially impaired—

not whether there was an initial property right. 

Before the construction of Interstate 90 free, open, and unobstructed 

access was available from the property to both Omaha Street on the 

south and West Boulevard on the east. Its highest, best and most 

profitable use was for an automobile service station and one of the 

major considerations contributing to its value for such purpose was the 

right of access to two streets. Negotiations with major oil companies 

were in progress when the state erected the steel barrier closing all 

access to the property from West Boulevard and for a limited distance 

on Omaha Street. The barrier left access only to the west-bound traffic 

on Omaha Street. Likewise, all pedestrian traffic was closed off from 

the east and from the south. Consequently, the Referee correctly 

concluded plaintiffs’ right of access was substantially impaired and 

they suffered a compensable loss.

Hurley, 82 S.D. at 163-64, 143 N.W.2d at 726.
#27557

-28-

726. Other jurisdictions also recognize highest and best use of a property as a factor 

to consider in determining whether access rights have been substantially impaired. 

8A Rohan & Reskin, supra ¶ 16, § G16.03[2][a] (“Some courts hold that the issue of 

reasonable remaining access can only be determined with reference to the highest 

and best use of the property.”). In New York, it is well settled that “[s]uitability of 

access is not to be determined in the abstract, but in relation to the need for access 

inherent in the highest and best use of the property.” E.g., Chemung Canal Tr. Co. 

v. State, 456 N.Y.S.2d 518, 519 (N.Y. App. Div. 1982). Other courts have rejected 

this notion. See Dawmar, 267 S.W.3d at 879 (“We have implicitly rejected the 

proposition that the degree of impairment of access must be evaluated in light of a 

property’s highest and best use.”). Regardless, it is implicit from the language used 

by this Court in Hurley that it endorsed consideration of the highest and best use of 

the property as a factor when determining whether a substantial impairment of 

access occurred. See supra n.25.

[¶38.] Ordinarily, on review, this Court considers the unique fact pattern of 

the case and then ascertains the degree of the alleged impairment. However, 

because there was inadequate evidence presented to the circuit court on the 

reasonableness of Schliem’s remaining access, a fully balanced consideration cannot 

be made and prevents a determination of whether Schliem’s access rights were 

substantially impaired. 

[¶39.] In addition to having an incomplete record, the circuit court decided 

this case before our decision in Miller & Walsh. In that case, we reversed and 

remanded and articulated specific factors that the court should use when 
#27557

-29-

determining whether access rights were substantially impaired. Those factors 

included “the nature of the property involved, the character of the access before and 

after governmental activity, and the location (rural or urban).” Miller & Walsh, 

2016 S.D. 88, ¶ 44, ___ N.W.2d at ___. We also provided that the court must 

consider whether the “access for which the property was specifically intended [has 

been] rendered [unreasonably] deficient.” Id. It is unclear precisely what factors 

the circuit court used when it concluded that Schliem’s access rights were not 

substantially impaired, but it certainly did not have the benefit of this Court’s 

guidance when this case was decided. 

[¶40.] Based on the arguments and admissions of the parties, there was some 

confusion as to what test applied in this case. See Hall, 2006 S.D. 24, ¶ 20, 712 

N.W.2d at 30 (“Undoubtedly, the trial court’s analysis was hindered by the parties’ 

failure to thoroughly address the issues or offer sufficient evidence.”). The State 

argued that the court should disregard the reasonableness of Schliem’s remaining 

access—even though that is a factor in determining whether his access rights were 

substantially impaired. Schliem focused on the devaluation of his property. And 

while the circuit court articulated the correct test, there was also confusion on the 

part of the court when it found that Schliem did not have a property right but then 

went on to conclude that Schliem’s right of access was not substantially impaired.

[¶41.] All in all, this was a rush to summary judgment.26 The circuit court 

and this Court were not presented with adequate evidence to determine whether 

 

26. The majority suggests that there are no genuine issues of material fact in 

dispute and that Schliem, in filing his own motion for summary judgment, 

(continued . . .)
#27557

-30-

the State substantially impaired Schliem’s access. I would reverse and remand for 

an evidentiary hearing to more fully develop the record and to apply the test 

articulated in Miller & Walsh. If the circuit court concludes that Schliem’s access 

rights were substantially impaired, it must then determine whether that 

impairment was peculiar to his land.

________________________

(. . . continued)

“necessarily represented to the court that the material facts of this case were 

undisputed.” Supra ¶ 11. However, we have held that cross-motions for 

summary judgment do “not mean that there are no genuine issues, obliging a 

court to grant judgment for one side or the other. Both motions must be 

denied if the court detects genuine issues of fact or genuine issues regarding 

the inferences to be drawn from the facts.” St. Paul Fire & Marine Ins. Co. v. 

Engelmann, 2002 S.D. 8, ¶ 15, 639 N.W.2d 192, 199. Here, there were 

inferences to be drawn from the facts necessary to make a determination on 

substantial impairment. Moreover, Hall came to this Court on cross-motions 

for summary judgment; yet we still reversed and remanded because the 

parties disagreed on the purpose of the State’s action. Hall, 2006 S.D. 24, 

¶ 21, 712 N.W.2d at 30. In this case, the parties disagreed on the 

reasonableness of the remaining access—a factor which the circuit court must 

consider before deciding whether Schliem’s access had been substantially 

impaired.