#28006-a-LSW

2017 S.D. 29 

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

TIMOTHY ASPER and

GALAZIN FAMILY, LLC, Petitioners and Appellants,

v.

BRADLEY NELSON, ROBERT

SICHMELLER and RAY LARDY,

as supervisors for Raritan Township 

and RARITAN TOWNSHIP,

DAY COUNTY, SOUTH DAKOTA, Respondents and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIFTH JUDICIAL CIRCUIT

DAY COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JON S. FLEMMER

Judge

* * * *

DAVID A. GEYER of

Delaney, Nielsen & Sannes, PC

Webster, South Dakota Attorneys for petitioners 

and appellants. 

JAY M. LEIBEL

Madison, South Dakota Attorney for respondents 

and appellees.

* * * *

CONSIDERED ON BRIEFS

APRIL 24, 2017

OPINION FILED 05/24/17
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WILBUR, Justice 

[¶1.] Two township residents petitioned the circuit court to issue a writ of 

mandamus compelling the township to repair and maintain two secondary roads. 

After two hearings, the circuit court denied the request to issue a writ because the 

court concluded that the township proved that it was unable to perform its 

mandatory duty to repair and maintain the two secondary roads. The residents 

appeal. We affirm. 

Background 

[¶2.] On November 19, 2015, Timothy Asper and Galazin Family, LLC 

petitioned the circuit court to issue a writ of mandamus ordering Raritan Township 

in Day County, South Dakota, to either repair and maintain 132nd Street and 431st 

Avenue and make the roads passable or show cause why it should not be done. 

SDCL 31-13-1 imposes a duty on the Raritan Township Board to repair and 

maintain 132nd Street and 431st Avenue, which are secondary roads within the 

Township. The roads had provided Asper and Galazin Family access to their real 

property located within the Township. In their affidavits supporting their petition 

for a writ of mandamus, Asper and Galazin Family alleged that they had repeatedly 

requested that the Township repair and maintain the roads, but the Township had 

refused to do so for the last four years. 

[¶3.] On December 22, 2015, the circuit court issued an alternative writ of 

mandamus. The court ordered the Township and the Township board members to 

repair and maintain 132nd Street and 431st Avenue or show cause why the writ 

should not be made permanent. The court held a hearing in February 2016. 
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During the hearing, the court heard evidence from Asper and the Township. Asper 

testified that he owns approximately 97 acres on which his home resides. He 

purchased the property in 2008 and had access to the property via 132nd Street and 

431st Avenue. Galazin Family owns approximately 280 acres of farmland in the 

same vicinity and had access to the property via 132nd Street and 431st Avenue. 

Both 132nd Street and 431st Avenue are improved section-line roads and portions 

of both roads border a lake. In the spring 2011, the water level of the bordering 

lake flooded and made impassable portions of both 132nd Street and 431st Avenue. 

Asper testified that to access his home, he must now cross private pasture land, 

State land, private farmland, and private crop land. Galazin Family must also 

cross private land to get to its property. 

[¶4.] The Township, via testimony from the township clerk, identified that 

its yearly budget for road maintenance was approximately $25,000, and in 2015, the 

Township had approximately $9,000 remaining. The clerk also testified that no 

maintenance had been done on 132nd Street or 431st Avenue since 2010. Township 

Board Supervisor Brad Nelson had been a township supervisor for the past nine 

years. He testified that the Township received $23,470 in 2015, which included 

$12,897 in real estate taxes. Nelson explained that although the Township had 

approximately $56,000 in a money market account, that money had been given to 

the Township by FEMA and was allocated to other roads not including 132nd Street 

or 431st Avenue. Nelson asserted that the Township, with assistance of various 

governmental entities, had spent approximately $256,000 from 1995 to 2010 to 

repair and keep the roads passable in light of the ever-increasing water levels of the 
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bordering lake. Nelson claimed that after those initial repairs the Township never 

discussed doing a special levy to fund subsequent repair and maintenance of the 

roads.

[¶5.] At the conclusion of the hearing, the circuit court held that the 

Township had a mandatory duty to repair 132nd Street and 431st Avenue. The 

court, however, found that “[h]ere, it isn’t a matter of the township neglecting the

road, it’s a matter of whether or not the township has the ability to correct the 

problem.” The court concluded that it could not decide that question until the 

Township obtained a recent estimate for the cost of repair. The court issued 

“mandamus for the sole purpose” of “directing the [T]ownship to obtain a written 

estimate to raise the road so that that amount can then be reviewed by the 

[T]ownship and a determination made at [its] discretion whether [it is] able to 

generate the funds necessary to complete that - - that estimate.” It directed that 

the matter would remain open and that Asper and Galazin Family could request 

further review by the court. The court issued findings of fact and conclusions of 

law. 

[¶6.] In a subsequent hearing on August 26, 2016, the parties offered 

competing estimates to the circuit court. Asper presented an estimate from Hofland 

Engineering, which was the same engineering company that had raised the road in 

prior years. According to Hofland Engineering’s estimate, the cost to repair the 

roads would be $473,000 with possible additional expenses in the future. Asper 

testified that he and Galazin Family would contribute $25,000 to assist the 

Township in building up the roads. 
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[¶7.] The Township, through testimony by current Township Board 

Chairman Robert Sichmeller, testified that the Township received estimates from 

Webster Scale, Inc. for $1,380,500 and Foothill Contracting for $1,178,560. 

Sichmeller also testified that the Board held a special meeting in March 2016 to 

decide whether the Township could build a road for Asper and Galazin Family. The 

Board concluded, based on the estimates it had received, that the Township could 

not repair the roads. On cross-examination, Sichmeller agreed that the Board had 

not conducted a special tax assessment to fund the repair of the roads and that the 

Board had never taken a vote to get a bond to improve the roads. He, however, 

claimed that the Board’s attempt to obtain additional funding from the Township’s

residents would not be “favorable.”

[¶8.] The court issued an oral ruling at the conclusion of the hearing. The 

court referred to the parties’ estimates and acknowledged that Asper and Galazin 

Family agreed to pay $25,000. The court also recognized that it could order the 

Township to go through the steps of attempting to obtain the necessary funding. 

But, according to the court, “that would seem to be a further expenditure of 

resources on the part of all parties that isn’t going to be able to accomplish” Asper 

and Galazin Family’s goal. The court held that the Township established that it 

was not possible for the Township to fund the repair and maintenance of 132nd 

Street and 431st Avenue as identified in the estimates—including the estimate from 

Hofland Engineering for $473,000. The court issued findings of fact and conclusions 

of law and an order denying the alternate writ of mandamus, amended alternate

writ of mandamus, and Asper and Galazin Family’s motion for further review. 
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[¶9.] Asper and Galazin appeal, asserting that the circuit court abused its 

discretion when it denied the issuance of a writ of mandamus. 

Analysis 

 

[¶10.] Asper and Galazin Family argue that the Township failed to prove that 

mandamus would be unavailing because the Township has yet to attempt 

everything possible to raise the funds necessary to perform its mandatory duty to 

repair and maintain 132nd Street and 431st Avenue. Asper and Galazin Family 

emphasize that they have a clear legal right to have the roads repaired and 

maintained and that they have no legal remedy other than mandamus. So, in their 

view, until the Township exhausts all potential funding resources, such as the 

issuance of a bond under SDCL chapter 8-11, the circuit court did not have 

discretion to deny the writ of mandamus. 

[¶11.] “Circuit courts possess discretion in deciding whether to grant a writ of 

mandamus; thus, the appropriate standard of review on appeal is abuse of 

discretion.” Willoughby v. Grim, 1998 S.D. 68, ¶ 6, 581 N.W.2d 165, 167. “The 

granting of a writ of mandamus is not a matter of absolute right, but is vested in 

the sound discretion of the court; and, where there is reason to doubt the necessity 

or propriety of issuing it, it should be refused.” Anderson v. City of Sioux Falls, 

384 N.W.2d 666, 668 (S.D. 1986). It is also “the generally accepted rule that there 

may be considerations of justice which will justify a refusal of the writ, although 

there may be no other appropriate and adequate remedy.” City of Sioux Falls v. 

Sioux Falls Traction Sys., 53 S.D. 471, 221 N.W. 84, 85 (1928). For example, “[i]n 

some instances, difficulties in enforcement of mandamus may call for denial of 
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relief.” Willoughby, 1998 S.D. 68, ¶ 12, 581 N.W.2d at 169. Likewise, “[m]andamus 

will not be granted when it would be unavailing.” Id. (quoting State v. Hahn, 

69 S.D. 275, 278, 9 N.W.2d 502, 503 (1943)). 

[¶12.] The Township has an affirmative duty to repair and maintain 132nd 

Street and 431st Avenue, and Asper and Galazin Family have a clear legal right to 

the performance of the Township’s duty. The circuit court recognized as much. But 

the court also held that the Township proved that it was unable to perform its legal 

duty because it would be unable to procure the funds necessary to repair and 

maintain the roads. From our review, the court did not abuse its discretion. 

[¶13.] This is not a case of a lack of immediate funds or a mere financial 

hardship. The Township offered testimony that it receives approximately $13,000 a 

year in real estate taxes, and it operates on an annual budget for road maintenance 

at approximately $25,000. The lowest estimate to repair the roads was $473,000,

and that estimate indicated that additional repairs in the future may be necessary. 

[¶14.] Yes, the Township is statutorily authorized to sell bonds upon approval 

“by a two-thirds vote of the registered voters present and voting at any annual 

township meeting or special township meeting called for that purpose.” SDCL 

8-11-3. But the Township would have to raise approximately 19 times its annual 

budget to cover the lowest estimate to repair the roads, a number which does not 

include the costs associated with calling for an election to raise money by selling 

bonds. And in order to repay the bonds, the Township must levy a tax to be used 

specifically for the repayment of the bonds. SDCL 8-11-7. We also note that neither 

the parties nor the court addressed any constitutional or statutory limits on the 
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Township’s ability to incur debt or the viability of issuing and selling bonds. See

S.D. Const. art. XIII, § 4; SDCL ch. 31-13. Similarly, the evidence supports the 

court’s view that a special assessment would obligate the subject property for 

potentially more than the property’s value. 

[¶15.] Nonetheless, Asper and Galazin Family argue that the Township must 

“prove that it was impossible to get the funding to repair the roads.” (Emphasis 

added.) They also claim that any difficulty in obtaining funds is immaterial because 

“[e]quitable defenses have no bearing in this matter.” On the contrary, “the right to 

a writ of mandamus may turn on equitable considerations[.]” United States v. 

Helvering, 301 U.S. 540, 543, 57 S. Ct. 855, 857, 81 L. Ed. 1272 (1937). We also 

note that the court could not order the Township to use or exhaust particular 

methods, including special assessment or bond, to attempt to obtain the funds. The 

Township has discretion in how it carries out its duty to repair and maintain its 

roads. See Willoughby, 1998 S.D. 68, ¶ 11, 581 N.W.2d at 169 (“Orders compelling 

the exercise of this discretion are ill-suited to mandamus relief.”). Because the 

Township proved that it “has not willfully placed itself in a position where it cannot 

perform its legal duty, and it appears that it is unable to do so,” the circuit court did 

not abuse its discretion when it denied the writ. See Sioux Falls Traction Sys., 

53 S.D. 471, 221 N.W. at 86. 

[¶16.] Affirmed.

[¶17.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.