#29859-a-MES

2023 S.D. 58

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

THE STATE OF SOUTH DAKOTA,

Acting by and through the

Department of Transportation and the

South Dakota Transportation Commission, Plaintiff and Appellee,

v.

LEGACY LAND CO., Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE STACY VINBERG WICKRE

Judge

* * * *

JEFFREY G. HURD

EMILY M. SMORAGIEWICZ of

Bangs, McCullen, Butler,

 Foye & Simmons, LLP

Rapid City, South Dakota Attorneys for defendant

and appellant.

MARTY J. JACKLEY

Attorney General

SHANE M. PULLMAN

Special Assistant Attorney General

South Dakota Department of Transportation

Pierre, South Dakota Attorneys for plaintiffs

and appellees.

* * * *

CONSIDERED ON BRIEFS

OCTOBER 3, 2022

OPINION FILED 11/15/23
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SALTER, Justice

[¶1.] As part of a highway improvement project, the South Dakota 

Department of Transportation (DOT) constructed a median in the highway abutting 

property owned by Legacy Land Company (Legacy). The median did not eliminate 

access to the Legacy property, but it changed it. Vehicles could no longer make a 

left turn directly into the Legacy property, and those leaving the Legacy property 

could only turn right onto the highway. Legacy argued that the median effected a 

taking and sought compensation, but the circuit court disagreed and granted the 

DOT’s motion for summary judgment, which Legacy now appeals. We affirm.

Factual and Procedural History

[¶2.] Legacy owns approximately 26.3 acres of undeveloped land on the

north side of Catron Boulevard1 in Rapid City. Prior to 2010, Catron Boulevard 

was a two-lane highway that permitted traffic coming from either direction to turn 

into the Legacy property. Vehicles leaving the property could also turn left or right 

onto the highway.

[¶3.] In 2010, the DOT began a project to upgrade the highway by creating 

two lanes of traffic going each direction separated by a median. Prior to the 

highway expansion project, the DOT named Legacy in a petition seeking to 

condemn a small portion of Legacy’s land for drainage in addition to obtaining a 

temporary easement during construction, neither of which are directly related to 

construction of the median.

1. Catron Boulevard is also known as U.S. Highway 16B.
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[¶4.] Once the median was completed, Legacy’s three shareholders noted the 

impact it had upon access to their property. The median does not allow eastbound 

traffic to immediately access the Legacy property by simply turning left. Instead, 

motorists must change directions by turning around at median breaks located along 

the divided highway. Those leaving the Legacy property are also impacted by the 

presence of the median and may only turn right into the westbound lane of travel.

[¶5.] The case generated little record activity for several years before 2016 

when Legacy filed a motion seeking declaratory relief in which it alleged the DOT 

“had caused compensable damages” and sought a declaration that the DOT’s 

construction of the median constituted a taking under Article VI of the South 

Dakota Constitution. The DOT disagreed and sought to resolve the issue by filing 

the first of two motions for summary judgment. The circuit court denied this initial 

summary judgment motion at a September 2016 hearing after concluding there 

were disputed issues of material fact relating to the intended uses of the land. The 

court did not address the motion for declaratory relief, and Legacy advised the court 

that it did not intend to pursue the request for formal declaratory relief, given the 

fact that the takings issue was being substantively litigated as part of the original 

condemnation action.

[¶6.] After the parties engaged in pretrial discovery, the DOT renewed its 

request for summary judgment through a second motion in 2021. Citing the legal 

standard set out in our cases, the DOT argued that the Catron Boulevard median 

did not substantially impair Legacy’s right of access to its property. Along with its 
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motion, the DOT filed a statement of undisputed material facts to which Legacy 

responded.

[¶7.] In an affidavit, Legacy shareholder Scott Nash stated that at the time 

of construction, Legacy asked the DOT to install a median break in front of its 

property, but the request was denied. Pursuant to access management guidelines 

contained in administrative rules promulgated by the DOT, median breaks on an 

expressway, such as Catron Boulevard, should be placed at half-mile increments. 

ARSD 70:09:02, App. A. Under ordinary circumstances, the DOT would have 

applied this rule and installed a median break corresponding roughly to the western 

edge of the Legacy property, half a mile from the junction of Catron Boulevard and 

Highway 79. However, in this instance, the DOT used its authority under the 

administrative rules to vary from the standard access plan and install a median 

break 610 feet east of the access approach to the Legacy property. In this location, 

the median break provides direct access to both lanes of traffic for a number of state 

facilities located on the south side of the highway, including a weigh station, a 

South Dakota Highway Patrol building, and a South Dakota National Guard 

installation.

[¶8.] An aerial image on which the Legacy property is listed as “SITE” 

provides a helpful illustration:
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[¶9.] Mark Leiferman, Chief Road Design Engineer for the DOT, explained 

in an affidavit that eastbound traffic could get to the Legacy property by proceeding 

past it and making a U-turn at the median break 610 feet to the east. Vehicles 

leaving the Legacy property wanting to travel east must first turn right and proceed 

west before making a U-turn in the first median break 1,136 feet from the Legacy 

property. Legacy acknowledges that these routes allow access for passenger 

vehicles, but it claims these options are not reasonable for larger commercial 

vehicles.2

[¶10.] Neither party disputed that these U-turns would not be possible for 

semi tractor-trailers and other large commercial vehicles. For these, the DOT 

contended that large eastbound commercial vehicles seeking access to Legacy’s 

property could turn into the weigh station area and loop back through the median 

2. Legacy’s acknowledgement came in response to the DOT’s statement of 

undisputed material facts, though Legacy’s shareholders also reported 

difficulty navigating the U-turn with their personal vehicles, which include a 

large pickup and a sport utility vehicle.
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break for a total additional distance of less than half a mile. For a large commercial 

vehicle leaving the Legacy property wishing to go east, the DOT cited a report by 

Legacy’s expert, who stated that a semi tractor-trailer could reroute to the east by 

turning at 5th Street and using existing streets.

[¶11.] Legacy’s expert was a professional engineer named Brian Horan, who 

stated that the construction of the median did “not provide reasonable access” 

consistent with the zoned uses which allow for commercial and medium density 

residential development. Horan also confirmed that the U-turn at the medians to 

the east and west would be possible for passenger vehicles but not for larger 

commercial vehicles. For larger vehicles moving eastbound, Horan noted they could 

“travel to E. Minnesota St. to circulate off of Elk Vale Rd and back to the site 

approximately 1.3 miles to the east.” Horan did not provide an exact additional 

distance that larger vehicles would be required to travel when leaving the Legacy 

property in order to head east, but he stated that it could be accessed by “circulating 

through the grid of streets” likely through neighborhoods to the north.

[¶12.] Horan also referenced plans for a future frontage road which he 

sourced to a “Comprehensive Plan” that provided transportation recommendations 

and was published by the City of Rapid City in 2014. Horan opined that “once 

constructed, [the frontage road] would provide convenient opportunities to access 

the site from either direction.” But Horan’s letter added, “[c]urrently no plans or 

funding are available to construct these roadways and will likely be built coincident 

with site development.” The location of the proposed frontage road is illustrated in 

the following map:
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[¶13.] The circuit court granted the DOT’s motion for summary judgment in a 

written decision, concluding the construction of the median did not result in a 

compensable taking. In the court’s view, the Catron Boulevard median did not 

substantially impair access to the Legacy property even for large commercial 

vehicles because there were other ways for these vehicles to access Legacy’s 

property without having to make U-turns at the median breaks. Focusing 

principally on aerial photographs, the court described an access route to the east of 

Legacy’s property that was essentially the option described by the DOT.

[¶14.] To the west, the circuit court noted, as Legacy’s expert had, that future 

development plans contemplate an extension of a road, known as Stumer Road, 

which would then serve as a frontage road for convenient access for future 

commercial development on Legacy’s property.

[¶15.] Legacy moved for reconsideration, arguing the circuit court determined 

disputed facts when it concluded that the restrictions on access created by the 

Catron Boulevard median were reasonable and did not substantially impair 
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Legacy’s right of access. In particular, Legacy claimed there was “no undisputed 

evidence” in the record regarding: 1) the specific alternate routes to Legacy’s 

property; and 2) “what conditions surround[] any alternative access routes [that] 

make them potentially reasonable or unreasonable.” The court denied Legacy’s 

motion to reconsider.

[¶16.] Legacy has appealed, arguing the court erred when it determined that 

the DOT’s installation of the median did not substantially impair access to its 

property and cause a compensable taking.

Analysis and Decision

[¶17.] Our review of a circuit court’s determination of a summary judgment 

motion is well established.

A grant or denial of summary judgment is reviewed de novo. 

When conducting a de novo review, we give no deference to the 

circuit court’s decision to grant summary judgment. When 

reviewing a circuit court’s grant of summary judgment, this 

Court only decides whether genuine issues of material fact exist 

and whether the law was correctly applied. We view the 

evidence most favorably to the nonmoving party and resolve 

reasonable doubts against the moving party.

Yankton Cnty. v. McAllister, 2022 S.D. 37, ¶ 15, 977 N.W.2d 327, 334 (citations 

omitted).

[¶18.] Additionally, and of particular importance in this case, “[t]he 

nonmoving party . . . must present specific facts showing that a genuine, material 

issue for trial exists.” Sacred Heart Health Servs., Inc. v. Yankton Cnty., 2020 S.D. 

64, ¶ 11, 951 N.W.2d 544, 548 (quoting Zochert v. Protective Life Ins. Co., 2018 S.D. 

84, ¶ 19, 921 N.W.2d 479, 486). “[T]he nonmoving party to a summary judgment 

motion may not sit idly by where the moving party has established a prima facie 
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case for granting the motion.” Kimball Inv. Land, Ltd. v. Chmela, 2000 S.D. 6, ¶ 17 

n.3, 604 N.W.2d 289, 294 n.3.

[¶19.] Article VI of the South Dakota Constitution provides that “[p]rivate 

property shall not be taken for public use, or damaged, without just 

compensation[.]” S.D. Const. art. VI, § 13. To resolve takings questions, we must 

first decide “whether a recognized property right has been infringed by state 

conduct.” Schliem v. State ex rel. Dep’t of Transp., 2016 S.D. 90, ¶ 13, 888 N.W.2d 

217, 224. “[T]he determination whether a property interest was taken or damaged 

for public use is a question of law for the court.” State ex rel. Dep’t of Transp. v. 

Miller, 2016 S.D. 88, ¶ 43, 889 N.W.2d 141, 154; see also SDCL 31-19-4 (stating 

that, in condemnation cases, “[t]he only issue that shall be tried by the jury upon 

the petition shall be the amount of compensation to be paid for the property taken 

or damaged.”); SDCL 21-35-15 (same).

[¶20.] As it relates to the takings issue in this appeal, we have recognized 

that “[a]ccess is a property interest.” Miller, 2016 S.D. 88, ¶ 42, 889 N.W.2d at 154. 

But that is not to say that all restrictions upon access to property constitute a 

taking:

[A]n abutting landowner has a right of ingress and egress that 

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. However, the right 

of ingress and egress . . . [is] subject to reasonable regulations in 

the public interest and for the promotion of public convenience 

and necessity. Where 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 

diversion of traffic, a lawful exercise of the police power and 

there can be no recovery.
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Id. (cleaned up).

[¶21.] Under the resulting rule, “[t]he right of access is infringed in the 

constitutional sense only when it is destroyed or substantially impaired.” Schliem, 

2016 S.D. 90, ¶ 17, 888 N.W.2d at 227.3 “Substantial impairment of access is not 

the same as diversion of traffic or mere circuity of travel. The difference is a matter 

of degree and depends on the fact pattern in each case.” Miller, 2016 S.D. 88, ¶ 43, 

889 N.W.2d at 154–55 (footnote omitted). As part of this case-by-case analysis, a 

court may consider factors such as “the nature of the property involved, the 

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

(rural or urban).” Id. ¶ 44, 889 N.W.2d at 156. However, “[c]ourts uniformly agree 

that a reduction in value resulting from ‘diversion of traffic’ is noncompensable, as 

is ‘mere circuity of travel.’” Id. ¶ 43 n.3, 889 N.W.2d at 154. We have observed, in 

this regard, that:

Although [m]ost directional traffic regulations, by their very 

nature, involve mere diversion of traffic and circuity of travel, 

some may nevertheless result in a substantial impairment of 

access. For example, governmental activity that totally 

landlocks a parcel which previously had access is a taking of 

property. Likewise, substantial increases in circuity may be 

compensable.

Schliem, 2016 S.D. 90, ¶ 17, 888 N.W.2d at 227 (cleaned up).

3. Consistent with the general view that takings determinations present 

questions for the court, we have held specifically that whether a landowner’s 

right of access has been substantially impaired is a question of law for the 

court to decide. Schliem, 2016 S.D. 90, ¶ 10, 888 N.W.2d at 222–23. 

Additionally, “the question whether replacement access is reasonable is 

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

been substantially impaired.” Id. ¶ 10, 888 N.W.2d at 222.
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[¶22.] Here, the circuit court correctly applied these substantive takings 

principles and the summary judgment standard to conclude that the installation of 

the Catron Boulevard median did not constitute a taking. Legacy’s access was not 

eliminated, and some additional perspective concerning the impact of the median is 

helpful, particularly in light of the dissent’s view.

[¶23.] There are four potential access options involving Legacy’s lot—entry 

from the east, entry from the west, exit to the east, and exit to the west. For half of 

these, the undisputed material facts establish that the median and directional 

control creates no impairment, substantial or otherwise. Entry from the east and 

exit to the west are entirely unaffected by the median. And there is no argument 

that access from the west and exit to the east are substantially impaired for any 

other class of vehicles, besides the largest types of trucks and semi tractor-trailers.

[¶24.] For these vehicles that are not able to execute a U-turn at the median 

breaks, there are other routes to access the property that, while adding to the 

circuity of travel, do not substantially impair access. For instance, semi tractortrailers traveling east can turn into the weigh station area to turn around and 

proceed back west to the Legacy property, totaling less than a mile of circuity. But 

even if this route were impractical, Legacy’s expert stated that vehicles from the 

west could travel a separate route which adds about 1.3 miles.

[¶25.] Larger vehicles leaving the Legacy property wishing to head east can 

turn right and head west a short distance before turning on 5th Street and 

navigating the streets to change directions back to the east. For this class of traffic, 

Legacy has not supported its circuity of travel claim with specific facts that 
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establish how far the additional travel to reroute back to the east would be. Its 

expert explained only that larger vehicles could travel back east “through the grid of 

streets accessed from 5th St.,” which the maps in the record confirm is a similar 

additional distance to that of the vehicles attempting to access the property from 

the west. Maps contained in the record also indicate that the 5th Street 

intersection is less than a mile from Legacy’s property.

[¶26.] In any event, it is not necessary for a court to identify the specific route 

for larger vehicles in order to correctly assess the degree of relative impairment; it 

is only necessary for a court to make a sustainable legal determination that other 

available routes are not so onerous that there is substantial impairment of access. 

And in this regard, the test for determining a compensable taking is not solely 

restricted to circuity of travel for a particular class of vehicles. Here, the record 

supports the circuit court’s determination that there are sufficient alternative 

routes for larger vehicles to access and leave the Legacy property.

[¶27.] Beyond these observations regarding access after the installation of 

the median, our decisional law also directs the court to consider the nature of the 

affected property in determining the question of substantial impairment. See 

Miller, 2016 S.D. 88, ¶ 44, 889 N.W.2d at 156. Legacy steadfastly argues that its 

property should be considered commercial in nature, citing the fact that it has 

installed sewer and water infrastructure with future commercial development in 

mind.

[¶28.] But even accepting Legacy’s assertions in this regard does not detract 

from the circuit court’s conclusion and Legacy’s acknowledgment that it has no 
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immediate development plan for the property, which is currently an empty lot.4 

Legacy has not demonstrated the existence of disputed facts regarding the present 

or future need for large vehicles to access the property. For instance, there is no 

indication of how many or how frequently large vehicles need to access the 

property.5

[¶29.] The most Legacy can claim is that its property holds the potential for 

commercial development. When future development does occur, Legacy’s expert 

opined, it would likely coincide with the extension of Stumer Road to a frontage 

road that provides direct access to the Legacy property consistent with the City’s 

2014 Comprehensive Plan. The circuit court reached the same conclusion.

[¶30.] Though the circuit court determined that Legacy had no current 

development plan, the court specifically acknowledged the potential for commercial 

development at the Legacy site, noting that the City’s 2014 Comprehensive Plan 

allows “substantial flexibility in the development to adapt to surrounding changes, 

such as expansion of surrounding highways and roads.” These conclusions are 

supported by the record.

4. Legacy claims that it had previously submitted commercial development 

plans to the City of Rapid City. The record is not clear on when this 

development plan was submitted or its details, but Legacy’s attorney agreed 

with the assertion by counsel for the DOT at the summary judgment hearing 

that currently “there’s not a development plan filed with the city for future 

development of this property.”

5. That is not to say that access to an undeveloped lot cannot be substantially 

impaired. We held in Hurley v. State that a highway project that eliminated 

access to an undeveloped lot could constitute a taking. 82 S.D. 156, 165, 143 

N.W.2d 722, 727 (1966). Here, however, access to Legacy’s property is most 

certainly not eliminated, and we do not view the result in Hurley to be 

controlling.
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[¶31.] As it is presented here, Legacy’s assertion that it now cannot develop 

the land to its full potential is essentially a valuation argument. However, our 

decisions make clear that we cannot reach a valuation question unless and until 

there is a determination that the State’s action resulted in a compensable taking or 

damage claim. See Schliem, 2016 S.D. 90, ¶ 14, 888 N.W.2d at 224 (“[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.’” (quoting Darnall v. State, 

79 S.D. 59, 70, 108 N.W.2d 201, 207 (1961))). Indeed, if we were to accept the 

argument, Legacy could potentially receive compensation for restricted access it has 

not needed to undeveloped land.

[¶32.] Legacy’s principal and recurring argument is that there is “no 

undisputed evidence” in the record regarding the reasonableness of the access 

restriction created by the Catron Boulevard median. However, this view fails to 

account for Legacy’s obligation as the non-moving party in a summary judgment 

proceeding. Legacy may not, as indicated above, stand idly by in circumstances like 

those present here where the DOT has presented undisputed facts to establish a 

colorable claim that the presence of the Catron Boulevard median has not 

substantially impaired Legacy’s access to its property.

[¶33.] It is true, as Legacy argues, that the reasonableness of the restriction 

implicates a fact-intensive inquiry relating to the substantial impairment 

determination. But this does not necessarily preclude summary judgment or 

require a trial. The contrary view operates on the incorrect premise that summary 
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judgment is categorically never authorized for fact-intensive inquiries, such as the 

taking/substantial impairment analysis here.

[¶34.] Even inquiries which are factual in nature are amenable to summary 

judgment where the material facts—the ones that matter to the outcome—are 

undisputed. See SDCL 15-6-56(c) (Rule 56) (“The judgment sought shall be 

rendered forthwith if . . . there is no genuine issue as to any material fact and . . . 

the moving party is entitled to a judgment as a matter of law.”); see also Davies v. 

GPHC, LLC, 2022 S.D. 55, ¶ 28, 980 N.W.2d 251, 261 (noting that not “all factual 

questions are disputed”). As indicated above, a non-moving party resisting 

summary judgment on the basis that there are disputed issues of material fact must 

“substantiate [its] allegations with sufficient probative evidence that would permit 

a finding in [its] favor on more than mere speculation, conjecture, or fantasy.” 

Davies, 2022 S.D. 55, ¶ 29, 980 N.W.2d at 261 (quoting Stern Oil Co. v. Brown, 2012 

S.D. 56, ¶ 8, 817 N.W.2d 395, 398). Indeed, the Rule 56 standard contemplates this 

by instructing a court to examine “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits,” for the 

existence of disputed issues of material fact.

[¶35.] We have previously applied the familiar and accepted Rule 56 

standard and upheld a circuit court’s decision to grant the DOT’s motion for 

summary judgment in another access-to-property case. In Schliem, we affirmed the 

circuit court’s decision to grant summary judgment to the DOT even amid the 

landowner’s argument contesting the reasonableness of access restrictions. 

Schliem, 2016 S.D. 90, ¶¶ 9–10, 888 N.W.2d at 222. We observed that “[a]lthough 
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the foregoing certainly establishes a dispute between the parties, it does not 

establish a genuine issue of material fact.” Id. ¶ 10.

[¶36.] Here, Legacy makes what it characterizes as a specific disputed fact 

argument, in addition to its “absence of undisputed fact” claims. It points to its 

expert’s opinion that the Catron Boulevard median did not allow for “reasonable 

access” to Legacy’s property. But this is a disputed legal opinion, not a disputed 

fact, and does not preclude summary judgment. See Seff v. Broward Cnty., Fla., 691 

F.3d 1221, 1224 (11th Cir. 2012) (holding a “legal opinion alone would not create a 

factual dispute precluding summary judgment”). While we must view the evidence 

in favor of the nonmoving party, we need not treat the opinions of reasonableness 

offered by experts the same way because reasonableness is a legal conclusion to be 

made by the court. Accord LP6 Claimants, LLC v. S.D. Dep’t of Tourism & State 

Dev., 2020 S.D. 38, ¶ 12, 945 N.W.2d 911, 915 (“[W]hile the court must accept 

allegations of fact as true when considering a motion to dismiss, the court is free to 

ignore . . . sweeping legal conclusions cast in the form of factual allegations.” 

(alteration in original) (citation omitted)).

[¶37.] Based upon the undisputed facts contained in the record, Legacy has 

failed, as the non-moving party in this summary judgment proceeding, to 

demonstrate the existence of disputed material facts relating to the circuit court’s 

substantial impairment determination.6

6. Though we adopt no categorical rule in this case, we do note that other 

jurisdictions considering the question have concluded that the installation of 

medians is generally viewed as a noncompensable exercise of police power. 

See 2A NICHOLS ON EMINENT DOMAIN § 6.02[8][b] (2022) (citing to 28 

(continued . . .)
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[¶38.] Finally, even if we were to determine that the median substantially 

impaired Legacy’s access to its property, that would not end the analysis under the 

circumstances of this case. As was explained in Miller:

If the change in access amounts to substantial impairment and 

is caused by the physical taking of a landowner’s property, the 

landowner is entitled to compensation for the substantial 

impairment of access as an element of severance damages. If 

the change in access amounts to substantial impairment and is 

not caused by the State’s actual taking of the landowner’s 

property, then the landowner must demonstrate that he or she 

meets the requirements of an inverse-condemnation claimant: the 

landowner must also prove that the injury is peculiar to the 

landowner’s property and not of a kind suffered by the public as 

a whole.

2016 S.D. 88, ¶ 45, 889 N.W.2d at 156 (emphasis added).

[¶39.] Here, Legacy has not demonstrated the existence of disputed material 

facts on the question of whether the injury is peculiar to it and distinct from the 

kind suffered by the public as a whole. Based upon the current record, it appears 

all drivers and landowners along this particular portion of Catron Boulevard must 

deal with the median. The kind of injury does not seem particular to Legacy. 

________________________

(. . . continued)

jurisdictions when stating, “The placement of a median, median strip, or 

medial area is a proper exercise of the police power and does not constitute a 

compensable taking under the power of eminent domain.”); see also State v. 

Dunn, 888 N.E.2d 858, 869 (Ind. Ct. App. 2008) (“[T]he construction of a 

median in a roadway that causes traffic traveling to and from an abutting 

property to travel a circuitous route does not constitute a compensable taking 

under Indiana eminent domain law.”); Hales v. City of Kansas City, 804 P.2d 

347, 350 (Kan. 1991) (“We conclude that limiting the landowners’ ingress and 

egress to lanes for southbound travel when they formerly had direct access to 

both the northbound and southbound lanes of traffic, whether by a median 

strip, one-way street, or no left turn, is a valid exercise of police power and is 

not compensable.”); Dale Props., LLC v. State, 638 N.W.2d 763, 767 (Minn. 

2002) (holding that the closure of a median crossover thereby limiting traffic 

access to the property to one direction was not compensable).
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Rather it is “different . . . merely in degree from that experienced by the general 

public.” Schliem, 2016 S.D. 90, ¶ 19, 888 N.W.2d at 229 (ellipse in original).7

Conclusion

[¶40.] The construction of the median for Catron Boulevard undoubtedly 

affected the ease with which vehicles traveling east can access Legacy’s property. 

However, the undisputed material facts do not support Legacy’s claim that the 

median substantially impaired its right of access.

[¶41.] We affirm.

[¶42.] JENSEN, Chief Justice, and DEVANEY and MYREN, Justices, concur.

[¶43.] KERN, Justice, dissents.

KERN, Justice (dissenting).

[¶44.] I respectfully dissent from the majority’s view that the summary 

judgment order should be affirmed. This eminent domain case should be remanded 

for further evidentiary proceedings because there are disputed issues of material 

fact regarding whether the Department of Transportation’s (DOT) median on 

Highway 16B substantially impaired Legacy Land Company’s (Legacy) access to its 

7. In a separate argument, Legacy claims that the DOT acted unreasonably by 

deviating from the access management guidelines and locating the median 

break to the east of the Legacy property to accommodate access to the weigh 

station, the Highway Patrol, and the National Guard. However, the DOT’s 

administrative rules allow for deviation from its general guidance of median 

breaks at half-mile intervals. See ARSD 70:09:02:01 (stating that “[a]n 

engineering study of sight distance, corner clearance, operational efficiency, 

safety and adjacent land use may also be conducted by department personnel 

prior to granting access and may alter the criteria shown in the table”). 

Legacy is not seeking relief in the form of relocation of the median, and in 

any case, Legacy has not shown how noncompliance with the regulation 

entitles them to compensation through a takings claim.
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property. At this juncture, Legacy has also sufficiently demonstrated injury 

separate and distinct from that of the general public because other nearby 

properties are not similarly affected by the median. After hearing testimony from 

both sides, the circuit court will be in a better position to rule on the highly factintensive questions present here. Disposing of these issues on the basis of affidavits 

and depositions results in a rush to judgment from an incomplete record with 

several unresolved questions of fact.

[¶45.] “Private property shall not be taken for public use, or damaged,

without just compensation.” S.D. CONST. art. VI, § 13. Through this provision, the 

South Dakota Constitution “provides greater protection for its citizens than the 

United States Constitution because 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.” State ex rel. Dep’t of Transp. v. Miller, 2016 

S.D. 88, ¶ 39, 889 N.W.2d 141, 153 (internal quotation marks omitted). We have 

held that, where a court determines as a matter of law that the State has 

substantially impaired access to a certain property, the plaintiff is “permitted to 

present evidence of the impaired access as it relates to the fair market value of their 

property after the taking.” Id. ¶ 43, 889 N.W.2d at 155. The question here, 

however, is narrower: Whether the DOT was entitled to summary judgment that 

the median on US Highway 16B did not substantially impair access to Legacy’s 

property.

[¶46.] According to our holding in Miller, courts should weigh substantial 

impairment based on “the nature of the property involved, the character of the 
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access before and after governmental activity, and the location (rural or urban).” 

Id. ¶ 44, 889 N.W.2d at 156. In short, courts are required to “consider the unique 

fact pattern in each case.” Id. Importantly, the majority declines to adopt any 

categorical rule regarding medians, affirming Miller’s seminal holding that a 

change in access can constitute a taking if there is substantial impairment and 

peculiar injury to the plaintiff. See id. ¶ 45, 889 N.W.2d at 156.

[¶47.] Turning to the specifics of this case, there are several unresolved 

issues of material fact concerning reasonability of access, particularly for 

commercial traffic, after construction of the median. In addition, both parties 

heavily dispute how and to what extent Legacy’s future plans for the property are 

impacted by the reduced access, a central component of the impairment analysis. 

Summary judgment “should not be granted unless the moving party has established 

the right to a judgment with such clarity as to leave no room for controversy.” 

Hanson v. Big Stone Therapies, Inc., 2018 S.D. 60, ¶ 38, 916 N.W.2d 151, 161. 

Although a nonmoving party “must present specific facts showing that a genuine, 

material issue for trial exists,” Sacred Heart Health Servs., Inc. v. Yankton Cnty., 

2020 S.D. 64, ¶ 11, 951 N.W.2d 544, 548, courts should “view the evidence most 

favorably to the nonmoving party and resolve reasonable doubts against the moving 

party.” Yankton Cnty. v. McAllister, 2022 S.D. 37, ¶ 15, 977 N.W.2d 327, 334. The 

contested facts present here should have been construed in favor of Legacy and 

summary judgment denied.

[¶48.] The circuit court suggested that eastbound vehicles seeking to enter 

Legacy’s property should make a U-turn at a median break on Highway 16B with 
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no stoplight. Vehicles unable to complete this maneuver, according to the court, 

should turn into a weigh station area, follow a “loop” to turn around, cross 60 mph 

oncoming traffic, pass through a median break while turning left, and then prepare 

to promptly enter the property from the right lane.8 The court also speculated that 

Stumer Road “could provide[] potential future access to commercial development 

on” Legacy’s property. As one further alternative, the majority identifies an 

alternate route, initially proposed by Legacy’s expert, where eastbound large 

vehicles would travel 1.3 miles, partially through residential areas, to access the 

property entrance heading west. The majority suggests a similar route for large 

vehicles wishing to depart to the east.

[¶49.] Legacy’s complaint is not mere circuity of access. Rather, Legacy 

argues that the alternate routes identified by the circuit court are not reasonable for 

the intended commercial use of the property. Although extensive circuity can be a 

sufficient condition for a finding of substantial impairment, other factors are 

relevant as well, including “the nature of the property involved . . . and the location 

(rural or urban).” Miller, 2016 S.D. 88, ¶ 44, 889 N.W.2d at 156.

[¶50.] At this stage, a proper evaluation of the alternative entrance routes 

referenced above is virtually impossible due to factual disputes and uncertainties in 

the record. Even if eastbound small passenger vehicles are able to negotiate a U8. The majority suggests “there is no argument that access from the west and 

exit to the east is substantially impaired for any other class of vehicles, 

besides the largest types of trucks and semi tractor-trailers.” Ante ¶ 23. 

However, at this stage, it is an open question whether requiring drivers to 

make the dangerous U-turn constitutes reasonable access, regardless of the 

size of the vehicle.
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turn into 60 mph oncoming traffic without a stoplight, both parties acknowledge 

that this is not possible for many larger vehicles. The viability of the alternate 

route through the weigh station is also not sufficiently supported by the record. It 

is unclear whether a large commercial vehicle, such as a semi, would be able to turn 

left through the median break after coming out of the weigh station and then 

almost immediately turn into the property from the right lane. This route was not 

proposed by the DOT below and there is insufficient testimony as to its feasibility.

[¶51.] Furthermore, the suggested route down Stumer Road is purely 

hypothetical. Substantial impairment should not be judged based on future access 

points that may or may not come to fruition. Rather, courts should evaluate 

impairment as of the time of the taking. Here, at the time the median was 

constructed, Stumer Road did not provide access to Legacy’s property. There is also 

no evidence that such development of Stumer Road was or is certainly impending.9 

Thus, this speculative access point should not be used to support a finding of no 

substantial impairment.

[¶52.] Factual assertions from Legacy’s experts also call into question the 

reasonability of the proposed routes. Although the majority is correct that expert 

opinions as to ultimate legal conclusions do not preclude summary judgement, it is 

equally true that “the court must accept allegations of fact [from the nonmoving 

party] as true when considering a motion to dismiss.” LP6 Claimants, LLC v. S.D. 

9. According to Scott Nash, the President of Legacy, the development of a 

frontage road such as Stumer hinges on an owner whose property 

“sandwich[es]” the Legacy property. Apparently, the owner “has not 

developed his properties to this day.”
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Dep’t of Tourism & State Dev., 2020 S.D. 38, ¶ 12, 945 N.W.2d 911, 915. Legacy’s 

experts assert that, in order to access the property from the west:

a heavy vehicle would be required to travel to E. Minnesota St. 

to circulate off of Elk Vale Rd. and back to the site 

approximately 1.3 miles to the east. Similarly, for vehicles 

leaving the property to head east, which represents a large 

percentage of site traffic due to traffic being oriented to the SD79, a U-turn is not possible at the median break to the west and 

must be accomplished by circulating through the grid of streets 

accessed from 5th St.

The experts go on to note that:

With these restrictions in place, the most convenient route 

would be through the connections and neighborhoods to the 

north . . . This is both undesirable to residents who live in the 

neighborhoods and would result in more traffic than the twolane roadways would be able to manage. Additionally, heavy 

vehicle traffic is restricted along these roadways and these 

heavy vehicles would still have a lack of convenient access.

[¶53.] Taking these statements of fact as true, it is unclear whether routing 

heavy commercial traffic on the majority’s proposed 1.3-mile detour through 

residential areas is even possible. While it is true that “it is not necessary for a 

court to identify the specific route,” Ante ¶ 26, it is telling that the circuit court and 

majority struggle to present any route that is not undermined by factual 

ambiguities and disputes in the record. The majority attempts to sidestep this issue 

by pointing out that the median does not prevent traffic from exiting to the west or 

entering from the east. But this ignores Legacy’s factual assertion that “vehicles 

leaving the property to head east . . . represents a large percentage of site traffic 

[due] to traffic being oriented to [] SD-79.” This eastbound exiting traffic, in 

addition to vehicles entering from the west, would have to follow the previously 

described routes to exit or access the Legacy property.
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[¶54.] The majority is correct that we “gauge[] substantial impairment to 

access generally.” Ante ¶ 26. However, the facts proffered by Legacy, at the very 

least, call into question whether departing commercial traffic can reach SD-79 

through any of the routes proposed by the majority here or the circuit court below. 

Without such access, which “represents a large portion of site traffic,” commercial 

development becomes substantially more difficult, if not impossible. Legacy would 

thus be deprived of the “highest, best and most profitable” uses of the property. 

Because the median fundamentally alters Legacy’s access to Highway 16B and its 

ability to develop the property to its fullest potential, it is inappropriate to conclude 

at this stage that substantial impairment could not be demonstrated over the course 

of further proceedings.

[¶55.] The majority also errs by dismissing the possibility of eventual 

commercial use of the property. The mere fact that no development plan is 

currently on file with the City of Rapid City does not demonstrate that Legacy has 

no plans to commercially develop the property. Sewer and water infrastructure has 

already been installed to support future commercial development. Prior to the 

installation of the median, Legacy met with Walmart developers about a possible 

sale of the property. These discussions ended after the median reduced access. 

Legacy has also previously submitted commercial development plans to the City. 

According to Nash, “Legacy always intended to develop the property for commercial 

use.”

[¶56.] For purposes of summary judgment, we must accept these factual 

allegations as true. Legacy clearly envisioned commercial development of the 
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property and took affirmative steps in this direction. The effects of the median 

should be judged against this intended use. Contrary to the majority’s assertion, 

this is not a valuation argument since the inquiry focuses on how the State has 

affected the use of a property, irrespective of any valuation changes. This use 

analysis is directly related to the nature of the property, one of our impairment 

factors. According to the facts proffered by Legacy, the median renders regular 

commercial traffic to the property likely impossible. Since Legacy, on this record, is 

unable to put the property to regular commercial use because of the median, it is 

difficult to imagine what more would be needed for substantial impairment.

[¶57.] Finally, the majority hedges, claiming that, even if there is substantial 

impairment this “kind of injury does not seem particular to Legacy.” Ante ¶ 39. It 

is not true that “all drivers and landowners along this particular portion of Catron 

Boulevard must deal with the median.” Ante ¶ 39. Other nearby properties are 

located next to median breaks that allow traffic to enter and exit in both directions. 

Legacy is also uniquely affected because of its intended commercial use of the 

property. Although drivers of eastbound small cars may be able to reach the 

property through a U-turn, the record, viewed most favorably to Legacy, 

demonstrates that regular access by large vehicles is likely not possible. Legacy 

thus experiences a unique injury to its property.

[¶58.] In conclusion, this case was not ripe for summary judgment given the 

existence of material issues of fact regarding the impairment analysis. For the 

foregoing reasons, I respectfully dissent.