#28352-a-JMK
2018 S.D. 85


                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****
JIMMY KRSNAK and
LINDA L. KRSNAK,                             Plaintiffs and Appellants,

      v.

BRANT LAKE SANITARY
DISTRICT,                                    Defendant and Appellee.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                      LAKE COUNTY, SOUTH DAKOTA

                                    ****

                    THE HONORABLE VINCENT A. FOLEY
                             Retired Judge

                                    ****


R. SHAWN TORNOW
Sioux Falls, South Dakota                    Attorney for plaintiffs
                                             and appellants.


JOEL R. RISCHE
VINCE M. ROCHE of
Davenport, Evans, Hurwitz
 & Smith, LLP
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellee.

                                    ****
                                             ARGUED OCTOBER 1, 2018
                                             OPINION FILED 12/19/18
#28352

KERN, Justice

[¶1.]        The Brant Lake Sanitary District (the District) built an additional

sewage lagoon to process wastewater from the Brant Lake area. The Krsnaks, who

live a short distance from the new pond, brought an action against the District

alleging a taking or damaging of their property and nuisance. The circuit court

granted the District’s motion for summary judgment on all claims. The Krsnaks

appeal. We affirm.

                         Facts and Procedural History

[¶2.]        The District designed and constructed a treatment pond to service the

increase in wastewater flow in the Brant Lake area. This new pond, referred to as

the Brant Lake Sanitary District pond (BLSD pond), connected into two previously

existing treatment ponds operated by the Chester Sanitary District.

[¶3.]        Jimmy and Linda Krsnak own 8.27 acres of property approximately

675 feet north of the new water treatment pond and 1,100 feet from the existing

ponds. Linda has operated a vegetable farm called “Linda’s Gardens” from the

property since 2005. The Krsnaks also have a sixty-foot well on their land, which

they use to water crops for the business. They opposed construction of the BLSD

pond and brought several lawsuits hoping to stop the project.

[¶4.]        In 2011, the Krsnaks appealed to the circuit court the Lake County

Board of Adjustment’s decision to grant the District a conditional use permit to

build the pond. In a memorandum decision dated June 28, 2011, the circuit court

dismissed their action for failing to meet the statutory requirements for contesting

such a decision. See SDCL 11-2-61 to -65. Next, the Krsnaks filed a petition for a

writ of mandamus to compel the South Dakota Department of Environmental and
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Natural Resources (DENR) to stay construction of the pond. In that action, the

Krsnaks argued DENR did not comply with existing legal requirements when it

approved the BLSD pond. Specifically, they asserted that DENR violated

SDCL 34A-2-27 to -29, administrative rules (ARSD 74:53:01), and its own internal

guidelines set forth in the Recommended Design Criteria Manual for Wastewater

Collection and Treatment Facilities. The circuit court denied the petition for writ of

mandamus and, on appeal, we affirmed. See Krsnak v. S.D. Dep’t of Env’t & Nat.

Res., 2012 S.D. 89, ¶ 23, 824 N.W.2d 429, 438.

[¶5.]        In May 2012, around the same time the Krsnaks petitioned for writ of

mandamus, they also filed the present action. They alleged in their complaint that

the District’s new pond violated: (1) SDCL 21-10-1, the general nuisance statute;

(2) SDCL 34A-2-21’s prohibition against pollution of state waters; and (3) a Lake

County ordinance. On July 2, 2012, the District moved to dismiss, arguing the

nuisance violations were premature because the pond was not yet constructed. In

the interim, the Krsnaks filed an amended complaint seeking a declaratory

judgment and bringing an additional claim of inverse condemnation along with

their nuisance claim. In the Krsnak’s view, because they filed an amended

complaint after the District moved to dismiss, the District’s motion was moot

because it targeted their original complaint rather than the amended version.

[¶6.]        On December 31, 2012, the circuit court denied the District’s July 2012

motion to dismiss, suggesting the denial was an “invitation for further evidence”




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from the Krsnaks regarding their water seepage claims. 1 The District filed an

answer in January 2013, denying the allegations set forth in the Krsnaks’ amended

complaint and asserting the affirmative defenses of res judicata and collateral

estoppel. It also argued the Krsnaks’ case should be dismissed under the doctrine of

stare decisis.

[¶7.]            Sometime in late 2012 or early 2013, the BLSD pond went into

operation. Soon after, the Krsnaks and their neighbors began reporting stronger

odors emanating from the pond than from the existing Chester system. In April

2014, the District deposed Linda and Jimmy Krsnak. During his deposition, Jimmy

Krsnak stated the odor “has actually made us physically ill. We’ve had odor so bad

that we just had to leave the place.”

[¶8.]            After the depositions, however, the litigation stagnated for more than

two years. The District sent the Krsnaks a letter asking for supplemental discovery

responses on April 9, 2014. Even though the parties exchanged several emails

between June 2014 and January 2015, the Krsnaks did not produce the discovery.

The District moved to dismiss for failure to prosecute on May 29, 2015. The circuit

court denied the motion.

[¶9.]            Meanwhile, in early 2015, the Krsnaks retained an expert to appraise

the value of their property before and after construction of the BLSD pond. The

appraiser concluded that their property suffered a diminution in value of $82,800.00

because of the new sewage pond. The appraiser noted the pond’s proximity to the



1.      The court issued a lengthy memorandum opinion which is not included in the
        record.

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Krsnaks’ house, the odor, and its size. According to the report, these factors

diminished the property’s value and negatively impacted its marketability.

[¶10.]       On June 6, 2016, the District moved for summary judgment regarding

the Krsnaks’ inverse condemnation claim, arguing no evidence existed that the

BLSD pond contaminated their property or injured them in a peculiar or distinctive

way compared to the public at large. The District also moved for summary

judgment on the nuisance claim, alleging that the pond could not be classified as a

nuisance because the District acted within its statutory authority when it

constructed the pond. Finally, the District requested summary judgment on the

Krsnaks’ declaratory judgment claim because it presented no distinct issues of

substantive law.

[¶11.]       In response, the Krsnaks argued that genuine issues of material fact

existed regarding the unique injury the Krsnaks suffered by enduring the bigger

and more odorous BLSD pond. According to Linda Krsnak’s deposition, “[n]o other

owner [was] as close . . . .” to the new pond. Additionally, the Krsnaks argued they

offered “uncontroverted factual testimony” that Linda’s Gardens “suffered a unique

and peculiar injury not of a kind suffered by the general public in and around

Chester.” According to the Krsnaks, their injury was unique because no other

person in the area operated a commercial gardening business that close to the new

pond. They also alleged that fecal matter from the pond was contaminating their

well.

[¶12.]       In a short letter opinion granting the District’s motion for summary

judgment, the court explained that while it had denied the District’s previous


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motion to allow for further discovery, the Krsnaks, in the years that followed, had

failed to produce evidence of “water seepage impacts” to their property. Further,

the court disregarded as speculative the Krsnaks’ argument that their proximity to

the pond made their business ineligible for GAP certification, 2 presumably because

the Krsnaks had never attempted to certify.

[¶13.]         Finally, the circuit court, citing Krier v. Dell Rapids Township,

concluded that even if the Krsnaks suffer a heightened injury due to the smell and

their proximity to the pond, their injury was neither unique nor constituted a

nuisance. See 2006 S.D. 10, ¶ 28, 709 N.W.2d 841, 847–48 (holding a plaintiff in an

inverse condemnation action must establish an injury to property “different in kind

and not merely in degree from that experienced by the general public.”). The

Krsnaks appeal, raising two issues that we consolidate as follows:

               Whether the circuit court erred by granting the District’s motion for
               summary judgment on the Krsnaks’ inverse condemnation and
               nuisance claims.

                            Analysis and Decision

[¶14.]         Our summary judgment standard is well-established. Summary

judgment is authorized “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” SDCL 15-6-56(c). All reasonable inferences derived

from the facts are viewed in the light most favorable to the nonmoving party.

2.       “GAP” stands for Good Agricultural Practices. The United States
         Department of Agriculture audits agricultural producers to determine
         whether they qualify for GAP certification based on food safety practices.

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Northstream Invs. v. 1804 Country Store Co., 2005 S.D. 61, ¶ 11, 697 N.W.2d 762,

765.

             The inverse condemnation claim

[¶15.]       “[I]n any takings case, the determination whether a property interest

was taken or damaged for public use is a question of law for the court.” Dep’t of

Transp. v. Miller, 2016 S.D. 88, ¶ 43, 889 N.W.2d 141, 154. If the court decides a

taking or damaging of property occurred, the parties may request that a jury

resolve their claim for just compensation and affix damages. See Rupert v. City of

Rapid City, 2013 S.D. 13, ¶ 6, 827 N.W.2d 55, 60. On appeal, an alleged violation of

constitutional rights—such as whether a sufficient inverse condemnation claim

exists—“is an issue of law to be reviewed under the de novo standard.” Id. ¶ 8,

827 N.W.2d at 66.

[¶16.]       The Krsnaks begin by challenging the circuit court’s summary

judgment order dismissing their inverse condemnation claim. In the realm of

eminent domain, the Constitution of the United States commands that private

property shall not “be taken for public use, without just compensation.” U.S. Const.

amend. V. Takings jurisprudence at the federal level involves, at a minimum, two

distinct categories of deprivations: (1) physical occupations of land; or (2) regulatory

takings. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015, 112

S. Ct. 2886, 2893, 120 L. Ed. 2d 798 (1992).

[¶17.]       The South Dakota Constitution enlarges these protections, instructing

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

compensation . . . .” See S.D. Const. art. VI, § 13 (emphasis added); Krier, 2006 S.D.


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#28352

10, ¶ 21, 709 N.W.2d at 846. The primary purpose of the “‘[damages] clause is to

ensure that individuals are not unfairly burdened by disproportionately bearing the

cost of projects intended to benefit the public generally.’” Rupert, 2013 S.D. 13, ¶ 9,

827 N.W.2d at 61 (quoting Hall v. S.D. Dep’t of Transp., 2011 S.D. 70, ¶ 37,

806 N.W.2d 221, 230).

[¶18.]         The Krsnaks argue the circuit court erred because questions of fact

exist regarding their inverse condemnation claim, which precludes summary

judgment at this stage. Specifically, the Krsnaks contend there are factual disputes

regarding: (1) their unique injury with respect to the smell; (2) the peculiar injury

inflicted on their business, ‘Linda’s Gardens’; and (3) the high levels of coliform

found in their well.

[¶19.]         With reference to their first argument regarding the odor, the Krsnaks

claim their proximity to the BLSD pond—675 feet—renders their injury sufficiently

unique to mandate just compensation. As support for this contention, they rely

upon Hurley v. State, in which we considered whether a state-created barrier

impairing the plaintiffs’ access to a road adjoining a property constituted a taking.

82 S.D. 156, 159, 143 N.W.2d 722, 723 (1966). In Hurley, we noted that, under

certain circumstances, “‘a landowner may claim compensation for the destruction or

disturbance of easements of light and air, and of accessibility, or of such other

intangible rights . . . .’” Id. at 161, 143 N.W.2d at 725 (quoting 2 Nichols on

Eminent Domain § 6.44). 3



3.       The Krsnaks also analogize sewage smell to the intrusion of airspace by
         airplanes. See Lawrence Cty. v. Miller, 2010 S.D. 60, ¶¶ 31–32, 786 N.W.2d
                                                             (continued . . .)
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#28352

[¶20.]       In response, the District relies upon our decision in Krier. In Krier, we

reviewed a landowner’s claim for just compensation for injury suffered from dust

drifting onto his property from a newly graveled road. 2006 S.D. 10, ¶¶ 27–28,

709 N.W.2d at 847–48. When arguing that his injury was unique from that of his

neighbors, Krier argued that his residence was the only house that existed prior to

the gravel road. Thus, he claimed, he alone suffered a decrease in property value.

Id. ¶ 28, 709 N.W.2d at 848. We disagreed, holding Krier shared his injury—

namely, the dust from the road—with his neighbors. The simple fact that he

suffered the injury to a greater degree was not enough to establish a taking or

damaging claim. See id. ¶ 26, 709 N.W.2d at 848–49 (citing State Highway Comm’n

v. Bloom, 77 S.D. 452, 461, 93 N.W.2d 572, 577 (1958); Hurley, 82 S.D. at 162, 143

N.W.2d at 726).

[¶21.]       In the District’s view, our holding in Krier is directly on point and

controlling—the only variation being that this case involves odor rather than dust.

The District also emphasizes that the smell from the existing Chester treatment

ponds invaded the air in the area surrounding the Krsnaks’ property long before the


________________________
(. . . continued)
         360, 371–72 (affirming summary judgment against a landowner who failed to
         establish an invasion of an airspace easement over the property.) The
         District argues the Krsnaks’ analogy between odor and airplane intrusions is
         unpersuasive because, unlike odor emanating from a pond, airplane
         intrusions involve actual physical occupation of airspace. See id. We agree
         that Lawrence County is unpersuasive here. In that case, although we
         acknowledged that noise resulting from overhead airplane traffic might rise
         to the level of a taking or damaging, we noted that the plaintiffs had
         established neither “actual intrusion upon the . . . acreage” nor evidence that
         the airport would permit larger aircrafts from using the runway.” Id. ¶15,
         786 N.W.2d at 367.

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BLSD pond was constructed. Therefore, the District contends it is immaterial

whether the BLSD pond increases the repulsive odor in the air.

[¶22.]        As set forth in Hurley, the deprivation of certain property interests,

such as road access, might rise to the level of a taking or damaging of property for

public use. 82 S.D. at 160, 143 N.W.2d at 724. However, in Hurley we explained

that “‘[t]he damage to [the landowner] must be different in kind and not merely in

degree from that experienced by the general public.’” Id. at 163, 143 N.W.2d. at 726

(quoting Hendrickson v. State, 127 N.W.2d 165, 170 (Minn. 1964)) (emphasis

added). The plaintiffs’ injury in Hurley was unique because the barrier obstructed

the owner’s access to a major street, and the owners intended to market the

property for use as an automobile service station. Id. at 159, 143 N.W.2d at 724. As

a consequence, we concluded the owner’s rights, as an abutting landowner, were

“peculiar, distinct, and separate . . . from . . . the general public . . . .” Id.

[¶23.]        Hurley’s requirement that an injury be unique is consistent with our

decision in Krier. The mere fact that the Krsnaks’ house is closer to the BLSD pond

than any other landowner’s does not necessarily create a unique injury. See Krier,

2006 S.D. 10, ¶ 28, 709 N.W.2d at 848 (“The fact that a plaintiff suffers a higher

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

damages rule.”). Many landowners surrounding the treatment pond wrote letters

opposing the pond’s construction and complained of the odor emanating from the

ponds. While we acknowledge that in this case, the Krsnaks suffer a heightened

injury due to the location of their house, under the facts contained in this record,

this circumstance alone does not render their injury unique or peculiar.


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[¶24.]         Additionally, the Krsnaks contend that their injury is peculiar because

the pond has adversely impacted their economic interest in Linda’s Gardens. They

maintain that they are unable to become GAP certified because of the pond’s

location next to their gardening operation. However, even if the pond’s proximity

renders the Krsnaks ineligible for GAP certification, the District argues this does

not change the character of the injury, only the economic consequences arriving

therefrom. See id. (explaining that arguments focusing solely on diminished

property value confuses the type of injury with the amount of damages).

[¶25.]         In this instance, we agree. Similar to the odors suffered by the

community-at-large, a decrease in the economic value of the Krsnaks’ property as

compared to other properties does not, in and of itself, rise to the level of a taking or

damaging. Further, the Krsnaks neither attempted to become GAP certified nor

provided evidence that their proximity to the sewage pond precluded them from

obtaining certification. 4 Therefore, we need not address whether the GAP

certification is sufficiently peculiar due to the speculative nature of their claim.

[¶26.]         The final question of material fact alleged by the Krsnaks is whether

the District took a portion of the Krsnaks’ property—specifically, their well water—

without just compensation by contaminating it with fecal matter. The Krsnaks rely

on Parsons v. City of Sioux Falls, which held that an actual physical occupation and

intrusion occurred when a city discharged sewage upstream of the plaintiff’s

riparian property. 272 N.W. 288, 291 (S.D. 1937); see also Gellert v. City of


4.       When asked why they never attempted certification, the Krsnaks stated the
         process was too expensive, and they did not believe they could comply with
         the requirements.

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Madison, 210 N.W.2d 978, 978 (1926); Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 434–35, 102 S. Ct. 3164, 3175–76, 73 L. Ed. 2d 868 (1982)

(holding neither “the extent of the occupation” nor its “minimal economic impact” is

relevant—any permanent physical governmental occupation constitutes a taking).

[¶27.]        The Krsnaks assert they have presented a genuine issue of material

fact regarding the source of dangerously high rates of coliform in their 60-foot well,

as evidenced by laboratory testing of the water between 2013 and 2015. They focus

on evidence establishing that in August 2014, the total coliform level of the well

water was 225 times the caution level, which far exceeds the Environmental

Protection Agency’s limit. The toxic coliform levels, the Krsnaks argue, originate

from the BLSD pond.

[¶28.]        In contrast, the District’s statement of undisputed material facts

alleged that “there is no evidence that sewage is seeping from the BLSD [l]agoon

onto [the property] or into the Krsnaks’ well.” The District relies on Jimmy and

Linda Krsnaks’ deposition testimony, in which they each conceded they had no proof

that the BLSD sewage was seeping into their well. The District also points to Linda

Krsnak’s statement that she never saw sewage flowing from the BLSD pond onto

their land.

[¶29.]        Based on our review of the record, the Krsnaks have only shown that

unsafe levels of coliform exist within their well. The reports created by Midwest

Laboratories, Inc., summarized the water quality following the BLSD pond’s

construction but failed to present any relationship between the pond and the well’s

coliform content. Those documents, which analyze the water from 2013 to 2015,


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demonstrate the ebb and flow of the well’s coliform levels after the pond’s

construction. No evidence within this record establishes the source of the coliform

or whether the well contained coliform before construction of the BLSD pond.

Additionally, the Krsnaks’ appraisal evaluated only the economic impact the pond

had on their property, concluding its proximity and smell negatively impacted the

land’s marketability and value. The appraisal did not address the coliform in the

well or the possible cause of the contamination. Thus, the Krsnaks have not

presented evidence of causation.

[¶30.]       Considering the foregoing facts and arguments, the Krsnaks have

failed to present a claim of inverse condemnation. See Bordeaux v. Shannon Cty.

Sch., 2005 S.D. 117, ¶ 14, 707 N.W.2d 123, 127 (noting that a party resisting

summary judgment must present facts rather than “[u]nsupported conclusions and

speculative statements . . . [that] do not raise a genuine issue of fact.”) Although

they have established that fecal matter contaminates their well water, they have

not shown a governmental entity caused the invasion. Their suspicion that the

coliform in their well originated from the BLSD pond, without evidence of the

source of the contamination, merely raises unsupported conclusions and

speculation. See Long v. State, 2017 S.D. 79, ¶ 23, 904 N.W.2d 502, 511 (“[T]he duty

to show both actual and proximate causation is implicit in inverse condemnation.”)

The circuit court did not err in dismissing the Krsnaks’ claim for inverse

condemnation.




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               The nuisance claim

[¶31.]         Next, the Krsnaks argue the circuit court erred by granting the

District’s motion for summary judgment on their nuisance claim. The Krsnaks

contend that the depositions, affidavits, and exhibits in the record demonstrate that

the BLSD pond creates an “unlawful nuisance” by contaminating their air,

impeding their business venture, and secreting sewage into their well. The District

contradicts their assertions, stating that “the Krsnaks [did] not identify a single

applicable statute or regulation they claim the District violated and thereby created

a nuisance.”

[¶32.]         Sanitary districts are specifically authorized by statute. See

SDCL 34A-5-26(4). “Nothing which is done or maintained under the express

authority of a statute can be deemed a nuisance.” SDCL 21-10-2; see Kuper v.

Lincoln-Union Elec. Co., 1996 S.D. 145, ¶ 47, 557 N.W.2d 748 761 (“[O]ur

legislature has . . . made it quite clear that a public utility cannot be designated a

nuisance.”). Accordingly, to overcome the District’s motion for summary judgment,

the Krsnaks must present evidence that the District engaged in some act or

omission that violated its statutory authority. See Kuper, 1996 S.D. 145, ¶ 47, 557

N.W.2d at 761. Pursuant to SDCL 21-10-1, for an actionable claim, the District

must be unlawfully engaged in “an act, or omitting to perform a duty, which act or

omission either . . . [a]nnoys, injures, or endangers the comfort, repose, health, or

safety of others[,]” or “renders other persons insecure . . . in the use of property.”

[¶33.]         Like their inverse condemnation claim, because the Krsnaks did not

present evidence that the BLSD pond is unlawfully contaminating their well, their


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claim must fail. See SDCL 34A-5-26(4) (authorizing sanitary districts to maintain

and operate sewage disposal plants); SDCL 21-10-2. In light of the fact that the

legislature authorized sewage districts for public benefit, upon review of the

evidence presented in this case, the Krsnaks have failed to establish a cause of

action based upon nuisance. Thus, the circuit court did not err in granting the

District’s motion for summary judgment.

[¶34.]       We affirm.

[¶35.]       GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices,

concur.




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