#25933-r-GAS

2011 S.D. 54

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                      * * * *

ALTO TOWNSHIP                                   Plaintiff and Appellee,

v.

KEITH MENDENHALL and
LISA MENDENHALL,                                Defendants and Appellants.

                                      * * * *

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIFTH JUDICIAL CIRCUIT
                    ROBERTS COUNTY, SOUTH DAKOTA

                                      * * * *

                         HONORABLE JON S. FLEMMER
                                  Judge

                                      * * * *
KAY F. NIKOLAS,
Sisseton, South Dakota                          Attorney for plaintiff
                                                and appellee.

GORDON P. NIELSEN
Delaney, Vander Linden,
   Delaney, Nielsen, & Sannes, P.C.
Sisseton, South Dakota                          Attorneys for defendants
                                                and appellants.


                                      * * * *

                                                CONSIDERED ON BRIEFS
                                                ON AUGUST 23, 2011

                                                OPINION FILED 09/07/11
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SEVERSON, Justice

[¶1.]         On August 20, 2010, the trial court issued an order requiring Keith

and Lisa Mendenhall (the Mendenhalls) to comply with the provisions of a county

resolution before erecting and maintaining a fence or gate across a section-line

highway stretching between two sections of the Mendenhalls’ property. After the

Mendenhalls installed a fence and gate across the section-line highway, Alto

Township brought a motion for contempt citation, alleging that the Mendenhalls

failed to comply with the trial court’s order. The trial court found the Mendenhalls

in contempt of court. We reverse.

                                    Background

[¶2.]         Keith and Lisa Mendenhall are ranchers who own property in Sections

16 and 17 of Alto Township in Roberts County. A section-line highway separates

the two parcels of land. 1 The Mendenhalls’ barn and cattle watering facilities are

located in Section 17 but their cattle’s winter pasture is located in Section 16. The

Mendenhalls have historically fenced across the section-line highway during the

late fall and winter months in order to join the adjacent pastures. Gates were

installed at those points where the fence crossed the section-line highway.

[¶3.]         On October 9, 2009, Alto Township filed an action for declaratory and

injunctive relief against the Mendenhalls. It sought a declaration that the section-

line highway between Sections 16 and 17 of Alto Township was an improved



1.      SDCL 31-18-1 established a public highway along every section line in the
        state except where some portion has been “vacated or relocated by the lawful
        action of some authorized public officer, board, or tribunal.”


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highway as described in SDCL chapter 31-25. Alto Township further requested an

injunction requiring the Mendenhalls to remove the fences that extended across the

section-line highway. 2

[¶4.]         While the matter was pending, the Mendenhalls filed a petition with

the Roberts County Board of Commissioners pursuant to SDCL 31-25-1, seeking

permission to place fences across the section-line highway. 3 On December 8, 2009,

the Roberts County Board of Commissioners passed Resolution #09-41 (Resolution

09-41). The resolution authorized Keith Mendenhall and his successors to erect and



2.      Private citizens cannot lawfully obstruct improved section-line highways
        absent legal authority to do so. Douville v. Christensen, 2002 S.D. 33, ¶ 11,
        641 N.W.2d 651, 654 (citing Lawrence v. Ewert, 21 S.D. 580, 114 N.W. 709,
        710 (1908); K & E Land & Cattle, Inc. v. Mayer, 330 N.W.2d 529, 532 (S.D.
        1983)). See SDCL 31-25-1.1 (permitting the placement of fences on a section
        line that has not been “altered from its natural state in any way for the
        purpose of facilitating vehicular passage,” provided that gates are installed to
        permit suitable public access).

3.      Under certain circumstances, SDCL 31-25-1 gives the board of county
        commissioners the authority to authorize the erection of fences across
        section-line highways. SDCL 31-25-1 provides:

              The board of county commissioners of any county having
              within its boundaries, any county, township, or section-
              line highway not included in § 31-25-1.1 extending or
              running through or across grazing land, may, upon
              petition, signed by a majority of the adjacent landowners
              along the portion of such highway involved, and after a
              hearing is had, on notice mailed by the county auditor to
              all of said landowners, not less than ten days before such
              hearing, authorize such landowners to erect and maintain
              fences across such highway. However, the board of county
              commissioners shall require the erection of gates or
              grates, or both, in such fences at points designated by the
              board, so that the public may have access to the highway.



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maintain fences across the section-line highway, provided that he “installs and

maintains a sixteen foot cattle guard (auto grate) and that he installs and

maintains pipe gates of an additional thirty-foot width with reflectors mounted on

the pipes of the gates, so that the public will have reasonable vehicular and

agricultural equipment access to the roadway lying within the section line

highway.”

[¶5.]          On August 20, 2010, a trial was held on Alto Township’s action for

declaratory and injunctive relief. In a judgment and order entered August 30, 2010,

the trial court declared that the section line between Section 16 and 17 was an

improved section-line highway. The trial court further ordered that the

Mendenhalls were enjoined from erecting and maintaining fences or gates across

the section-line highway unless the fences and gates met the criteria of Resolution

09-41.

[¶6.]          Following entry of the trial court’s order, the Mendenhalls ordered two

sixteen foot cattle guards from Hilltop Fencing, a company that regularly

manufactures cattle guards. After the cattle guards were manufactured, the

Mendenhalls installed them across the section-line highway. The cattle guards

measured sixteen feet, four inches in total width with just over ten feet of width in

the area where traffic passes over. 4 The Mendenhalls also installed pipe gates of an




4.       SDCL 31-25-5 defines the minimum dimensional requirements of livestock
         guards extending across section-line highways. SDCL 31-25-5 provides:

               All livestock guards shall be at least ten feet wide on the ground.
               In addition, at one side of such livestock guard there shall be
                                                                     (continued . . .)
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additional thirty-foot width across the section-line highway. Warning signs and

reflectors were mounted on the pipes of the gates in accordance with Resolution 09-

41.

[¶7.]         Alto Township brought a motion for contempt citation against the

Mendenhalls on November 9, 2010, alleging that the Mendenhalls willfully and

contumaciously failed to comply with the trial court’s August 30, 2010 order. While

the matter was pending, the Roberts County Board of Commissioners considered

the issue of whether Mendenhalls complied with Resolution 09-41 at a regularly

scheduled meeting on January 18, 2011. By resolution duly passed on January 18,

2011, the Roberts County Board of Commissioners determined that the

Mendenhalls had complied with Resolution 09-41. The January 18, 2011 resolution

authorized the Mendenhalls to “maintain the existing cattle guards, gates, and

fences, as they are currently constructed” across the section-line highway.

[¶8.]         The trial court heard Alto Township’s motion for contempt citation on

January 24, 2011. The trial court entered its findings of fact and conclusions of law

and order on February 15, 2011. Despite the Roberts County Board of

Commissioner’s determination that the Mendenhalls complied with Resolution 09-

41, the trial court found that the Mendenhalls “willfully and contumaciously failed

and refused to comply with the trial court’s order by installing cattle guards that


________________________
(. . . continued)
               provided or constructed a gate, at least twenty feet wide to
               accommodate the passage of teams, and wider vehicles.

        The cattle guards the Mendenhalls installed on the section-line highway
        complied with the provisions of SDCL 31-25-5.

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did not comply with the width requirements of the resolution.” The trial court

determined that Resolution 09-41 required the Mendenhalls to install cattle guards

that were sixteen feet in width in the area where traffic passed over. Because the

cattle guards installed by the Mendenhalls had a width of only ten feet in the area

where traffic passed over, the trial court concluded that the Mendenhalls were in

contempt of its August 30, 2010 order. The trial court ordered that the

Mendenhalls could purge themselves of the contempt citation by removing the

cattle guards by June 1, 2011. If the Mendenhalls desired to maintain fences and

gates across the section-line highway, the cattle guards had to be “sixteen feet in

width as measured on the ground where vehicles will pass over them. . . .”

                                Standard of Review

[¶9.]        “‘We will not set aside a trial court’s findings of fact unless they are

clearly erroneous.’” Keller v. Keller, 2003 S.D. 36, ¶ 8, 660 N.W.2d 619, 622 (quoting

Harksen v. Peska, 2001 S.D. 75, ¶ 9, 630 N.W.2d 98, 101). However, “[w]e review

conclusions of law under a de novo standard, with no deference to the trial court’s

conclusions of law.” Harksen, 2001 S.D. 75, ¶ 9, 630 N.W.2d at 101 (citing Mid-

Century Ins. Co. v. Lyon, 1997 S.D. 50, ¶ 4, 562 N.W.2d 888, 890; Shedd v. Lamb,

1996 S.D. 117, ¶ 17, 553 N.W.2d 241, 244).

[¶10.]       “The appropriate remedy or punishment for contempt of court lies

within the sound discretion of the trial court.” Keller, 2003 S.D. 36, ¶ 8, 660 N.W.2d

at 622 (citing Harksen, 2001 S.D. 75, ¶ 10, 630 N.W.2d at 101). “An abuse of

discretion is ‘discretion exercised to an end or purpose not justified by and clearly




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against, reason and evidence.”’ State v. Big Crow, 2009 S.D. 87, ¶ 7, 773 N.W.2d

810, 812 (quoting State v. Machmuller, 2001 S.D. 82, ¶ 9, 630 N.W.2d 495, 498).

                                       Analysis

[¶11.]       Whether the trial court erred by finding the Mendenhalls
             in contempt of court.

[¶12.]       “The four elements of contempt are (1) existence of an order; (2)

knowledge of the order; (3) ability to comply with the order; and (4) willful or

contumacious disobedience of the order.” Muenster v. Muenster, 2009 S.D. 23, ¶ 35,

764 N.W.2d 712, 721 (citing Johnson v. Johnson, 451 N.W.2d 293, 295 (S.D. 1990)).

In this case, the Mendenhalls acknowledge the existence of the trial court’s order

dated August 30, 2010. The Mendenhalls further concede that they had knowledge

of the order and the ability to comply with it. They dispute only the forth element of

the test. The Mendenhalls argue that they did not willfully or contumaciously

disobey the trial court’s order because the terms of the order were ambiguous.

[¶13.]       We have said that ‘“[t]o form the basis for a subsequent finding of

contempt, an order must state the details of compliance in such clear, specific and

unambiguous terms that the person to whom it is directed will know exactly what

duties or obligations are imposed upon [him or her].”’ Keller, 2003 S.D. 36, ¶ 10,

660 N.W.2d at 622 (quoting Harksen, 2001 S.D. 75, ¶ 17, 630 N.W.2d at 102). Here,

the trial court’s order enjoined the Mendenhalls from erecting and maintaining

fences and gates across the section-line highway between Sections 16 and 17 of Alto

Township unless the fences and gates met the criteria of Resolution 09-41.

Resolution 09-41 required that the Mendenhalls install cattle guards that measure

sixteen feet. The resolution did not define whether the total width of the cattle

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guards was to measure sixteen feet or whether the area of the cattle guards that

vehicles could pass over was to measure sixteen feet. In light of this ambiguity, a

reasonable person could conclude that the Mendenhalls complied with the trial

court’s order by installing two cattle guards that measured sixteen feet in total

width.

[¶14.]       Alto Township contends that the requirement that the cattle guards

measure sixteen feet where vehicles pass over is inferred from the intent of

Resolution 09-41, which is to allow the public “reasonable vehicular and

agricultural equipment access to the roadway. . . .” However, the Mendenhalls

installed pipe gates with a thirty-foot width in addition to the two sixteen-foot cattle

guards. The total width of the sixteen-foot cattle guards and the thirty-foot pipe

gates allowed the public reasonable access to the roadway. Indeed, the Roberts

County Board of Commissioners, which initially passed Resolution 09-41,

determined that the Mendenhalls fully complied with Resolution 09-41.

[¶15.]       Had it been the intent of the Roberts County Board of Commissioners

to require the Mendenhalls to install cattle guards that measure sixteen feet where

vehicles pass over, Resolution 09-41 could have expressly so provided. In the

absence of such a clear expression of intent, the trial court’s order cannot serve as

the basis for a finding of contempt. Accordingly, we hold that the trial court’s

finding of contempt was clearly erroneous.

[¶16.]       Reversed.

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

Justices, and MEIERHENRY, Retired Justice, concur.


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[¶18.]   WILBUR, Justice, did not participate.




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