#27557-a-DG
2016 S.D. 90
                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA
                                     ****
CARLYLE SCHLIEM and
FARMERS STATE BANK OF CANTON,               Plaintiffs and Appellants,

      v.

STATE OF SOUTH DAKOTA,
by and through the Department
of Transportation and the South Dakota
Transportation Commission,                  Defendants and Appellees.

                                     ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA
                                     ****
                    THE HONORABLE LAWRENCE E. LONG
                                Judge
                                     ****
MARK V. MEIERHENRY
CLINT SARGENT
CHRISTOPHER HEALY of
Meierhenry Sargent, LLP
Sioux Falls, South Dakota

      and

LARRY A. NELSON of
Frieberg, Nelson & Ask, LLP
Canton, South Dakota                        Attorneys for plaintiffs
                                            and appellants.

KARLA L. ENGLE
Special Assistant Attorney General
Department of Transportation
 Office of Legal Counsel
Pierre, South Dakota                        Attorneys for defendants
                                            and appellees.

                                     ****

                                            ARGUED ON APRIL 26, 2016
                                            OPINION FILED 12/07/16
#27557

GILBERTSON, Chief Justice

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

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

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

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

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

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

                            Facts and Procedural History

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

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

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

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

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

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

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

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

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




1.      Wayland Avenue is a 17-foot-wide dirt road that is sometimes impassable.
        Because it is not currently suitable for traffic, we disregard its presence for
        the purposes of this appeal.

                                            -1-
#27557




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

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

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

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

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

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

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

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

segments of 63rd Street. The result is that the driving distance between the




                                         -2-
#27557

Property and the nearest intersecting highway is approximately 86 feet more than

before the State’s project. 2

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

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

northern border of Lots 6, 7, and 8. 3 It also took the right to directly access Cliff

Avenue from abutting Lot 19. 4 The State did not take or purchase any property

interest belonging to Schliem.

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

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

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

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

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

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

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

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



2.      In its memorandum decision, the circuit court stated that the distance from
        Cliff Avenue to Schliem’s property is approximately 748 feet, that the
        distance from Cliff Avenue to 63rd Street’s preconstruction dead end was
        approximately 1,282 feet, and that 63rd Street resumed and intersected with
        National Avenue and Gulby Avenue 300 feet to the east of its preconstruction
        dead end. Thus, Schliem’s property is only 534 feet away from the 300-foot,
        asphalt extension of 63rd Street, and he must travel approximately 834 feet
        to the east to reach the nearest intersecting highway.

3.      This taking is the subject of State v. Miller & Walsh, 2016 S.D. 88,
        ___ N.W.2d ___.

4.      This taking is the subject of State v. JB Enterprises, Inc., 2016 S.D. 89,
        ___ N.W.2d ___.

                                           -3-
#27557

identified a property interest that had been taken or damaged by the State, the

court granted the State’s motion.

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

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

                                Standard of Review

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

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

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

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

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

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

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

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

                              Analysis and Decision

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

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

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

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

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

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

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

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

‘damage’ sufficient to allow compensation to be awarded from [the State].” Schliem


                                          -4-
#27557

claims that “[t]his statement by the trial court which finds the necessary elements

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

Schliem is incorrect.

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

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

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

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

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

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

summary judgment. Those facts and responses are as follows:

             [State’s Fact 17]: After the Project, drivers wishing to access
             properties along 63rd Street will likely come from 60th Street,
             travel north on National Avenue or Gulby Avenue, and then
             proceed west down 63rd Street to their destination.
             [Schliem’s Response]: Admit that is a legal alternative access
             constructed by [the State] following its closure of the
             intersection at 63rd and Cliff. After the closure of the
             intersection, drivers attempting to reach the properties also use
             routes across the Perkins Restaurant property (Lot 19) to reach
             E. 63rd St. or use Wayland Avenue from 60th or 61st. Neither
             these nor any alternative built by the State provides a reasonable
             replacement access.
             [State’s Fact 18]: After the Project, drivers coming from the
             east on 60th Street will likely travel about 1,500 feet less to
             reach the Property.
             [State’s Fact 19]: After the Project, drivers coming from the
             west on 60th Street or the south on Cliff Avenue will likely
             travel about 1,100 feet more to reach the Property.
             [State’s Fact 20]: After the Project, drivers coming from the
             north on Cliff Avenue will likely travel about 3,050 feet farther
             to reach the Property.
             [Schliem’s Response]: Admit but deny the alternative routes
             provide reasonable access which is why the fair market value of
             the properties has diminished significantly.

                                          -5-
#27557

(Emphasis added.) According to Schliem, “[t]hese disputed facts prohibit summary

judgment.”

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

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

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

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

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

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

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

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

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

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

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

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

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


5.       See Triangle, Inc. v. State, 632 P.2d 965, 967-68 (Alaska 1981); Breidert v. S.
         Pac. Co., 394 P.2d 719, 722 n.4 (Cal. 1964) (en banc); State Dep’t of Hwys.,
         Div. of Hwys. v. Davis, 626 P.2d 661, 665 (Colo. 1981) (en banc); Palm Beach
         Cty. v. Tessler, 538 So. 2d 846, 850 (Fla. 1989); Dep’t of Transp. v. Taylor,
         440 S.E.2d 652, 655 (Ga. 1994); Dep’t of Pub. Works & Bldgs. v. Wilson & Co.,
         340 N.E.2d 12, 17 (Ill. 1975); Teachers Ins. & Annuity Ass’n of Am. v. City of
         Wichita, 559 P.2d 347, 357 (Kan. 1977); State ex rel. Dep’t of Hwys. v.
         Linnecke, 468 P.2d 8, 10 (Nev. 1970); Narciso v. State, 328 A.2d 107, 110 (R.I.
         1974); State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996); Stefan Auto Body v. State
         Hwy. Comm’n, 124 N.W.2d 319, 321 (Wis. 1963). Contra State ex rel. Herman
         v. Schaffer, 467 P.2d 66, 72 (Ariz. 1970) (en banc); Wilson v. Iowa State Hwy.
         Comm’n, 90 N.W.2d 161, 167-68 (Iowa 1958); Hendrickson v. State,
         127 N.W.2d 165, 172 (Minn. 1964); Balog v. State, Dep’t of Rds., 131 N.W.2d
         402, 410 (Neb. 1964); Cady v. N.D. Dep’t of Transp., 472 N.W.2d 467, 470
         (N.D. 1991); State Hwy. Comm’n v. Peters, 416 P.2d 390, 395 (Wyo. 1966).

                                             -6-
#27557

25 (“[W]hether a taking occurred is a question of constitutional law which we review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




6.       At oral argument, counsel for Schliem conceded that the question whether
         compensation is due under Article VI, § 13, of the South Dakota
         Constitution—e.g., whether a landowner’s right of access has been
         substantially impaired—is a question of law.

                                          -7-
#27557

judgment or in his responses to the State’s motion for summary judgment. 7

Therefore, we proceed to the legal merits.

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

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

limiting compensation to cases where a state physically appropriated or invaded

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

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

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

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

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

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

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


7.       The dissent notes that “cross-motions for summary judgment do ‘not mean
         that there are no genuine issues, obliging a court to grant judgment for one
         side or the other. Both motions must be denied if the court detects genuine
         issues of fact or genuine issues regarding the inferences to be drawn from the
         facts.’” Infra ¶ 41 n.26 (emphasis added) (quoting St. Paul Fire & Marine
         Ins. Co. v. Engelmann, 2002 S.D. 8, ¶ 15, 639 N.W.2d 192, 199). Contrary to
         the dissent’s implication, this opinion does not suggest otherwise. The point
         is that Schliem had multiple opportunities to assert facts that he viewed as
         material and disputed. He failed to do so both before the circuit court and in
         argument to this Court. See supra ¶¶ 9-10. While the dissent would
         nevertheless reverse to grant Schliem yet another opportunity to do so, our
         firmly established summary-judgment jurisprudence requires otherwise. See
         Gades, 2015 S.D. 42, ¶ 7, 865 N.W.2d at 158.
         Like Schliem, the dissent also fails to identify any issue of material fact in
         this case. Instead, the dissent is premised on Schliem’s incorrect argument
         that the parties’ disagreement on the reasonableness of the remaining access
         is a factual dispute. See infra ¶¶ 31-32 & nn.20-21. As explained above, the
         question whether access has been substantially impaired (i.e., whether
         remaining access is reasonable) is a question of law, not a question of fact.
         See supra ¶ 10 & n.5.

                                           -8-
#27557

which was the subject of property[;] . . . one could recover only when there was an

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

South Dakota’s constitution added the words or damaged to Article VI, § 13. 8 See

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

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

§ 13.

[¶13.]         In light of the foregoing, the first step in any Article VI analysis 9 must

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



8.       This conclusion is confirmed by an examination of the constitutional debates
         of 1885. During debate on the meaning of the proposed Article VI, attorney
         Robert Dollard commented:
               As I remember it, [the Takings Clause] was in the constitution
               of the state of Illinois, 1848, which was superceded by the
               constitution of 1870. That didn’t work right. Their experience
               proved that that was not sufficient to protect the people; hence
               [the] addition [of the words or damaged]. Their condition and
               our condition is substantially the same. The reason for the
               addition here is the same as there—that private property shall
               never be damaged without just compensation. . . . [I]t was held,
               and I think it was uniformly held by the Supreme Court of the
               state of Illinois, that it was only the property taken that a man
               could demand compensation for. They might destroy his
               property incidentally, but if they did not take it he was not
               entitled to recover a penny’s compensation.
         1 Dak. Const. Convention 297 (1885) (Doane Robinson ed., 1907). Mr.
         Dollard—who was elected attorney general for the provisional government in
         1885 and went on to become South Dakota’s first attorney general—was
         uniquely qualified to make these comments. Before moving to Dakota
         Territory in 1879, Mr. Dollard was admitted to the Illinois bar in 1870.

9.       As the California Supreme Court has explained: “An inverse condemnation
         action is an eminent domain proceeding initiated by the property owner
         rather than the condemner. The principles which affect the parties’ rights in
         an inverse condemnation suit are the same as those in an eminent domain
         action.” Breidert, 394 P.2d at 721 n.1. Compare Hurley, 82 S.D. at 161,
                                                            (continued . . .)
                                            -9-
#27557

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

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

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

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

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

arguments are convincing.

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

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

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

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

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

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

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

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

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

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

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

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

________________________
(. . . continued)
         143 N.W.2d at 725 (requiring peculiar injury for recovery in inverse-
         condemnation case), with State Hwy. Comm’n v. Bloom, 77 S.D. 452, 461,
         93 N.W.2d 572, 577 (1958) (requiring peculiar injury for recovery in formal-
         condemnation case).

10.      “What property is and the rights that attach to ownership are primarily a
         matter of state law.” 2 Julius L. Sackman, Nichols on Eminent Domain
         § 5.01[2] (3d ed., rel. 102-7/2011).

                                          -10-
#27557

When a recognized property interest has not been infringed, “[t]here is no redress,

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

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

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

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

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



11.   Some decisions seem to categorically deny compensation when the state
      action complained of is labeled a manifestation of the police power rather
      than the power of eminent domain. For example, this Court has said that
             relocations of a highway, prohibitions against crossing it or
             against left and U turns, the designation of one-way streets and
             other similar restrictions and regulations have been upheld as
             proper exercises of the police power of the state and not of the
             power of eminent domain. As such they are not compensable.
      Darnall, 79 S.D. at 68, 108 N.W.2d at 206. However, “[t]he distinction is not
      whether [the conduct at issue] is a valid exercise of police power but
      whether . . . the property itself is taken or damaged.” Hurley, 82 S.D. at 162,
      143 N.W.2d at 725 (quoting Balog, 131 N.W.2d at 408). “While courts have
      assumed that designating a regulation an exercise of police power prevents
      compensation by eminent domain proceedings, for practical purposes this is
      simply a convenient way of describing which activities confer a right to
      damages and which do not.” Id. at 162-63, 143 N.W.2d at 726 (emphasis
      added) (quoting Hendrickson, 127 N.W.2d at 170).
             The fact that [the State] had under the police power the right to
             improve its streets and thereby control the traffic thereon does
             not mean that it had immunity from liability to respond in
             damages which resulted to private property abutting the
             improvement where a part of the property of appellee was taken
             by condemnation. The exercise of police power may or may not
             involve the taking of private property and it may or may not
             involve mere non-compensable inconvenience to the owner
             thereof.
      Id. at 162, 143 N.W.2d at 725 (emphasis added) (quoting Balog, 131 N.W.2d
      at 408). Thus, statements like that in Darnall should simply be read as
      recognizing that loss resulting from a state’s use of its police power is
      typically—though not always—noncompensable.

                                         -11-
#27557

compensable under Article VI, § 13. See Morris Family, LLC ex rel. Morris v. S.D.

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

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

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

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

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

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

due if a recognized property interest has been infringed. 12

               The doctrine of assemblage applies when the highest and best
               use of separate parcels involves their integrated use with lands
               of another. Pursuant to this doctrine, such prospective use may
               be properly considered in fixing the value of the property if the
               joinder of the parcels is reasonably practicable. If applicable,
               this doctrine allows a property owner to introduce evidence
               showing that the fair market value of the owner’s real estate is
               enhanced by its probable assemblage with other parcels.

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

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

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

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

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



12.      As noted above, “the ultimate determination of whether government conduct
         constitutes a taking or damaging is a question of law for the court.” Rupert,
         2013 S.D. 13, ¶ 29, 827 N.W.2d at 67; accord Hall, 2006 S.D. 24, ¶ 8,
         712 N.W.2d at 25; 4A Sackman, supra ¶ 10, § 14.02[3][c][ii]. If the court
         determines a property right has been taken or damaged, then the case
         proceeds to a jury. However, our Legislature has declared that “[t]he only
         issue that shall be tried by the jury . . . shall be the amount of compensation
         to be paid for the property taken or damaged.” SDCL 31-19-4 (emphasis
         added); accord SDCL 21-35-15.

                                           -12-
#27557

recognized property right has not been infringed, then no compensation is due.

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

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

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

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

is entitled to compensation under Article VI, § 13. 13

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

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

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

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

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

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

added). Thus,

               [p]roperty ownership includes two access related rights:
                      the right to pass to or from the public way immediately
                      adjacent to the land (“ingress and egress”);

13.      The dissent makes a similarly erroneous argument by claiming that “[i]n
         Hurley, this Court considered a property’s highest and best use when
         determining whether a substantial impairment occurred.” Infra ¶ 37. This
         claim is factually incorrect. We did not use the change in highest and best
         use of the property as a basis for concluding a taking had occurred; rather, we
         referenced the highest and best use in stating the method for calculating the
         resulting compensation due. In Hurley, we said:
               The measure of damages for the obstruction or substantial
               impairment of an abutting landowner’s right of access to a street
               or highway is the difference between the market value of the
               property considered at its highest, best, and most profitable use
               immediately before and immediately after the destruction or
               impairment.
         82 S.D. at 164, 143 N.W.2d at 726 (emphasis added).

                                           -13-
#27557

                      and the right to go somewhere else once the owner is upon
                      the abutting road, or the right of access to the entire
                      system of roads.

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

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

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

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

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

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

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

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

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

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

convenient access to the system of public highways.

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

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

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

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

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

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

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



14.      The phrases diversion of traffic and mere circuity of travel refer to distinct
         legal concepts.
               “Diversion of traffic” implies a reduction in the volume of traffic
               passing adjacent to the property, and concomitant loss of
                                                               (continued . . .)
                                            -14-
#27557

traffic regulations, by their very nature, involve mere diversion of traffic and

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

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

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

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

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

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

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

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

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

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

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




________________________
(. . . continued)
               patronage. Since government has no vested interest or duty to
               ensure that a business is successful when it builds roads for the
               future, an owner likewise can have no reasonable expectation
               that such roads are fixed forever. The task is to isolate “mere”
               diversion of traffic cases from compensable takings which,
               coincidentally, divert traffic.
             Circuity of travel implies an indirect and more inconvenient
             means of reaching the property.
      8A Rohan & Reskin, supra ¶ 16, § G16.03[2][a].

15.   Our citation to City of Memphis v. Hood should not be read as suggesting that
      every increase in circuity of less than seven miles is noncompensable. “The
      difference between ‘mere circuity of travel’ and unsuitable access is one of
      degree, and is directly related to the unique fact pattern in every case.”
      8A Rohan & Reskin, supra ¶ 16, § G16.03[2][a].

                                          -15-
#27557

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

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

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

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

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


16.      Although the dissent acknowledges that the circuit court applied the correct
         legal test in this case, the dissent would nevertheless “remand for an
         evidentiary hearing to more fully develop the record and to apply the test
         articulated in Miller & Walsh.” Infra ¶ 41. It similarly claims that “[t]he
         circuit court did not include an analysis of the factors it considered to reach
         [its] conclusion, nor did it have the benefit of the guidance provided by this
         Court in Miller & Walsh.” Infra ¶ 33 (footnote omitted). There are several
         problems with this argument.
         The dissent’s argument is inconsistent with our Miller & Walsh decision.
         The significance of Miller & Walsh is the clarification of when to apply the
         substantial-impairment rule—i.e., a change in access may not be included in
         calculating the compensation due in the case of a partial taking unless the
         change in access amounts to a substantial impairment of access. See Miller
         & Walsh, 2016 S.D. 88, ¶¶ 45-46, ___ N.W.2d at ___ (overruling Schuler v.
         Bd. of Supervisors of Lincoln Twp., 12 S.D. 460, 81 N.W. 890 (1900)). Unlike
         Miller & Walsh, the present case does not involve a partial taking; therefore,
         the central holding of Miller & Walsh has no application in the present case.
         Although the substantial-impairment rule is of course discussed in Miller &
         Walsh, it did not originate there—that rule has been the law in this State for
         well over a century. See Hurley, 82 S.D. at 164, 143 N.W.2d at 726-27 (1966);
         Searle, 10 S.D. at 316-19, 73 N.W. at 103-04 (1897). Thus, our Miller &
         Walsh decision is not necessary to resolve the issue on appeal in this case.
         Even if it was, the dissent’s argument is misconceived because it ignores both
         the procedural posture of this case and the standard under which we review
         the circuit court’s decision. In contrast to Miller & Walsh, which involves the
         appeal of a jury verdict, the present case is an appeal of an order granting
         summary judgment. Thus, as the dissent concedes, see infra ¶ 33 n.23, the
         circuit court was not required to offer any analysis or issue any conclusions of
         law whatsoever. SDCL 15-6-52(a) (“Findings of fact and conclusions of law
         are unnecessary on decisions of motions [for summary judgment].”).
         Moreover, as noted above, this Court does not afford any deference to the
         circuit court’s conclusions of law on appeal—we apply the de novo standard of
         review. See supra ¶ 10. Because we are not bound by the circuit court’s legal
         conclusions, the law applied by the circuit court is immaterial to our decision.

                                            -16-
#27557

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

compensable.




17.   The dissent’s contrasting calculation that “those accessing Schliem’s property
      from Cliff Avenue will travel 3,050 feet farther[,]” infra ¶ 30 n.19, reflects the
      dissent’s erroneous belief that a nonabutting landowner has a right to access
      his property via a particular route. As previously explained, a nonabutting
      landowner has no such right. See supra ¶ 16.

                                          -17-
#27557

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

compensable under Article VI, § 13.

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

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

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


                                          -18-
#27557

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

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

their business due to the resulting decline in sales. They brought an inverse-

condemnation action against the State, but the circuit court granted a motion for

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

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

             [T]he [circuit] court limited [its] analysis to whether the Owners
             had a property right to passing traffic. The trial court did not
             consider whether Owners still had reasonable access, whether
             their access was materially impaired, or whether their injury
             was peculiar to their land and not of a kind suffered by the
             public generally. Also, the court did not address whether the
             State’s action was arbitrary or unreasonable.

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

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

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

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

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

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

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

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

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

statement by quoting the following language from Hurley:

             The state cannot, under the guise of the police power, impose
             unreasonable or arbitrary regulations which go beyond that
             power, and in effect deprive a person of his property within the
             purview of the law of eminent domain, as by depriving the
             owner of all profitable use of the property not per se injurious or
             pernicious, restricting the lawful uses to which the property can
             be put and destroying its value, permanently so restricting the
                                          -19-
#27557

               use of the property that it cannot be used for any reasonable
               purpose, or completely destroying the beneficial interest of the
               owner.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court has explained:



18.      It is undisputed that the reason for the State’s decision to close the
         Intersection was to facilitate efficient traffic movements on Cliff Avenue and
         the Interstate 90 on-ramp. In its statement of undisputed material facts
         supporting its motion for summary judgment, the State asserted: “The
         proximity of [the intersection of Cliff Avenue and 63rd Street] to the on-ramp
         hindered efficient traffic movements on Cliff Avenue and the interstate
         ramp.” In his response, Schliem admitted this assertion without
         qualification.

                                           -20-
#27557

             [S]uch an inquiry is logically prior to and distinct from the
             question whether a regulation effects a taking, for the Takings
             Clause presupposes that the government has acted in pursuit of
             a valid public purpose. The Clause expressly requires
             compensation where government takes private property “for
             public use.” It does not bar government from interfering with
             property rights, but rather requires compensation “in the event
             of otherwise proper interference amounting to a taking.”
             Conversely, if a government action is found to be
             impermissible—for instance because it fails to meet the “public
             use” requirement or is so arbitrary as to violate due process—
             that is the end of the inquiry. No amount of compensation can
             authorize such action.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


                                           -21-
#27557

addressed the only question of reasonableness Schliem presented and correctly

concluded that he is not entitled to compensation.

                                      Conclusion

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

compensation unless state conduct has infringed a recognized property interest.

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

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

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

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

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

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

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

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

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

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

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

judgment.

[¶25.]       We affirm.

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

[¶27.]       KERN, Justice, dissents.




                                          -22-
#27557

KERN, Justice (dissenting).

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

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

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

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

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

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

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

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

predominately industrial. The development to the west is predominately

commercial.

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

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

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

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

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

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

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

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

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



19.      Those wishing to access Schliem’s property from Cliff Avenue before the
         State’s project turned east onto 63rd Street and traveled approximately 748
         feet. After the project, those accessing Schliem’s property from Cliff Avenue
         will travel 3,050 feet farther—through an industrial park.

                                           -23-
#27557

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

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

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

property changed from commercial use to industrial.

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

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

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

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

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

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

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

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

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

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

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

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

considered the reasonableness of Schliem’s remaining access. 21



20.      The State argued that “the test for reasonable access applies [only] to
         landowners who abut a street where their access ha[d] been changed.”
         Because Schliem’s property did not abut the access closure on Cliff Avenue,
         the State maintained that the court must only consider whether Schliem
         could show a special injury. The state submitted, “So it’s this special injury
         test that applies in this case, not a reasonableness standard.”

21.      The State urged, “[I]f the [c]ourt decides that you agree with them and that
         these old cases justify them claiming damages in inverse condemnation as a
         result of the closure of the intersection, if you think that’s the right test, that
                                                                 (continued . . .)
                                             -24-
#27557

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

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

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

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

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

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

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

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

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

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

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

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

at ___.


________________________
(. . . continued)
         it’s a reasonableness test instead of a special injury test that we urged, if
         you think that’s the correct test, then we’d like the opportunity to submit
         additional evidence . . . to prove that that intersection was not a good place
         for commercial access for these lots to the east, and in addition, we’d like the
         opportunity to prove that they didn’t suffer the damages that they claim.”
         Additional evidence was not submitted to the circuit court.

22.      The circuit court did not make a determination regarding whether Schliem’s
         alleged injury was peculiar to his land and not the kind suffered by the public
         in general.

23.      While findings of fact and conclusions of law are “unnecessary” in summary
         judgment cases, see SDCL 15-6-52(a), a reasoned analysis to support the
         conclusion that a substantial impairment did or did not occur in light of the
         unique facts of the case is warranted due to the fact-intensive nature of
         inverse-condemnation cases.


                                             -25-
#27557

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



24.      See also Darnall, 79 S.D. at 70, 108 N.W.2d at 207 (“[W]here there is no
         physical taking and the owner’s access to the highway on which he abuts is
         not unreasonably diminished or interfered with, his loss is due to the
         diversion of traffic, a lawful exercise of the police power and there can be no
         recovery.”); Hurley, 82 S.D. at 163, 143 N.W.2d at 726 (“In each case,
         therefore, the relative rights of the public and private interests must be
         considered and the reasonableness of the regulation and the degree of its
         interference with private property determined. If, after the construction of a
         public improvement an abutting landowner continues to have reasonable
         access to his property, he has no compensable complaint. But if the right of
         access is destroyed or materially impaired, the damages are compensable if
         the injury sustained is peculiar to the owner’s land and not of a kind suffered
         by the public generally.”); Hall, 2006 S.D. 24, ¶ 18, 712 N.W.2d at 29 (“[A]
         landowner’s right of access and the state’s police power to regulate highways
                                                                 (continued . . .)
                                             -26-
#27557

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

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

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

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

record.

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

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

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

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

________________________
(. . . continued)
         often conflict. This conflict clearly manifests when the state eliminates an
         abutting landowner’s highway access . . . the relationship between the rights
         of the property owner and the rights of the state must be considered in light
         of the facts of each case.”).

25.      Although Hurley involved an abutting landowner, this case is no different.
         Abutting and nonabutting landowners may have differing property rights.
         However, the change in highest and best use in Hurley went toward
         determining whether the property right had been substantially impaired—
         not whether there was an initial property right.
               Before the construction of Interstate 90 free, open, and unobstructed
               access was available from the property to both Omaha Street on the
               south and West Boulevard on the east. Its highest, best and most
               profitable use was for an automobile service station and one of the
               major considerations contributing to its value for such purpose was the
               right of access to two streets. Negotiations with major oil companies
               were in progress when the state erected the steel barrier closing all
               access to the property from West Boulevard and for a limited distance
               on Omaha Street. The barrier left access only to the west-bound traffic
               on Omaha Street. Likewise, all pedestrian traffic was closed off from
               the east and from the south. Consequently, the Referee correctly
               concluded plaintiffs’ right of access was substantially impaired and
               they suffered a compensable loss.
         Hurley, 82 S.D. at 163-64, 143 N.W.2d at 726.


                                          -27-
#27557

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

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

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

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

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

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

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

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

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

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

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

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

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

access occurred. See supra n.25.

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

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

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

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

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

substantially impaired.

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

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

remanded and articulated specific factors that the court should use when


                                          -28-
#27557

determining whether access rights were substantially impaired. Those factors

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

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

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

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

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

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

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

guidance when this case was decided.

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

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

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

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

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

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

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

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

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

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

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

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



26.      The majority suggests that there are no genuine issues of material fact in
         dispute and that Schliem, in filing his own motion for summary judgment,
                                                             (continued . . .)
                                            -29-
#27557

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

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

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

rights were substantially impaired, it must then determine whether that

impairment was peculiar to his land.




________________________
(. . . continued)
         “necessarily represented to the court that the material facts of this case were
         undisputed.” Supra ¶ 11. However, we have held that cross-motions for
         summary judgment do “not mean that there are no genuine issues, obliging a
         court to grant judgment for one side or the other. Both motions must be
         denied if the court detects genuine issues of fact or genuine issues regarding
         the inferences to be drawn from the facts.” St. Paul Fire & Marine Ins. Co. v.
         Engelmann, 2002 S.D. 8, ¶ 15, 639 N.W.2d 192, 199. Here, there were
         inferences to be drawn from the facts necessary to make a determination on
         substantial impairment. Moreover, Hall came to this Court on cross-motions
         for summary judgment; yet we still reversed and remanded because the
         parties disagreed on the purpose of the State’s action. Hall, 2006 S.D. 24,
         ¶ 21, 712 N.W.2d at 30. In this case, the parties disagreed on the
         reasonableness of the remaining access—a factor which the circuit court must
         consider before deciding whether Schliem’s access had been substantially
         impaired.


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