#27198-rev & rem-JMK & GAS
2016 S.D. 88

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA
                                      ****
STATE OF SOUTH DAKOTA,
by and through the Department of
Transportation and the South Dakota
Transportation Commission,                   Plaintiffs and Appellants,

      v.

ROBERT L. MILLER and
THOMAS P. WALSH,                             Defendants and Appellees.

                                      ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA
                                      ****
                    THE HONORABLE SUSAN M. SABERS
                               Judge
                                      ****
KARLA L. ENGLE
Special Assistant Attorney General
Department of Transportation
 Office of Legal Counsel
Pierre, South Dakota

      and

ANTHONY M. HOHN
Special Assistant Attorney General
Davenport, Evans, Hurwitz
 & Smith, LLP
Sioux Falls, South Dakota                    Attorneys for plaintiffs
                                             and appellants.

                                      ****


                                             ARGUED ON
                                             SEPTEMBER 2, 2015
                                             OPINION FILED 12/07/16
MARK V. MEIERHENRY
CLINT SARGENT
CHRISTOPHER HEALY of
Meierhenry Sargent, LLP
Sioux Falls, South Dakota   Attorneys for defendants
                            and appellees.
#27198

KERN and SEVERSON, Justices

[¶1.]        Justice Kern delivers the opinion of the Court on Issue One,

Issue Two, and Issue Three. Justice Severson delivers the opinion of the

Court on Issue Four.

[¶2.]        KERN, Justice, writing for the Court on Issue One, Issue Two,

and Issue Three.

[¶3.]        The State reconstructed the interchange at Interstate 90 and Cliff

Avenue in Sioux Falls, South Dakota. Prior to the project, the State instituted a

quick-take condemnation action against landowners Robert Miller and Thomas

Walsh and effected a partial taking of their real property south of the interchange

on-ramp. Miller and Walsh and the State disputed the amount of compensation

due. After a four-day trial, the jury awarded Miller and Walsh $551,125. The State

appeals.

                                  BACKGROUND

[¶4.]        In 2012, the State planned to reconstruct part of the South Dakota

state trunk highway system pursuant to a federal aid project. Particular to this

appeal is the State’s reconstruction of the interchange at Interstate 90 and Cliff

Avenue. Miller and Walsh owned real property 100 feet from the east-bound on-

ramp to Interstate 90, namely Lots 5, 6, 7, 8, and 15 of North Side Gardens (the

Property). Lots 5, 6, 7, and 8 are vacant and contiguous. Lot 15 sits directly across

from Lot 6, abutting 63rd Street. Lot 15 is vacant except for a storage shed in the

southwest corner of the lot. The Property is zoned for commercial use. None of




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these lots abut Cliff Avenue or have direct access to Interstate 90. Direct access to

the Property exists via 63rd Street.

[¶5.]        Before the public improvement, Miller and Walsh accessed the

Property by traveling on Cliff Avenue, turning east onto 63rd Street, and

proceeding a short distance to the Property. Prior to the public improvement, 63rd

Street was a narrow gravel road that ended approximately 280 feet east of the

Property. During the public improvement, the State built a 300-foot asphalt

extension connecting 63rd Street with another segment of 63rd Street farther to the

east. This extension also connected 63rd Street to National Avenue. National

Avenue runs north and south through an industrial park and connects with East

60th Street. Gulby Avenue also runs north and south and intersects with 63rd

Street. After the State constructed the extension on 63rd street, it closed the

intersection at Cliff Avenue and 63rd Street (the Intersection), cutting off Miller

and Walsh’s access to the Property from Cliff Avenue. To access the Property,

Miller and Walsh now have to come from 60th Street and travel north on National

Avenue or north on Gulby Avenue and then turn west on 63rd Street.

[¶6.]        To complete the public improvement, the State required a temporary

easement and permanent easement over Lots 6, 7, and 8. It also condemned a

triangular-shaped piece of land from the northern portion of these lots. The State

adopted a resolution declaring the necessity of the taking and instituted a quick-

take condemnation action against Miller and Walsh. See SDCL ch. 31-19. The

State did not dispute the compensability of the taking and deposited $20,100 cash

with the Minnehaha County Clerk of Courts. On May 21, 2012, the State filed a


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summons, petition, and declaration of taking pursuant to SDCL 31-19-3 and

SDCL 31-19-23. Miller and Walsh did not contest the taking under SDCL 21-35-

10.1 and requested that a jury determine damages.

[¶7.]        Prior to the trial to determine damages, the State moved for partial

summary judgment. It asserted that Miller and Walsh did not suffer a compensable

taking or damaging to their property due to the closure of the Intersection. The

State acknowledged that Miller and Walsh have a right to reasonable access to the

streets abutting the Property but claimed that Miller and Walsh’s remaining access

was reasonable because their access to 63rd Street remained unchanged. Miller

and Walsh responded that the closure of the Intersection destroyed the highest and

best use of their property and, therefore, significantly reduced its value. They did

not assert a special property right in the Intersection. Rather, Miller and Walsh

claimed that the State impaired their right of reasonable access to the

transportation “grid” when it closed the Intersection.

[¶8.]        After a hearing, the circuit court issued an incorporated memorandum

decision. It found no issue of material fact in dispute and held that the closure of

the Intersection did not effect a compensable taking. The court wrote, “Although

[Miller and Walsh] are entitled to severance and consequential damages for the

taking of their properties, damages relating to the intersection closure may not be

considered by the jury in awarding consequential damages.” The court entered an

order granting the State partial summary judgment, ruling that “[t]he parties are

prohibited from presenting evidence and making arguments to the jury about




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damages to Defendants’ property as a result of the closure of 63rd Street and Cliff

Avenue intersection.”

[¶9.]        The parties filed additional pretrial motions. Miller and Walsh filed a

motion to allow evidence of damage to Lot 15 as part of the property damaged by

the taking even though the State did not physically take any portion of Lot 15 and

Lot 15 is not connected to Lots 6, 7, or 8. The State filed a motion in limine to

prevent Miller and Walsh from presenting evidence “of any kind” relating to “an

alleged loss of access to Cliff Avenue” or evidence relating to a “hotel project that

Kelly Inns LTD proposed and then abandoned before the date of taking in either of

these cases.” Prior to the public improvement, Kelly Inns owned Lots 16 and 17.

According to Miller and Walsh, Kelly Inns intended to construct a Kelly Inn hotel in

conjunction with Miller and Walsh’s plan to commercially develop the area. Miller

and Walsh argued that the hotel project was relevant to establish the commercial

viability of the Property. The State filed a second motion for partial summary

judgment to prevent the admission of evidence relating to any loss allegedly

suffered by Miller and Walsh because of the impact of the public improvement on

property not owned by Miller or Walsh.

[¶10.]       The court held a consolidated motions hearing. It granted Miller and

Walsh’s motion to present evidence of damage to Lot 15 as part of the “larger

parcel.” It also granted in part the State’s second motion for partial summary

judgment and ruled that Miller and Walsh “will not be permitted to make a

separate and stand-alone claim for the closure of the intersection at 63rd Street

North and Cliff Avenue and the [c]ourt will not instruct the jury on such a claim.”


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It also denied in part the State’s second motion for partial summary judgment and

ruled that Miller and Walsh “will be permitted to present evidence regarding the

depreciation in value of their remaining property by reason of the diversion of travel

caused by the taking that occurred, which is a proper factor that may be considered

by the jury in determining the highest and best use of the property and its fair

market value before and after the taking.” The court denied the State’s motion in

limine to exclude evidence relating to the proposed and then abandoned

construction of a Kelly Inn hotel.

[¶11.]       A jury trial was held on June 24-27, 2014. Miller and Walsh presented

evidence that, in 1990, Miller purchased Lots 18 and 19 with plans to purchase

more land and develop the area commercially. In 1999, Miller purchased Lot 17

and in 2000, Lots 2, 3, and 4. In 2004, Miller and others acquired Lot 16, and Miller

purchased Lots 5 and 6. Later Miller asked Walsh to join in ownership of Lots 5

and 6. Walsh shared Miller’s vision to develop the area commercially. Walsh

owned Lot 20, which a Burger King occupied. Miller, via JB Enterprises, Inc.,

owned a Perkins Restaurant on Lot 19, which lot abutted the Intersection.

[¶12.]       Miller and Walsh presented evidence specifically related to the

intended construction of a Kelly Inn hotel in North Side Gardens. Over the State’s

objection, Miller, Walsh, and several other witnesses testified that Kelly Inns did

not build the hotel because of the State’s public improvement. Miller and Walsh

also presented evidence that had the hotel been built the Property would have

enjoyed an alternative access over Lot 15 by an easement agreement that Miller

and Walsh and Kelly Inns intended to execute. In response, the State emphasized


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that no easement in fact existed. The State presented evidence that Miller and

Walsh’s commercial development plans were in their infancy. Lots 5, 6, 7, and 8 did

not have water or sewer service and the Property abutted a narrow dirt road, 63rd

Street. The State further asserted that Kelly Inns abandoned its plan to build a

hotel in 2010, which, in the State’s view, makes the hotel project irrelevant in this

case because the date of the “taking” was June 12, 2012.

[¶13.]       Over the State’s objection, Miller and Walsh presented evidence that

the Property diminished in value because the State took a portion of their property

to reconstruct the interchange, which public improvement as a whole eliminated the

highest and best use of the Property as general commercial. The court permitted

the evidence, relying on Schuler v. Board of Supervisors of Lincoln Township,

12 S.D. 460, 81 N.W. 890 (1900). In the circuit court’s view, Schuler stands for the

proposition that the jury has a right to consider the diversion of traffic “in

determining the question of how much the plaintiffs’ lands were depreciated in

value by reason of the proposed highway.” See id. at 460, 81 N.W. at 893.

[¶14.]       The court also permitted Dan Mueller, Miller and Walsh’s expert, to

testify that the State’s public improvement impacted the value of Lots 5, 6, 7, 8, and

15 as a whole, even though the State did not physically take any portion of Lot 15.

Mueller explained, over the State’s objection, that Lot 15 was part of the “larger

parcel” making up Miller and Walsh’s property, even though Lot 15 was not

physically connected to Lots 5, 6, 7, or 8. According to Mueller, the Property

satisfied the three elements of the “larger parcel rule”: (1) unity of ownership, (2)

contiguity, and (3) unity of use. The Property had unity of ownership because it


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was owned by Miller and Walsh, had unity of highest and best use because the land

is zoned commercial and had tendencies for commercial development, and satisfied

the contiguity element because “Lot 15 could be incorporated into a development

that would also make use of Lots 5, 6, 7, and 8.”

[¶15.]       In regard to the specific value of the Property before the taking,

Mueller explained that he did “an appraisal that would consider how the market

would view the property absent the project that’s going to be occurring[.]” He

further explained that although the date of taking was June 12, 2012, the appraisal

considered more than “the facts on the ground on June 12[.]” Mueller examined the

property as if the market had no knowledge of the State’s public improvement. In

Mueller’s opinion, “[t]he highest and best use in this area would be a generalized

commercial use that would be supported by the various attributes that the property

had to offer.” He testified that he considered Miller and Walsh’s intent to develop

the area commercially. He noted that he did not give much consideration to the

intended construction of the Kelly Inn, except that the plan to construct the Kelly

Inn supported the idea that the Property was commercially viable. He identified

seven comparable sales. He explained that he valued the Property as a vacant lot

considering its roads and the access points. After adjusting the comparable

properties in relation to the Property, Mueller valued the Property prior to the

State’s taking at $6.50 per square foot for a total value of $778,800.

[¶16.]       In valuing the Property after the taking, Mueller testified that he took

into account: (1) the decrease in the Property’s square footage from the State’s

physical taking of land, (2) the State’s temporary easement, and (3) the change in


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the overall access to the Property. He explained that after the public improvement

it was “not at all realistic” to think the Property could be developed commercially.

In Mueller’s opinion, the State’s public improvement relegated the highest and best

use of the Property from generalized commercial to industrial. He explained that,

prior to the taking, there were no industrial improvements separating the Property

from Cliff Avenue. “And that’s the key point. And in the after situation you now - -

now you’ve reversed the orientation of this land, whereas the front door of this land

in the before was a commercial corridor, that’s now the back with no access. Now

the front door is an industrial park that you must drive through in order to reach it

and that’s a completely different dynamic.” Mueller described that the remaining

access to the Property existed through two routes: (1) travel down 61st Street to

Wayland Avenue along a “field road”; and (2) travel from 60th Street to National

Avenue through an industrial park to the Property. Mueller opined that the

changes to access “dramatically” affected the highest and best use of the Property.

He further took into account that Kelly Inns sold its property to the State and

abandoned its plans to build the hotel. Ultimately, Mueller valued the Property

after the taking at $2.05 per square foot for a total value of $239,500.

[¶17.]       In response, the State presented expert testimony of commercial real

estate appraiser John Schmick that the highest and best use of the Property both

before and after the taking was either low-end commercial or high-end industrial.

Schmick testified that, contrary to Mueller’s opinion, Lot 15 should not be valued as

part of the larger parcel because it was not connected to the other lots and has not

yet been used for commercial development. When Schmick began to explain his


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rationale for that conclusion the circuit court interrupted his testimony. After a

short bench conference the court dismissed the jury to discuss the issue on the

record with counsel. The court informed the parties that it believed it had entered a

pretrial ruling that all three elements of the larger parcel rule had been met and

indicated that it interrupted Schmick’s testimony because the court was “not

inclined to allow a nonlegally trained gentleman to get on the stand and overrule

[the court’s] legal conclusion from a prior written decision and hearing.” The court

ruled that Schmick “can testify that factually his determination was that 15 was not

part of a larger parcel, and then he can testify as to his valuation, which is his

purpose here today.” However, Schmick could not “cite the case law. He’s not going

to instruct the jury that legally it’s not part of it.”

[¶18.]        Schmick valued Lots 5, 6, 7, and 8 at $235,000 before the taking and

$211,000 after the taking. For Lot 15, Schmick estimated no value change:

$112,000 before and after the taking. According to Schmick, the closure of the

Intersection did not affect the value of the Property. He explained, “[Y]ou had a

dead-end street before, you’ve got a dead-end street afterwards. It just comes from

a different direction. But zoning hasn’t changed. You’re still fronting 63rd Street.

The uses that are allowed by zoning in the before are still allowed in the after. And

in terms of low-end commercial these are going to be more destination-oriented

things. You know, being they’re not fronting on Cliff they don’t need to front on

Cliff so those uses can still be there.”

[¶19.]        At the close of the trial, Miller and Walsh moved for a judgment as a

matter of law that Lot 15 be included in the valuation of the parcel. The State


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responded that the jury must decide if Lot 15 was part of the larger parcel. The

court found that based on its pretrial ruling and based on the evidence presented at

trial, “unity of use, unity of ownership and contiguity have been established as a

matter of law[.]” The court granted Miller and Walsh’s motion.

[¶20.]       During the settling of jury instructions, Miller and Walsh requested

that the court modify the pattern jury instruction on the formula for calculating just

compensation to use the word “project” instead of “taking” to describe the “before

and after” effect of the State’s public improvement. Miller and Walsh expressed

concern that use of the word “taking” would lead the jury to value only the physical

taking of land on Lots 6, 7, and 8. They believed that the use of the word “project”

would allow the jury to consider the damage caused to the Property by the State’s

public improvement as a whole. The State argued that the pattern jury instruction

accurately described the law in South Dakota and that other instructions proposed

by the circuit court would make it clear to the jury that it could award

consequential damages.

[¶21.]       The court modified the instruction to use the word “project” rather

than “taking,” concluding that “the change is both legally accurate and factually

necessary here[.]” Instruction 7 provided:

             The State of South Dakota is taking only part of Defendant
             landowners’ property. The residue of the tract of land remains
             in Defendant landowners’ ownership.

             South Dakota uses the “before and after” formula to determine
             the just compensation to which the owner is entitled in a partial-
             taking case. Where only a portion of a property is condemned,
             the measure of just compensation includes both the value of the
             land actually taken and the value by which the residue, or


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             remaining parcel, has been diminished, if any, as a consequence
             of the partial taking.

             To determine just compensation, first you must determine the
             “before value,” which is the fair market value of the entire
             property as of June 12, 2012, immediately before, and unaffected
             by, the project. Then you must determine the “after value,”
             which is the fair market value of the residue, or remaining
             parcel, as of June 12, 2012, immediately after, and as affected
             by, the project. The difference between the “before value” and
             “after value” will be the just compensation to which the
             defendant property owner is entitled and will also be the
             amount of your verdict.

(Emphasis added.) The jury awarded Miller and Walsh $551,125 in just

compensation.

[¶22.]       The State appeals, asserting:

             1.     The circuit court erred when it ruled as a matter of law
                    that Lot 15 is part of the larger parcel for purposes of
                    valuation and compensation.
             2.     The circuit court abused its discretion when it prevented
                    the State’s expert from offering testimony relating to why
                    Lot 15 did not have unity of use with Lots 5, 6, 7, and 8.
             3.     The circuit court abused its discretion when it modified
                    the pattern jury instruction to instruct the jury to
                    determine the value of the property before and after “the
                    project” rather than “the taking.”
             4.     The circuit court abused its discretion when it allowed
                    testimony on how the diversion of traffic to and from Cliff
                    Avenue diminished the value of Miller and Walsh’s
                    property.

                             STANDARD OF REVIEW

[¶23.]       Our standard of review of evidentiary rulings is well settled: “This

Court reviews a decision to admit or deny evidence under the abuse of discretion

standard.” Ferebee v. Hobart, 2009 S.D. 102, ¶ 12, 776 N.W.2d 58, 62. “An abuse of

discretion refers to a discretion exercised to an end or purpose not justified by, and


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clearly against reason and evidence.” Mousseau v. Schwartz, 2008 S.D. 86, ¶ 10,

756 N.W.2d 345, 350 (quoting Kaiser v. Univ. Physicians Clinic, 2006 S.D. 95, ¶ 29,

724 N.W.2d 186, 194). As we recently explained in Magner v. Brinkman, we review

a circuit court’s decision to grant or deny a motion for a judgment as a matter of law

de novo. 2016 S.D. 50, ¶ 13, 883 N.W.2d 74, 80-81.

                                      ANALYSIS

[¶24.]       We combine the first two issues. We examine whether the circuit court

erred when it ruled as a matter of law that Lot 15 should be included with Lots 5

through 8 as a single unit. We also review whether the court abused its discretion

when it prevented the State’s expert from explaining why Lot 15 should not be

included with Lots 5 through 8 as a single unit to be valued by the jury.

[¶25.]       Prior to trial, the parties disputed whether Lot 15 should be valued

with Lots 5 through 8 for purposes of just compensation. Lot 15 is on the other side

of 63rd Street and is not connected to Lots 5, 6, 7, or 8. Lot 15 is adjacent to the

land upon which Kelly Inns would have built a hotel had the State not undertaken

its public improvement. The circuit court granted Miller and Walsh’s motion to

present evidence that Lot 15 should be included with Lots 5 through 8 as part of a

single unit. The court then, sua sponte, prevented the State’s expert from testifying

that Lot 15 was not part of Lots 5 through 8. At the close of the case, the court

granted Miller and Walsh’s motion for a judgment as a matter of law that Lot 15

was part of the larger parcel. The court instructed the jury that the parcel to be

valued included Lots 5 through 8 and Lot 15.




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[¶26.]       In State Highway Commission v. Fortune, “[w]e recognize[d] that

separate parcels or tracts of land held in one ownership will be considered as

contiguous and may constitute one parcel of land within the meaning of the

condemnation statutes if the parts are devoted to a single use.” 77 S.D. 302, 310, 91

N.W.2d 675, 681 (1958); State Highway Comm’n v. Bloom, 77 S.D. 452, 459,

93 N.W.2d 572, 576 (1958). “[O]rdinarily it is a practical question to be decided by

the jury[.]” Hurley v. State, 82 S.D. 156, 164, 143 N.W.2d 722, 727 (1966) (quoting

29A C.J.S. Eminent Domain § 140). “It becomes a question of law only where

reasonable minds cannot differ.” 4A Julius L. Sackman, Nichols on Eminent

Domain § 14B.04(1) (3d ed., rel. 110-12/2010). Factors to consider include (1) unity

of title, (2) contiguity of use, and (3) unity of use. Fortune, 77 S.D. at 311, 91

N.W.2d at 681 (citing City of Menlo Park v. Artino, 311 P.2d 135, 136 (Cal. Dist. Ct.

App. 1957)); Hurley, 82 S.D. at 164, 143 N.W.2d at 727. The presence of each unity

is not required, although “[t]he factor most often applied and controlling in

determining whether land is a single tract, is unity of use.” 4A Sackman, supra,

§ 14B.03(1); see Hurley, 82 S.D. at 164, 143 N.W.2d at 727. “There must be such a

connection or relation of adaptation, convenience, and actual and permanent use, as

to make the continued ownership of the parcel taken reasonably and substantially

necessary to the highest and best use of the remainder parcel.” 4A Sackman, supra,

§ 14B.03(1). We have said that the intent of the owner is relevant, as well as the

use and appearance of the land. Hurley, 82 S.D. at 165, 143 N.W.2d at 727 (quoting

4 Julius L. Sackman, Nichols on Eminent Domain § 14.31 (3d. ed. 1962)).




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[¶27.]       Miller and Walsh recognize that Lot 15 and Lots 5 through 8 are not

currently being commercially developed. They emphasize, however, that “unity of

use” need not be a current use. Miller and Walsh submit that the State does not

dispute that they intended to use Lots 2, 3, 4, 5, 6, 7, 8, 15, 16, 17, 18, and 19 for the

single use of creating a commercial assemblage. They further contend that they

“accomplished [this] commercial assemblage” when they secured an “anchor”

tenant—the Kelly Inn hotel. However, no portion of the Kelly Inn was going to be

constructed on Lot 15 or Lots 5 through 8. Nonetheless, Miller and Walsh submit

that Kelly Inns’ plan to construct a hotel was made in conjunction with their plan to

commercially develop the area, including Lots 15, 5, 6, 7, and 8. Therefore, in their

view, Lot 15 is part of the larger parcel and the hotel project was relevant to

establish the commercial viability of the Property.

[¶28.]       The State contends that Miller and Walsh merely “make the vague

assertion that these disparate commercial uses constituted a ‘commercial

assemblage[.]’” According to the State, Miller and Walsh’s “hopes to enjoy the

benefits of a nearby hotel project do not establish the single, integrated and

inseparable use required by our law.” In the State’s view, Miller and Walsh must

present specific evidence that the highest and best use of Lot 15 is in a commercial

development with Lots 5, 6, 7, and 8.

[¶29.]       From our review, the circuit court erred when it ruled as a matter of

law that Lot 15 is part of the larger parcel. Miller and Walsh did not establish that

Lot 15 would, in the reasonably near future, be put to its highest and best use in

combination with Lots 5, 6, 7, and 8 for the singular purpose of commercial


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development. Miller and Walsh also did not establish that Lot 15 is necessary to

the use and enjoyment of Lots 5, 6, 7, and 8 as an integrated economic unit. On the

contrary, their expert, Mueller, merely testified to the possibility:

             Q: What I am asking you is, Lot 15 didn’t have to be used as one
             project with 5, 6, 7, and 8, correct?
             A: It didn’t have to be, but it could.
             Q: It’s possible, but you don’t have to use it.
             A: It’s very possible.
             ....
             Q: Between 5, 6, 7, 8 and 15, there’s not interdependence
             between those where they have to be used for the same thing.
             A: They don’t have to be, but again it gets back to highest and
             best use and it might be - - and I think it’s very plausible - - that
             someone could.

Further, the engineer’s concept plans devote Lot 15 to an apartment building and

Lots 5, 6, 7, and 8 to office buildings. And Kelly Inns’ president testified that Kelly

Inns did not plan to purchase Lots 5, 6, 7, and 8 for its hotel project.

[¶30.]       “[T]he presence or absence of unity is such a significant element on

which value depends that it should be left to the determination of a trier of fact on a

weighing of all the pertinent evidence.” 4A Sackman, supra ¶ 26, § 14B.04(1).

Because judgment as a matter of law is only appropriate when “there is no legally

sufficient evidentiary basis for a reasonable jury to find for that party on that

issue,” the circuit court erred when it granted Miller and Walsh’s motion for

judgment as a matter of law. See Huether v. Mihm Transp. Co., 2014 S.D. 93, ¶ 29,

857 N.W.2d 854, 864 (quoting SDCL 15-6-50(a)(1)). The court also abused its

discretion when it prevented the State from presenting evidence to refute Miller




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and Walsh’s expert’s testimony that Lot 15 is part of the larger parcel. The State is

entitled to a new trial.

[¶31.]       The State next claims that the circuit court abused its discretion when

it instructed the jury to determine the value of Miller and Walsh’s property before

and after the project instead of before and after the taking. The State submits that

the court’s use of the word “project” in Instruction 7 failed to tie the damages to the

compensable taking. It argues that with this improper instruction the jury could

“award compensation for any aspect of the State’s project, including non-

compensable diversion of traffic.” The State further contends that the court’s

instruction conflicts with Instruction 12 because Instruction 12 informed the jury

that Miller and Walsh were not entitled to damages for the closing of the

intersection at Cliff Avenue and 63rd Street.

[¶32.]       While circuit courts have broad discretion in instructing the jury,

“their instructions must provide a full and correct statement of the law.” Walter v.

Fuks, 2012 S.D. 62, ¶ 16, 820 N.W.2d 761, 766. “[W]e construe jury instructions as

a whole to learn if they provided a full and correct statement of the law.” Behrens v.

Wedmore, 2005 S.D. 79, ¶ 37, 698 N.W.2d 555, 570 (quoting First Premier Bank v.

Kolcraft Enters., Inc., 2004 S.D. 92, ¶ 40, 686 N.W.2d 430, 448). Error occurs if, as a

whole, the instructions misled, conflicted, or caused confusion. Id. To constitute

reversible error, however, the party challenging the instruction must show that “in

all probability it produced some effect upon the verdict” and harmed that party’s

substantial rights. Id.




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[¶33.]       Our early eminent domain cases focus on the terms taken or taking in

accordance with the language of our state constitution. See, e.g., Schuler, 12 S.D.

460, 81 N.W. 890. By the time of State Highway Commission v. American Memorial

Parks, Inc., this Court said that when “property [is] taken for public use[,]” the

measure of damages is applied according to the highest and best use of the property

sold in an open market by a willing seller to a willing buyer. 82 S.D. 231, 236,

144 N.W.2d 25, 27-28 (1966) (emphasis added). We concluded that “[t]he market

value guide line has been uniformly adhered to by [this] [C]ourt.” Id. at 236,

144 N.W.2d at 28.

[¶34.]       The circuit court abused its discretion when it used the word “project”

instead of “taking” in Instruction 7. The instruction in all probability misled and

confused the jury. We recognize that the court correctly instructed the jury that

“the measure of just compensation includes both the value of the land actually

taken and the value by which the residue, or remaining parcel, has been

diminished, if any, as a consequence of the partial taking.” However, the use of the

term project instead of taking in Instruction 7 is an incorrect statement of the law.

The former encompasses a wider range of conduct than the latter. It is well settled

that the “[t]he measure of damages in condemnation cases involving a partial

taking is the difference between the fair market value of the unit before the taking

and the fair market value of what remains after the taking.” State Highway

Comm’n v. Hayes Estate, 82 S.D. 27, 34, 140 N.W.2d 680, 684 (1966) (emphasis

added) (citing City of Bristol v. Horter, 73 S.D. 398, 43 N.W.2d 543 (1950); Fortune,




                                          -17-
#27198

77 S.D. at 311, 91 N.W.2d at 681). We direct the court on remand to use the word

“taking” rather than “project.”

[¶35.]         We reverse and remand for a new trial consistent with this opinion.

[¶36.]         GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur on Issue One, Issue Two, and Issue Three.

[¶37.]         SEVERSON, Justice, writing for the Court on Issue Four.

[¶38.]         Compensation for loss of access is recoverable in a partial-taking action

if the circuit court determines that the State substantially impaired access to a

landowner’s property. 1 If the State substantially impairs a landowner’s access, the

landowner may present evidence of the impaired access in establishing the fair

market value of the property after the taking. Here, the circuit court did not make

the threshold determination whether the State substantially impaired Miller and

Walsh’s access; therefore, we remand to the circuit court to make a determination

whether access has been substantially impaired. 2

[¶39.]         Article VI, § 13, of our Constitution declares that “[p]rivate property

shall not be taken for public use, or damaged, without just compensation[.]” “South

Dakota’s constitution provides greater protection for its citizens than the United




1.       Miller and Walsh can allege substantial impairment of access either in this
         action or a separate action for inverse condemnation. The primary
         distinction is whether the initial action is initiated by the State or the
         landowner, but with appropriate pleading, both claims may be combined and
         considered in one action.

2.       Our cases have used materially impaired, unreasonably diminished or
         interfered with, and substantially impaired interchangeably. For consistency,
         we use substantially impaired.

                                           -18-
#27198

States Constitution because ‘our Constitution requires that the government

compensate a property owner not only when a taking has occurred, but also when

private property has been “damaged.”’” Rupert v. City of Rapid City, 2013 S.D. 13,

¶ 9, 827 N.W.2d 55, 60 (quoting Krier v. Dell Rapids Twp., 2006 S.D. 10, ¶ 21,

709 N.W.2d 841, 846). “The measure of damages in condemnation cases involving a

partial taking is the difference between the fair market value of the unit before the

taking and the fair market value of what remains after the taking.” Hayes Estate,

82 S.D. at 34, 140 N.W.2d at 684; see also City of Devils Lake v. Davis, 480 N.W.2d

720, 725 (N.D. 1992) (“An owner whose property has been taken by condemnation is

entitled to the fair market value of property actually taken and to severance or

consequential damages for property not taken.”). “[W]here no part of an owner’s

land is taken but because of the taking and use of other property so located as to

cause damage to an owner’s land, such damage is compensable if the consequential

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

whole.” Bloom, 77 S.D. at 461, 93 N.W.2d at 577.

[¶40.]       In this case, the State took a small triangular piece of property to

complete its public improvement, and Miller and Walsh did not show that the

taking itself impacted their access in any way. Instead, the circuit court allowed

Miller and Walsh to introduce evidence of damage to their access caused by the

public improvement as a whole, namely the impairment caused by the closure of the

Intersection. Miller and Walsh’s property abuts 63rd Street, not Cliff Avenue.

Miller and Walsh argue that under Schuler they should be compensated for loss

resulting from the Intersection’s closure—even if the closure did not substantially


                                         -19-
#27198

impair their access—because the State coincidentally appropriated a small tract of

unrelated land.

[¶41.]       To be compensable, a landowner’s damage must involve damage to a

property interest. The Supreme Court of California has explained that “[c]ourts

throughout the country are in substantial agreement” that the measure of

compensation due is the diminution in the fair market value of the property. Rose

v. State, 123 P.2d 505, 519 (Cal. 1942). But “there is a wide variance in the manner

of establishing the amount of damage.” Id. The Rose court examined cases

involving partial takings throughout the country and explained:

             Where there is a taking of private property, . . . the damage to
             the remainder is nearly always attributed to that taking. Thus,
             courts of [some] states have frequently said that the amount of
             damage, that is, the depreciation in value of the remainder, may
             be established by testimony relating to any factor, even though
             noncompensable in itself, which would make the property less
             desirable in the eyes of a prospective purchaser. Such factors do
             not constitute separate elements of damage for the purpose of
             recovery but are admitted solely for the purpose of establishing
             the depreciation in market value.

Id. at 519-20 (citations omitted). The Rose court continued, explaining that unlike

some other states, California does not allow noncompensable factors to be included

in damages to the remainder.

             In . . . California, where the recovery of damages depends upon
             the infringement of some right which the owner of land
             possesses in connection with his property, decisions have clearly
             indicated that, although the measure of damages is generally
             the diminution in market value, the evidence relied upon to
             establish such diminution must be based upon the depreciation
             flowing from the actionable injury which is the basis for the
             right to recover damages. Thus, in People v. Gianni, 130 Cal.
             App. 584, 20 P.2d 87, a small portion of land was taken for
             public highway purposes. It was contended on behalf of the
             landowner that because a small portion of land had been taken

                                        -20-
#27198

              and because he was entitled to recover for that injury, the
              damages to his remaining land should be based upon the total
              depreciation in the value of his remaining property even though
              that depreciation was caused primarily by an admittedly
              noncompensable element of damage, that is, diversion of traffic.
              The court said, however, that while diminution in market value
              was ordinarily the test of damage to real property, the damages
              must be limited to those which accrue by reason of the legal
              injury for which compensation was due . . . .
              A similar conclusion must also be reached where damage alone
              is involved. Many courts have indicated that the diminution of
              value in such cases cannot be based upon elements of damage
              for which the landowner is not entitled to recover.

Id. at 520-21.

[¶42.]        Access is a property interest. In regard to access, we have explained

that an abutting landowner has a right of ingress and egress “that pertains, not

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

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

those highways in which he has no special rights.” Hyde v. Minn., Dak. & Pac. Ry.

Co., 29 S.D. 220, 238-39, 136 N.W. 92, 99 (1912). However, “the right of ingress and

egress . . . [is] subject to reasonable regulations in the public interest and for the

promotion of public convenience and necessity.” Darnall v. State, 79 S.D. 59, 68,

108 N.W.2d 201, 205-06 (1961). “Where there is no physical taking and the owner’s

access to the highway on which he abuts is not unreasonably diminished or

interfered with, his loss is due to diversion of traffic, a lawful exercise of the police

power and there can be no recovery.” Id. at 70, 108 N.W.2d at 207 (emphasis

added).

[¶43.]        Initially, in any takings case, the determination whether a property

interest was taken or damaged for public use is a question of law for the court.


                                           -21-
#27198

Thus, before a landowner can present evidence of damage to the landowner’s access,

the circuit court must make a legal determination whether the State substantially

impaired the landowner’s access, thereby taking or damaging a property interest.

See State ex rel. Dep’t of Transp. v. Henrikson, 1996 S.D. 62, ¶ 9, 548 N.W.2d 806,

809 (“The right of access cannot be taken for public use or [substantially] impaired

without just compensation.” (emphasis added)). Substantial impairment of access is

not the same as diversion of traffic or mere circuity of travel. 3 The difference is a

matter of degree and depends on the fact pattern in each case. 4 Then, if the court



3.           Courts uniformly agree that a reduction in value resulting from
             ‘diversion of traffic’ is noncompensable, as is ‘mere circuity of travel.’
             Although used interchangeably, these catch-phrases refer to separate
             and distinct legal concepts.
             ‘Diversion of traffic’ implies a reduction in the volume of traffic
             passing adjacent to the property, and concomitant loss of
             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. 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.
             Because the inquiry in every case is essentially fact-based, there
             are no hard and fast rules.
      8A Patrick J. Rohan & Melvin A. Reskin, Nichols on Eminent Domain
      § G16.03[2][a] (3d ed., rel. 109-5/2013).

4.    When determining whether a substantial impairment exists, the court will
      necessarily consider the government’s exercise of police power. The
      Minnesota Supreme Court has explained:
             All courts seem to agree that [if] the regulation or restriction
             falls within the state’s ‘police power,’ no compensable loss has
                                                                    (continued . . .)
                                           -22-
#27198

decides that the State substantially impaired access, a landowner would be

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

value of their property after the taking. 5 And the jury would consider the


__________________
(. . . continued)
               occurred. Included in this category are the establishment of one-
               way streets and lanes of traffic; median strips prohibiting or
               limiting crossovers from one lane of traffic to another;
               restrictions on U-turns, left and right turns, and parking; and
               regulations governing the weight, size, and speed of vehicles.
               No compensable damages are sustained by such restrictions and
               regulations which govern all motorists, including abutting
               property owners, once they are on the traveled portion of the
               thoroughfare.
             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. The prohibiting or limiting of access
             to a highway may well be an exercise of police power in the
             sense that it is designed to promote traffic safety, but at the
             same time it may cause compensable injury to an abutting
             owner.
      Hendrickson v. State, 127 N.W.2d 165, 170 (Minn. 1964).
      Accordingly, the fact that the government acted under its police power does
      not always prevent compensation. “The distinction is not whether [the
      conduct at issue] is a valid exercise of police power but whether or not the
      property itself is taken or damaged.” Hurley, 82 S.D. at 162, 143 N.W.2d
      at 725.

5.    In Henrikson, we considered a loss-of-access claim. The State condemned
      5.29 acres of land to construct an interchange at the intersection of Interstate
      229 and Louise Avenue in Sioux Falls. The State also implemented traffic
      controls on an existing highway as part of its larger construction project. The
      State installed a median on Louise Avenue, changing the access route to the
      landowners’ remaining property by preventing direct access from southbound
      traffic. Henrikson, 1996 S.D. 62, ¶ 4, 548 N.W.2d at 808. The landowner
      specifically testified about her loss resulting from the change in access caused
      by the median. Id. ¶ 12, 548 N.W.2d at 809. We reversed because that
      evidence resulted in a jury award that “included improper damages for the
      median, which are not compensable under Darnall and Hurley[.]” Id. ¶ 21,
                                                                   (continued . . .)
                                          -23-
#27198

reasonableness of the remaining or alternate access when calculating just

compensation due based upon “the difference between the fair market value of the

unit before the taking and the fair market value of what remains after the taking[.]”

Hayes Estate, 82 S.D. at 34, 140 N.W.2d at 684; see also 29A C.J.S. Eminent Domain

§ 440, Westlaw (database updated December 2016) (“When it is found that an

impairment of the landowner’s right of access to his or her property has occurred, it

is for the jury to determine the extent of the impairment, and the extent of the

landowner’s damage as a result of the loss, or impairment, of the right of access to

the property.”).

[¶44.]       The determination whether a substantial impairment occurred

requires a court to consider the unique fact pattern in each case. For example, the

court may consider circumstances such as the nature of the property involved, the

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

(rural or urban). On this point, the Texas Supreme Court explained that access

rights may be substantially impaired “even though normal access remain[s]



__________________
(. . . continued)
         548 N.W. at 811. However, in the course of discussing the rules applicable in
         such a case, we inconsistently stated: “Landowners may show the reality of
         their limited access situation, which includes the restrictions from the
         median.” Id. ¶ 15, 548 N.W.2d at 810 (citing Hurley, 82 S.D. at 160,
         143 N.W.2d at 724; Darnall, 79 S.D. at 70, 108 N.W.2d at 207). Because both
         this statement and our holding were based on Darnall and Hurley, and
         because those cases permit compensation only for changes in access that
         amount to substantial impairment of access, Henrikson must be read in
         accordance with our decision today. Therefore, as stated throughout this
         opinion, a landowner may show a jury the reality of his or her limited-access
         situation only if the court first determines the change in access at issue
         amounts to a substantial impairment of access caused by the State’s taking.

                                         -24-
#27198

reasonably available . . . [where] access for which the property was specifically

intended [has been] rendered . . . deficient.” State v. Dawmar Partners, Ltd.,

267 S.W.3d 875, 879 (Tex. 2008) (citing City of Waco v. Texland Corp., 446 S.W.2d 1,

4 (Tex. 1969)). 6 In making the legal determination whether there has been a

taking, the court must distinguish between a lawful exercise of police power and a

taking or damaging of a property interest because of substantial impairment of

access. This is because “lawful exercise[s] of police power” are not always

compensable even though those exercises may adversely impact traffic flow and

established businesses. See Darnall, 79 S.D. at 70, 108 N.W.2d at 207.

[¶45.]         Today we clarify that before a landowner may present evidence of and

recover for loss resulting from a change in access, the court must first determine

that such change amounts to a substantial impairment of access—even when the

State coincidentally appropriates some land. If the change in access amounts to

substantial impairment and is caused by the physical taking of a landowner’s

property, the landowner is entitled to compensation for the substantial impairment

of access as an element of severance damages. If the change in access amounts to

substantial impairment and is not caused by the State’s actual taking of the



6.       In Texland, the land for which access was impaired was zoned for heavy
         industrial uses in a manufacturing and warehouse district. The City
         constructed a viaduct for traffic over the street that abutted the property.
         The “piers” used to support the viaduct had only sixty feet of clearance
         between them, which, according to a witness, made it “most difficult, if not
         impossible . . . to maneuver a truck that would normally be in use, reasonably
         several times a day . . . to where [the] trucks would have adequate means and
         methods of getting in under these pilasters and columns[.]” Texland,
         446 S.W.2d at 4. Another witness testified that “it’s almost impractical to get
         to.” Id.

                                           -25-
#27198

landowner’s property, then the landowner must demonstrate that he or she meets

the requirements of an inverse-condemnation claimant: the landowner must also

prove that the injury is peculiar to the landowner’s property and not of a kind

suffered by the public as a whole. In either case, the court’s determination that the

change in access amounts to a substantial impairment of access is a prerequisite to

obtaining compensation for the change in access. To the extent that Schuler holds

otherwise, it is overruled. Our approach today ensures that similarly situated

landowners (such as neighbors) are treated similarly when they encounter a change

in access. Any landowner may assert that access has been impaired; however, the

procedure of the cases may differ.

[¶46.]       In this case, because the circuit court applied Schuler, it did not

determine whether the Intersection’s closure substantially impaired Miller and

Walsh’s right to access their property. Additionally, the court did not determine

whether such substantial impairment would be peculiar to Miller and Walsh’s land

and not of a kind suffered by the public as a whole. The court must answer both of

these questions before submitting the action to the jury to determine the amount of

compensation to be paid. See SDCL 31-19-4 (“The only issue that shall be tried by

the jury . . . shall be the amount of compensation to be paid for the property taken

or damaged.”); Rupert, 2013 S.D. 13, ¶ 10, 827 N.W.2d at 61 (limiting compensation

to injury peculiar to the land); Hurley, 82 S.D. at 164, 143 N.W.2d at 726

(permitting compensation for the substantial impairment of access). If the court

determines a property interest has been taken or damaged due to substantially

impaired access, then, in determining compensation, “the landowner is entitled to


                                         -26-
#27198

have the jury informed as to all those facts which legitimately bear upon the market

value of the land before and after the taking and those factors which would

ordinarily influence a prospective purchaser in negotiating for the property.”

Rupert, 2013 S.D. 13, ¶ 26, 827 N.W.2d at 66 (quoting Hayes Estate, 82 S.D. at 34,

140 N.W.2d at 684).

[¶47.]       We remand to the circuit court to determine whether Miller and

Walsh’s access has been substantially impaired. In this case, no evidence has

shown that an impairment of access resulted from the partial taking. Thus, if a

substantial impairment exists, the court must also determine if the impairment of

access is peculiar to Miller and Walsh and not of a kind suffered by the public as a

whole. If so, Miller and Walsh may present evidence of access damages as it relates

to the fair market value of the property.

[¶48.]       GILBERTSON, Chief Justice, and WILBUR and KERN, Justices,

concur.

[¶49.]       ZINTER, Justice, concurs specially.



[¶50.]       ZINTER, Justice (concurring specially).

[¶51.]       I join the majority opinion on Issue Four in its entirety. I write only to

emphasize that today’s Court correctly overrules Schuler. See supra ¶ 45. Schuler’s

measure of damages was based on a unique but now-repealed statute, and Schuler

is not in accord with the almost unanimous view of courts today.

[¶52.]       Miller and Walsh argue that under Schuler, they should be

compensated for loss resulting from the Intersection’s closure—even if the closure


                                            -27-
#27198

did not substantially impair their access—because the State coincidentally

appropriated a small tract of unrelated land. In Schuler, the State condemned a

two-acre strip of land on the western border of Schuler’s property in order to build a

new public highway. A number of the buildings on Schuler’s property were situated

on the property’s eastern border, where the property abutted an existing public

road. The jury awarded Schuler the value of the two acres taken on the western

border ($20) and ten times that amount for “the damage to the sale of land”

resulting from “diversion of [traffic]” ($200). 7 Id. at 464, 81 N.W. at 891-92. In

affirming, the Court held that “[w]hile the damages for the diversion of [traffic]

itself might not be recoverable in this action, the diversion of [traffic], together with

all the other facts and circumstances proven on the trial connected with that

diversion, might lessen the value of the property to the amount specified[.]” Id.

at 465, 81 N.W. at 892. Thus, although the Court recognized that the loss resulting

from diversion of traffic was not directly compensable under Article VI, § 13, it

nevertheless upheld a jury verdict that included such loss in the posttaking market

value of the remaining property.




7.    In Schuler, the Court used the phrase diversion of travel instead of diversion
      of traffic. Although the phrase diversion of travel was in use at the time
      Schuler was decided, the continued use of that phrase is a conflation of the
      modern phrases diversion of traffic and circuity of travel. See supra ¶ 43 n.3
      (discussing the difference between these two phrases). Because Schuler’s
      existing access was not changed in any way—if anything, access to her
      property was enhanced by the construction of an additional abutting
      highway—Schuler cannot be read as a circuity-of-travel case. Therefore, the
      modern phrase diversion of traffic is appropriate here.


                                          -28-
#27198

[¶53.]         Miller and Walsh’s reliance on Schuler is misplaced because the

measure of compensation approved in Schuler was based on an inapplicable,

unique, statutory measure of damages that was subsequently repealed. At the time

Schuler was decided, the Compiled Laws of the Territory of Dakota were largely

still in effect. 8 Under the Compiled Laws, Political Code § 1302 entitled a

landowner to compensation from a township for any “damages sustained by reason

of laying out, altering or discontinuing any road” on land belonging to the

landowner. (Emphasis added.) Such damages included “the advantages and

benefits the new road or alteration of an old one will confer on the claimant for the

same, as well as the disadvantages.” Id. (emphasis added).

[¶54.]         Although the Court did not explicitly cite § 1302 in Schuler, § 1302 was

central to that decision. By its express terms, § 1302 applied “in all cases of

assessing damages” for the laying out of any road. (Emphasis added.) In her brief

to the Court, Schuler quoted § 1302 and argued that it governed the case in

conjunction with Article VI. 9 Consistent with the statutory requirement and



8.       After South Dakota became a state in 1889, the Legislature adopted the
         Compiled Laws of the Territory of Dakota to the extent that such laws were
         “not repugnant to or inconsistent with” South Dakota’s newly adopted
         constitution. 1890 S.D. Sess. Laws ch. 105, § 1. South Dakota’s first
         comprehensive state code was not published until 1903.

9.       Schuler asserted:
               We will proceed to answer appellant’s objections in the order in
               which they are made, first calling the court’s attention to our
               constitution and statutes governing this case.
               Our constitution, Bill of Rights, section 13, provides: “Private
               property shall not be taken for public use or damaged without
               just compensation.”
                                                                    (continued . . .)
                                           -29-
#27198

Schuler’s argument, the Court used the language of § 1302 to justify the jury

verdict: “[B]y the expression ‘damages by diversion of travel[,]’ the jury clearly

intended to convey the idea that by the laying out of the new road, and making that

the highway for general travel, the plaintiffs would be damaged in the amount

stated.” Schuler, 12 S.D. at 465, 81 N.W. at 892 (emphasis added).

[¶55.]         Significantly, the Court quoted—and primarily relied on—§ 1302 again

in Schuler’s companion case Bockoven v. Board of Supervisors of Lincoln Township,

13 S.D. 317, 83 N.W. 335 (1900). Bockoven and Schuler involved neighboring

properties on the same highway-construction project. 10 In determining the

appropriate measure of compensation due, the Court explained: “Section 1302 of the

Compiled Laws require[d] a just award of damages . . . , and in making such

adjustment the advantages and benefits that the new road will confer . . ., as well as

the disadvantages that he will sustain, must be taken into consideration.”

Bockoven, 13 S.D. at 323, 83 N.W. at 337 (emphasis added). 11 The Court cited

__________________
(. . . continued)
               Section 1302, Compiled Laws, says: “The supervisors, in all
               cases of assessing damages, shall estimate the advantages and
               benefits the new road or alteration of an old one will confer on
               the claimant for the same, as well as the disadvantages.”
               And the same rule governs the jury in its determination.
               (Compiled Laws, section 1327).

10.      A review of the Schuler abstract of record reveals that Bockoven actually
         testified as a witness on Schuler’s behalf in her appeal before the circuit
         court. During his testimony, he also referred to his own pending appeal.

11.      As noted above, § 1302 explicitly entitled a landowner to compensation for
         any disadvantage sustained by the laying out of a road on land taken from
         the landowner. See supra ¶ 53.


                                           -30-
#27198

Schuler in the ensuing discussion regarding the appropriate measure of

compensation under § 1302 and invoked Article VI only to reject the circuit court’s

instruction to the jury that the landowner could not be compensated for possible

“injury from the back flow of water from the grade established[.]” Bockoven, 13 S.D.

at 323-28, 83 N.W. at 337-38.

[¶56.]        Considering § 1302’s requirement that it apply “in all cases of

assessing damages[,]” Schuler’s reliance on § 1302 in her argument to the Court, the

Court’s use of § 1302’s language in the Schuler decision, and the Court’s explicit

citation to § 1302 under the identical facts of Bockoven, there can be no doubt that

the measure of compensation approved in both Schuler and Bockoven was based

primarily on § 1302. However, § 1302 (allowing damages for any “disadvantages”

caused by the new road) did not survive the 1919 revision of South Dakota’s codified

laws. Current South Dakota law—unlike § 1302—does not permit compensation for

every disadvantage suffered by a landowner. In particular, while the diversion of

traffic or mere circuity of travel are no doubt disadvantageous, they are

nevertheless noncompensable under Article VI, § 13. This is the law in almost all

jurisdictions. Even in the case of a partial taking, virtually all courts exclude

evidence of loss resulting from the diversion of traffic or mere circuity of travel (i.e.,

an increase in circuity not amounting to a substantial impairment of access) in




                                           -31-
#27198

calculating just compensation. 12 So while Schuler and Bockoven were correctly

decided under a statutory remedy available at the time, those cases (and the cases



12.   See Triangle, Inc. v. State, 632 P.2d 965, 968 (Alaska 1981); State ex rel.
      Sullivan v. Carrow, 114 P.2d 896, 898 (Ariz. 1941); Hempstead Cty. v.
      Huddleston, 31 S.W.2d 300, 301 (Ark. 1930); People ex rel. Dep’t of Pub.
      Works v. Russell, 309 P.2d 10, 15-16 (Cal. 1957) (en banc); 489.137 Square
      Feet of Land v. State ex rel. Price, 259 A.2d 378, 380 (Del. 1969); Div. of
      Admin., State Dep’t of Transp. v. Capital Plaza, Inc., 397 So. 2d 682, 683-84
      (Fla. 1981); Cobb Cty. v. Princeton Assocs., 421 S.E.2d 102, 103 (Ga. Ct. App.
      1992); State, Idaho Transp. Bd. v. HI Boise, LLC, 282 P.3d 595, 600 (Idaho
      2012); Winnebago Cty. v. Rico Corp., 296 N.E.2d 867, 870-71 (Ill. App. Ct.
      1973); State v. Ensley, 164 N.E.2d 342, 345-47 (Ind. 1960); Nelson v. Iowa
      State Hwy. Comm’n, 115 N.W.2d 695, 696-97 (Iowa 1962); Hudson v. City of
      Shawnee, 790 P.2d 933, 936, 940-41 (Kan. 1990); Commonwealth, Dep’t of
      Highways v. Dowdy, 388 S.W.2d 593, 595 (Ky. Ct. App. 1965); State ex rel.
      Dep’t of Highways v. Hoyt, 272 So. 2d 768, 773 (La. Ct. App. 1972); LaCroix v.
      Commonwealth, 205 N.E.2d 228, 231-32 (Mass. 1965); Jacobson v. State ex
      rel. State Highway Comm’n, 244 A.2d 419, 421-22 (Me. 1968); In re Mich.
      State Highway Ctrl. No. 82195-D(1), 140 N.W.2d 500, 503 (Mich. 1966); Cty.
      of Anoka v. Blaine Bldg. Corp., 566 N.W.2d 331, 334 (Minn. 1997); Muse v.
      Miss. State Highway Comm’n, 103 So. 2d 839, 848 (Miss. 1958); State ex rel.
      State Highway Comm’n v. Meier, 388 S.W.2d 855, 857 (Mo. 1965) (en banc);
      State v. Hoblitt, 288 P. 181, 184 (Mont. 1930); Painter v. State Dep’t of Rds.,
      131 N.W.2d 587, 590-91 (Neb. 1964); State v. Shanahan, 389 A.2d 937, 939
      (N.H. 1978); State ex rel. Comm’r of Transp. v. Monmouth Hills, Inc.,
      266 A.2d 133, 136-37 (N.J. Super. Ct. App. Div. 1970), cited with approval in
      State ex rel. Comm’r of Transp. v. Weiswasser, 693 A.2d 864, 874 (N.J. 1997);
      Bd. of Cty. Comm’rs v. Slaughter, 158 P.2d 859, 863-64 (N.M. 1945); McHale
      v. State, 104 N.Y.S.2d 981, 982 (N.Y. App. Div. 1951) (per curiam), aff’d,
      107 N.E.2d 593, 594 (N.Y. 1952); Bd. of Transp. v. Terminal Warehouse
      Corp., 268 S.E.2d 180, 182-83 (N.C. 1980); Richley v. Jones, 310 N.E.2d 236,
      240 (Ohio 1974); Wolf v. Commonwealth, Dep’t of Highways, 220 A.2d 868,
      871-72 (Pa. 1966); Narciso v. State, 328 A.2d 107, 111-12 (R.I. 1974); State ex
      rel. Dep’t of Transp. v. Henrikson, 1996 S.D. 62, ¶ 21, 548 N.W.2d 806, 811;
      City of Memphis v. Hood, 345 S.W.2d 887, 890-91 (Tenn. 1961); State v.
      Schmidt, 867 S.W.2d 769, 770 (Tex. 1993); State Rd. Comm’n v. Utah Sugar
      Co., 448 P.2d 901, 902-03 (Utah 1968); State Highway Comm’r v. Howard,
      195 S.E.2d 880, 880 (Va. 1973) (per curiam); Ehrhart v. Agency of Transp.,
      904 A.2d 1200, 1205-06 (Vt. 2006); State v. Fox, 332 P.2d 943, 946 (Wash.
      1958); State Highway Comm’n v. Scrivner, 641 P.2d 735, 738-39 (Wyo. 1982);
      cf. State Dep’t of Highways, Div. of Highways v. Davis, 626 P.2d 661, 666-67
      (Colo. 1981) (en banc) (holding landowner’s loss resulting from advertising
                                                                    (continued . . .)
                                           -32-
#27198

that rely on Schuler) may no longer be relied on in determining the measure of

compensation appropriate under Article VI, § 13. As explained in the majority

opinion, Miller and Walsh are not entitled to compensation for loss resulting from

the Intersection’s closure unless the closure substantially impaired access to their

property. See supra ¶ 46-47.




__________________
(. . . continued)
         restrictions on landowner’s property noncompensable as an element of
         severance damages). But see Pike Cty. v. Whittington, 81 So. 2d 288, 290-92
         (Ala. 1955); S.C. State Highway Dep’t v. Wilson, 175 S.E.2d 391, 395 (S.C.
         1970).

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