#28377-a-JMK
2018 S.D. 24

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                   ****

WILLIAM E. COESTER and
JUDY A. COESTER,                           Petitioners and Appellants,

      v.

WAUBAY TOWNSHIP, an
organized township and political
subdivision of the State of
South Dakota, and THEODORE
WASILK a/k/a TED WASILK,
NEIL HOLSHER and TERRY
ZUBKE, each in their capacity as
Township supervisors,                      Respondents and Appellees.

                                   ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIFTH JUDICIAL CIRCUIT
                      DAY COUNTY, SOUTH DAKOTA
                                 ****
                    THE HONORABLE JON S. FLEMMER
                                 Judge

                                   ****

WILLIAM E. COESTER of
Coester Schwandt Law Office
Milbank, South Dakota                      Attorneys for petitioners
                                           and appellants.


JAY M. LEIBEL
Madison, South Dakota                      Attorneys for respondents
                                           and appellees.

                                   ****
                                           CONSIDERED ON BRIEFS
                                           ON JANUARY 8, 2018
                                           OPINION FILED 03/14/18
#28377

KERN, Justice

[¶1.]        William and Judy Coester (Petitioners) made numerous requests to

Waubay Township to maintain roads accessing their property. After the Township

refused each request to maintain the roads, Petitioners applied for a writ of

mandamus from the circuit court. The circuit court denied the writ, determining

that the Township had no duty to maintain the roads as they were not part of the

township road system. We affirm.

                          Facts and Procedural History

[¶2.]        Petitioners own property on the south shore of Enemy Swim Lake, in

Waubay Township (Township), Day County, South Dakota. South Bay Drive

bisects Petitioners’ property, and Snyder Drive runs adjacent to the southern

boundary. These two roads connect to Dinkle Drive, which in turn connects to BIA

Highway 500. The roads connecting to BIA Highway 500 have been dedicated to

public use and platted as such. However, the Township has never maintained or

removed snow from South Bay Drive, Snyder Drive, or Dinkle Drive, despite

numerous requests from Petitioners to do so.

[¶3.]        Petitioners, in an attempt to force the Township to maintain these

roads, sought a writ of mandamus from the circuit court. Petitioners admitted in

their January 2017 petition for a writ that the Township had never maintained the

roads. However, Petitioners claimed that the Township possessed the resources to

do so and that the Township had previously exercised jurisdiction over the roads.

In support of their claim, Petitioners requested that the circuit court take judicial




                                          -1-
#28377

notice of two easements, which the court received into evidence. The easements had

been granted by the Township and dated October 31, 1992, and October 24, 1995,

and provided the owners of various lots in Petitioners’ subdivision perpetual

easements for placing utilities and water lines under, over, in, or across the

roadways running between the owners’ lots.

[¶4.]         On February 1, 2017, the circuit court held a hearing on the petition

for a writ of mandamus. On June 30, 2017, the circuit court issued a detailed

memorandum decision denying the writ. According to the circuit court, the issue

was whether the roads in question were township roads under SDCL 31-13-1.

SDCL 31-13-1 provides in part that “[t]he board of township supervisors shall . . .

maintain all of the township roads within the township” (emphasis added), which

the court stated “clearly indicates that a ‘township road’ within the township is

something different than simply a road within the township[.]” While

acknowledging that SDCL 31-13-1 does not define township roads, the court

highlighted the statutory definition of a township road system. The court observed

that township road systems are defined in SDCL 31-13-1 as section line roads;

judicially declared roads; roads impliedly accepted by the township through

maintenance; and other roads designated as being on the township road system by a

board resolution. The court then concluded that the Legislature’s decision “to limit

the responsibility for . . . maintenance of roads . . . to all of the ‘township roads’

clearly indicate[ed] that the township has responsibility for . . . maintenance of only

those roads on the township road system.”




                                            -2-
#28377

[¶5.]        On August 2, 2017, the circuit court issued findings of fact and

conclusions of law as well as its judgment and order. In its findings of fact and

conclusions of law, which incorporated the memorandum decision, the court noted

that the Township had never signed or approved any plat containing the roads at

issue. Additionally, it found that the Township granted the easements simply “to

assist the landowners in obtaining utilities and water.” In its conclusions of law,

the court determined that the roads were “private roads dedicated to the public

pursuant to SDCL 11-3-12[.]”

[¶6.]        Petitioners appeal the order denying the petition for a writ of

mandamus, arguing the court erred by determining that the roads were private

roads and that the Township had no statutory duty to maintain the roads.

                               Analysis and Decision

[¶7.]        “This Court reviews the decision to grant or deny a writ of mandamus

under an abuse of discretion standard.” Krsnak v. S.D. Dep’t of Env’t & Nat. Res.,

2012 S.D. 89, ¶ 8, 824 N.W.2d 429, 433. An abuse of discretion is “a fundamental

error of judgment, a choice outside the reasonable range of permissible choices, a

decision . . . [that], on full consideration, is arbitrary or unreasonable.” Wald, Inc. v.

Stanley, 2005 S.D. 112, ¶ 8, 706 N.W.2d 626, 629. However, “statutory

interpretation and application are questions of law that we review de novo.”

Krsnak, 2012 S.D. 89, ¶ 8, 824 N.W.2d at 433. We discern legislative intent

primarily using the language of the statute, giving the Legislature’s words plain

meaning and effect within the context they are used. See Perdue, Inc. v. Rounds,

2010 S.D. 38, ¶ 9, 782 N.W.2d 375, 378.


                                           -3-
#28377

[¶8.]        SDCL 31-13-1 provides in part:

             The board of township supervisors shall construct, repair, and
             maintain all of the township roads within the township except
             for section lines designated as no maintenance section lines
             pursuant to § 31-13-1.4 and roads designated as no maintenance
             roads pursuant to § 31-13-1.6. The township road system
             consists of section line roads; judicially declared roads; roads
             impliedly accepted by the township through routine performance
             of certain maintenance activities, such as grading, graveling and
             snow removal, and accepting funds from the county pursuant to
             §§ 32-11-4.1 and 32-11-6 for a period of at least fifteen years;
             and any other roads designated by resolution of the board as
             being on the township road system.

(Emphasis added.) An aggrieved party may seek a writ of mandamus when a

township fails to maintain township roads. See Asper v. Nelson, 2017 S.D. 29, ¶ 12,

869 N.W.2d 665, 668. However, a petitioner “must have a clear legal right to have a

service performed by the party to whom he seeks to have the writ directed.” S.D.

Trucking Ass’n, Inc. v. S.D. Dep’t of Transp., 305 N.W.2d 682, 684 (S.D. 1981).

[¶9.]        The parties agree that the roads in question do not fall under the

Township’s township road system as defined in SDCL 31-13-1. However, they

dispute whether the roads must be part of the township road system to be

considered a township road. The statute does not define township road, and

Petitioners contend that the statute requires maintenance of any township road

regardless “whether they are on the township road system or not.”

[¶10.]       Petitioners cite Calhoon v. Sell, 71 F. Supp. 2d 990, 1003 (D.S.D. 1998),

for the proposition that a township must also maintain any highway within the

township. In Calhoon, the federal district court stated that “a highway within an

organized township which . . . is not part of the state trunk system, not part of a



                                          -4-
#28377

county highway system, and not a highway which the county has formally agreed to

maintain under the provisions of SDCL 31-12-28 to 31-12-40 must be maintained by

the board of township supervisors until the highway is abandoned or vacated as

provided by law.” Id. However, the district court’s decision in Calhoon relied on an

older version of SDCL 31-13-1, which provided: “It shall be the duty of the board of

township supervisors to arrange for the construction, repair, and maintenance of all

secondary roads within the township.” (Emphasis added.) In 2012, the Legislature

amended the statute by replacing the word “secondary” with “township” and by

listing the types of roads comprising the township road system. 2012 S.D. Sess.

Laws ch. 158, § 1. 1

[¶11.]         As the circuit court observed, the amended statute requires that a

township maintain “all . . . township roads within the township.” SDCL 31-13-1

(emphasis added). This language indicates that the Township possesses a narrower

duty than a duty to maintain all roads within the Township’s boundaries. Rather,

it must maintain only “township roads.” Id. (emphasis added). Thus, Petitioners’




1.       The statute previously read:
               The board of township supervisors shall construct, repair, and
               maintain all of the secondary roads within the township. The
               board shall, at its annual meeting, designate which secondary
               roads are full maintenance roads and which are minimum
               maintenance roads. The board of township supervisors shall
               publish any resolution designating a secondary road as
               minimum maintenance if such road is a school route. The
               designation shall be final, after a lapse of thirty days, unless
               appealed as provided in chapter 31-3.

                                           -5-
#28377

argument that SDCL 31-13-1 obligates the Township “to maintain all roads within

the township” fails. 2

[¶12.]         Petitioners also argue that these roads act as highways. Highways are

defined under SDCL 31-1-1 as “[e]very way or place of whatever nature open to the

public, as a matter of right, for purposes of vehicular travel. The term, highway,

does not include a roadway or driveway upon grounds owned by private persons[.]”

SDCL 31-1-5(3) further defines “township highways” as “secondary highways in

organized townships that are administered by a board of township supervisors[.]”

(Emphasis added.) However, Petitioners do not address whether “township

highways” are necessarily “township roads” for purposes of SDCL 31-13-1.

Petitioners also admit that the Township never maintained the roads. Indeed,

Petitioners offer no evidence that the Township “administered” the roads aside from

granting the utility and water easements.

[¶13.]         Further, the Township argues that it never accepted the roads when

they were dedicated to the public. In Selway Homeowners Ass’n v. Cummings,

2003 S.D. 11, ¶ 20, 657 N.W.2d 307, 313, we outlined the prerequisites for

dedication and acceptance of a public highway by a public entity. We stated that

there must be “an unconditional offer by the grantor to create a public highway and

there must be an unconditional acceptance by the appropriate public entity that it


2.       Petitioners also cite Willoughby v. Grim, 1998 S.D. 68, ¶ 8, 581 N.W.2d 165,
         168, quoting, “The right of travelers to accessible township roads surpasses
         mere privilege. By statute, the board of supervisors must repair and
         maintain all township or secondary highways[.]” (Emphasis added.)

         However, Willoughby cited the prior version of SDCL 31-13-1 and SDCL 31-1-
         5(3), the latter of which defines township highways specifically.
                                           -6-
#28377

becomes one.” Id.; accord Niemi v. Fredlund Twp., 2015 S.D. 62, ¶ 32, 867 N.W.2d

725, 733. Here, the circuit court found that the Township neither signed nor

approved a plat dedicating the roads to the public. Additionally, the court stated in

its memorandum decision that “[t]here was no evidence presented that the roads

had been impliedly accepted by the township.”

[¶14.]       From our review of the record, it does not appear the Township

accepted responsibility over the roads. Theodore Wasilk, township supervisor,

submitted an affidavit concurring with a statement in Petitioners’ application that

the “roads have been used for more than 50 years by the public generally, and were

accepted, controlled, but not maintained as a public highway in Waubay Township,

Day County, South Dakota, since initial platting[.]” (Emphasis added.) Yet Wasilk

did not concede that the roads were accepted or controlled as public highways by the

Township, and there is no evidence any other entity has maintained the roads as

public highways. Further, Wasilk averred that the Township had “never accepted

these roads into the township road system” or had ever performed “any repair or

maintenance on those roads.”

[¶15.]       Petitioners have not met their burden of proving that the Township is

required to maintain the roads under SDCL 31-13-1. Therefore, the circuit court

did not abuse its discretion in denying the petition for writ of mandamus.

[¶16.]       Affirmed.

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

JENSEN, Justices, concur.




                                         -7-
