Mdu v. Parkshill Farms , 2017 SD 88 ( 2017 )

#28174-aff in pt & rev in pt-DG
2017 S.D. 88IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
MONTANA-DAKOTA UTILITIES CO.
and OTTER TAIL POWER COMPANY, Plaintiffs and Appellees,
v.
PARKSHILL FARMS, LLC,
REUBEN PARKS, VERA PARKS,
and ORDEAN PARKS, Defendants and Appellants,
and
WEB WATER DEVELOPMENT
ASSOCIATION, INC., KERMIT
PARKS, and ESTATE OF ORION
E. PARKS, Defendants.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
DAY COUNTY, SOUTH DAKOTA
****
THE HONORABLE TONY L. PORTRA
Judge
****
JASON R. SUTTON
THOMAS J. WELK of
Boyce Law Firm
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellees.
N. BOB PESALL
Flandreau, South Dakota Attorney for defendants
and appellants.
****
ARGUED OCTOBER 2, 2017
OPINION FILED 12/13/17
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GILBERTSON, Chief Justice
[¶1.] Through formal condemnation proceedings, Montana-Dakota Utilities
Co. and Otter Tail Power Co. (collectively, “Utilities”) obtained easements to
construct a powerline across four parcels belonging to Parkshill Farms LLC and
Reuben, Vera, and Ordean Parks.1 The Parkses appeal, arguing that the easements
were not taken for a public use and that they are unnecessary. The Parkses also
argue the circuit court abused its discretion when it rejected a jury instruction
requested by the Parkses. We affirm in part, reverse in part, and remand.
Facts and Procedural History
[¶2.] Montana-Dakota Utilities Co. is a public utility that provides
electricity to about 135,000 customers in South Dakota, Montana, North Dakota,
and Wyoming. Otter Tail Power Co. is a public utility that provides electricity to
over 130,000 customers in South Dakota, Minnesota, and North Dakota. These
utility companies are members of the Midwest Independent Service Operator
(“MISO”), which is a nonprofit organization created to regulate the planning,
construction, and management of electricity transmission in the upper Midwest,
including South Dakota. MISO, in turn, is subject to regulation and control by the
Federal Energy Regulatory Commission (“FERC”). Under FERC guidelines, public
utilities that participate in the interstate electricity market must provide open
access to their transmission lines under nondiscriminatory rates and conditions to
anyone participating in the market.
1. The Utilities’ petition also named Web Water Development Association, Inc.,
Kermit Parks, and the Estate of Orion E. Parks as additional defendants.
These additional defendants are not parties to this appeal.
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[¶3.] In order to facilitate electricity generation and to promote reliable
service in its geographic area, MISO continually evaluates the needs of its
transmission system and considers projects to improve that system. At issue in this
case, MISO determined a high-voltage (345 kilovolt) transmission line should be
constructed between a substation located south of Big Stone City, South Dakota,
and another substation located near Ellendale, North Dakota. The line is 163 miles
long, with 10 miles of line located in North Dakota and the rest in South Dakota.
This transmission line is commonly referred to as the “Big Stone South to
Ellendale” project—or “BSSE.”2 After MISO’s board of directors approved the
project, the Utilities were required to construct the transmission line. After months
of consideration,3 the Utilities picked a route and began negotiating with the
affected property owners. The Utilities successfully negotiated voluntary easements
over 91% of the parcels along the BSSE’s proposed route. The Parkses were among
a few who refused settlement.
[¶4.] Unable to secure voluntary easements from the Parkses, the Utilities
filed a condemnation petition on October 28, 2015. In the petition, the Utilities
sought permanent, 150-foot-wide easements “for the purpose of constructing,
operating, [and] maintaining an overhead electric transmission line up to but not
2. The BSSE was one of 17 projects that MISO deemed necessary in its
geographic area.
3. The Utilities began the process of selecting a route in Fall 2012. After
15 months of study and dialogue with potentially affected property owners,
the Utilities selected a tentative route. The Utilities then considered and
analyzed approximately 60 requests to change the selected route.
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exceeding 345kV over, under and across” the Parkses’ properties. The proposed
easements included the right to
construct, operate, maintain, use, upgrade, build, rebuild,
relocate, or remove an electric line facility with one or more
circuits, with all towers, structures, poles, foundations,
crossarms, cables, wires, anchors, guys, supports, counterpoises,
fixtures and equipment related to said electric line facility,
together with communication equipment relating to the
operation of such electric line facility . . . through, over, under
and across [the Parkses’ property.]
The circuit court held a hearing on April 5, 2016, to determine the Utilities’ right to
take the easements. The Parkses challenged both the scope and the duration of the
proposed easements. The court approved the petition, and on January 25 and 26,
2017, the case proceeded to a jury trial to determine the amount of compensation
due for the easements.
[¶5.] At trial, the Parkses’ real-estate appraiser testified the market value of
their properties would diminish by $840,000 as a result of the proposed easements.
The Utilities’ real-estate appraiser valued the easements at only $73,097. Although
the easements included the right to construct a number of supporting structures
and features, see supra ¶ 4, the Utilities’ witnesses testified that it was extremely
unlikely the Utilities would exercise these additional rights. In response, the
Parkses requested a jury instruction that would have required the jury to “consider
all damages, present and prospective, that will accrue reasonably from the taking of
the easement, and in so doing must consider the most injurious use of the property
reasonably possible under the easement.” The court rejected the requested
instruction. The jury ultimately awarded $95,046 to the Parkses and the other
landowners.
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[¶6.] The Parkses appeal, raising the following issues:
1. Whether the easements were taken for a public use.
2. Whether the easements were necessary.
3. Whether the circuit court abused its discretion by refusing
the Parkses’ requested jury instruction.
Analysis and Decision
[¶7.] The power to take privately owned property and put it to public use is
“an inherent right vested in a sovereign state as a necessary attribute thereof.”
Darnall v. State, 79 S.D. 59, 63, 108 N.W.2d 201, 203 (1961). In South Dakota, the
Legislature has delegated this power of eminent domain to “[a]ny corporation
organized under [SDCL] chapter 49-33[,]” SDCL 49-34-4, which includes electric
utilities. When such a public utility seeks to invoke its delegated power, it must
show:
(1) [t]hat [it] is within the class to whom the power has been
delegated[,] (2) [t]hat all conditions precedent have been
complied with[,] (3) [t]hat the purpose for which the property is
to be taken is one of the purposes enumerated in the statute[,]
(4) [t]hat the property is to be taken for a public use[, and]
(5) [t]hat the particular property sought to be taken is necessary
to the accomplishment of the public purpose intended.
Ill. Cent. R.R. Co. v. E. Sioux Falls Quarry Co., 33 S.D. 63, 71, 144 N.W. 724, 726
(1913) (emphasis omitted). The Parkses do not dispute the Utilities have met their
burden in regard to the first three elements. Instead, this case involves the public-
use and necessity requirements.
[¶8.] 1. Whether the easements were taken for a public use.
[¶9.] As an initial matter, the parties disagree on the applicable standard of
review. The Parkses request de novo review, contending this issue involves
constitutional and statutory interpretation. The Utilities respond that the dispute
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in this issue is largely a factual matter that should be reviewed under the clearly
erroneous standard. Both parties are correct to some extent. Determining whether
the nature of a proposed use is public or private “is ultimately a judicial question.”
Id. at 77, 144 N.W. at 728 (quoting Hairston v. Danville & W. Ry. Co., 208 U.S. 598,
606, 28 S. Ct. 331, 334, 52 L. Ed. 637 (1908)). Thus, the ultimate issue in this case
is a question of law. Locklin v. City of Lafayette, 867 P.2d 724, 751 (Cal. 1994)
(en banc). Questions of law are reviewed de novo. Coffey v. Coffey, 2016 S.D. 96,
¶ 7, 888 N.W.2d 805, 808. However, the factual findings on which those conclusions
are premised are reviewed under the clearly erroneous standard. Id.[¶10.] The Parkses argue their property was not taken for a public use. Our
cases have long subscribed to the view that the term public use, as used in
Article VI, simply means “use by the public[.]” Ill. Cent. R.R., 33 S.D. at 78,
144 N.W. at 728. “[T]he matter that is controlling . . . is not the necessity of the use,
not even the fact of use, but the right to use.” Id. at 78, 144 N.W. at 729. The
Parkses contend “[t]he public does not have the right to use the easements, or the
transmission line, on the same terms as the Utilities who would establish it.”
According to the Parkses, the Utilities “would take the easements in fee simple” and
could “close it up and prohibit all or any part of the public from its use” or “sell the
easements to third parties who could do the same.” In essence, the Parkses argue
that in order to satisfy the public-use clause, the general public must be entitled to
use the condemned property in the same manner as the condemning authority.
[¶11.] The Parkses’ view of the public-use requirement is untenable. The
rights acquired by a condemning authority are often by necessity broader than the
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right of use acquired by the general public. For example, when the State or a
railroad condemns a right-of-way across privately owned land for the purpose of
constructing and operating a highway or track, the condemning authority acquires
the rights to construct and operate the highway or track (as well as necessary
incidental powers), whereas the general public acquires only the right to use the
highway or track so constructed. It would be physically impossible to ensure that
every member of the public had the right to use the condemned right-of-way “on the
same terms” as the condemning authority—i.e., to construct and operate his or her
own highway or track. Under the Parkses’ reading of the public-use clause, then, it
would essentially be impossible for the State or a railroad to condemn a right-of-way
to construct and operate a highway or track “for public use.”
[¶12.] In contrast to the Parkses’ argument, determining whether the nature
of a proposed use is public requires a comparison of the rights acquired by members
of the public against other members of the public. In Illinois Central Railroad, for
example, the railroad condemned a right-of-way to construct a spur track for the
benefit of a single member of the public, a private stone quarry. Id. at 71, 144 N.W.
at 725. The property owner challenged the taking, arguing that the general public
would not use the spur track and that the right-of-way was taken for the private
use of the quarry. Id. at 71-72, 144 N.W. at 725-26. This Court held the taking was
for a public use because even if the general public did not utilize the spur track, “no
person [could] be denied an equal right [with the individual for whom the spur was
constructed] to the use of such spur.” Id. at 81, 144 N.W. at 729-30. Notably, this
Court focused on whether the public generally acquired a right to use the track; the
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Court did not focus on the incidental powers acquired by the condemning authority
to construct the track.
[¶13.] The same analysis is equally applicable in the present case. In the
case of a public-service corporation like a railroad or electric utility,
whether a use is public . . . may be determined by the fact that,
where the use is public, a trust attaches to the subject
condemned for the benefit of the public, of the enjoyment of
which it cannot be deprived by the company without a
reasonable excuse, and by the further fact that the state retains
the power to regulate and control the franchises of the company,
and to prescribe the amount of charges and tolls which it shall
be lawful for the company to exact for the [public service
provided].
Id. at 80, 144 N.W. at 729 (quoting Zircle v. S. Ry. Co., 45 S.E. 802, 803 (Va. 1903)).
In other words, “the public must have a right to make use of the service offered at
reasonable rates and without discrimination. Serving the public cannot be the
arbitrary choice or whim of the condemning party.” 2A Julius L. Sackman, Nichols
on Eminent Domain § 7.05[2][b] (3d ed., rel. 90-6/2008) (emphasis added). “As long
as every member of the public has an equal right to use the power produced by the
facility, it does not matter how many use the power or that not every person
benefits from the facility’s use.” Id. § 7.05[4][d].
[¶14.] In this case, the nature of the proposed use of the easements is public.
The circuit court found that the Utilities are public utilities. As such, they are
required by law to “furnish adequate, efficient, and reasonable service.” SDCL 49-
34A-2. The Utilities may not, “except in cases of emergency, fail to provide,
discontinue, reduce or impair service to a community, or a part of a community,
except for nonpayment of account or violation of rules and regulations, unless
permission has been first obtained from the Public Utilities Commission to do so.”
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SDCL 49-34A-2.1. And as noted above, federal regulations require the Utilities to
provide open access to their transmission lines under nondiscriminatory rates to
others in the market. Because the Utilities are required to provide
nondiscriminatory, government-regulated service to the general public, the
easements at issue were taken for public use. See Ill. Central R.R., 33 S.D. at 80,
144 N.W. at 729; Barham v. S. Cal. Edison Co., 88 Cal. Rptr. 2d 424, 430 (Cal. Ct.
App. 1999) (“[G]enerally, condemning private property for the transmission of
electrical power is a public use . . . .”); Race v. Iowa Elec. Light & Power Co.,
134 N.W.2d 335, 337 (Iowa 1965); Mont. Power Co. v. Bokma, 457 P.2d 769, 773-74
(Mont. 1969); Grice v. Vt. Elec. Power Co., 956 A.2d 561, 571 (Vt. 2008).4
[¶15.] 2. Whether the easements were necessary.
[¶16.] The Parkses also argue that because the easements obtained in North
Dakota are limited to 99 years in duration, it was not necessary for the Utilities to
take perpetual easements in South Dakota. They also contend the scope of the
easements is broader than the Utilities’ intended use. Again, the parties disagree
on the applicable standard of review. The Parkses contend this issue presents a
question of law reviewable de novo. The Utilities contend this Court’s standard of
review is limited by SDCL 21-35-10.1, which states, in part: “The finding of
4. In their public-use analysis, the Parkses also contend that property may not
be appropriated for a longer period than the public will have a right to use it.
In essence, the Parkses suggest the public-use requirement creates a
reversionary interest in the condemnee that attaches to all property rights
acquired through condemnation. But the Parkses offer no authority for this
proposition. Regardless, it is not necessary to answer this question because
the Parkses’ argument still turns on the necessity of the particular property
interest taken in this case (i.e., a perpetual easement). As such, the duration
of the easements taken in this case is addressed below in Issue 2.
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necessity by the [condemning authority], unless based upon fraud, bad faith, or an
abuse of discretion, shall be binding on all persons.” The Parkses claim SDCL 21-
35-10.1 applies only when “considering whether the public actually needs the
project, or when the physical dimensions of the taking are challenged.”
[¶17.] De novo review is not appropriate for this issue. Shortly after
statehood, in the 1913 decision Illinois Central Railroad, this Court recognized that
“[t]he lawmakers of this state have never seen fit to clothe the courts with the power
to deny to a [public-service] corporation the right to exercise the power of eminent
domain, for the reason that ‘no public necessity exists’ for the exercise of such
power . . . .” 33 S.D. at 76, 144 N.W. at 728 (emphasis added). Indeed,
[i]t is not for the courts to oversee the choice of the boundary line
nor to sit in review on the size of a particular project area. Once
the question of the public purpose has been decided, the amount
and character of land to be taken for the project and the need for
a particular tract to complete the integrated plan rests in the
discretion of the legislative branch.
Kelo v. City of New London, Conn., 545 U.S. 469, 489, 125 S. Ct. 2655, 2668,
162 L. Ed. 2d 439 (2005) (emphasis added) (quoting Berman v. Parker, 348 U.S. 26,
35-36, 75 S. Ct. 98, 104, 99 L. Ed. 2d 27 (1954)); accord Miss. & Rum River Boom
Co. v. Patterson, 98 U.S. 403, 406, 25 L. Ed. 206 (1878) (“When the use is public, the
necessity or expediency of appropriating any particular property is not a subject of
judicial cognizance.”). If the question whether a bulk transmission line is presently
necessary is a legislative question, it will continue to be a legislative question
99 years from now. In this case, this Court is no better equipped to second guess
the duration of these easements than it is the overall need for them in the first
place.
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[¶18.] In light of the foregoing, the necessity of the duration of these
easements is not a judicial question. So in this case, this Court may not review the
necessity of the easements under the de novo standard—i.e., decide whether the
condemning authority’s determination of necessity is correct. See State, Dep’t of
Game, Fish & Parks v. Troy Twp., 2017 S.D. 50, ¶ 14, 900 N.W.2d 840, 846 (“[A]
court may not ‘exercise or participate in the exercise of functions which are
essentially legislative or administrative.’” (quoting Fed. Radio Comm’n v. Gen. Elec.
Co., 281 U.S. 464, 469, 50 S. Ct. 389, 390, 74 L. Ed. 969 (1930))). However, this
Court may review the condemning authority’s decision-making process. See id.
¶¶ 24, 33, 900 N.W.2d at 850-53 (reviewing nonjudicial administrative action under
arbitrariness standard). As required by SDCL 21-35-10.1, this Court is limited to
reviewing the Utilities’ necessity determination for “fraud, bad faith, or an abuse of
discretion[.]”
[¶19.] The Parkses do not claim the Utilities’ decision is based on fraud or
bad faith; instead, the Parkses contend the Utilities abused their discretion.
The term discretion itself involves the idea of choice, of an
exercise of the will, of a determination made between competing
considerations. In order to have an “abuse” in reaching such
determination, the result must be so palpably and grossly
violative of fact and logic that it evidences not the exercise of
will but perversity of will, not the exercise of judgment but
defiance thereof, not the exercise of reason but rather of passion
or bias.
Basin Elec. Power Coop. v. Payne, 298 N.W.2d 385, 388 (S.D. 1980) (quoting Wendel
v. Swanberg, 185 N.W.2d 348, 351 (Mich. 1971)). Electricity is a commodity in
widespread demand not only presently but for the foreseeable future. Thus, the
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Utilities’ decision to take perpetual easements is not grossly violative of fact and
logic.
[¶20.] The Parkses also contend the Utilities abused their discretion by
seeking “to take a variety of rights they have no intention of using.” The Utilities
took the easements for the purpose of “construction, operation, and maintenance of
an electrical transmission line.” Specifically, the Utilities obtained
easement[s] . . . to construct, operate, maintain, use, upgrade,
rebuild, relocate or remove an electric line facility with one or
more circuits, with all towers, structures, poles, foundations,
crossarms, cables, wires, anchors, guys, supports, counterpoises,
fixtures, and equipment related to said electric line facility,
together with communication equipment relating to the
operation of such electric line facility . . . through, over, under
and across [the Parkses’] lands[.]
During the jury trial on compensation, the Utilities indicated it was unlikely that
they would need to construct guy wires, crossarms, cables, supports, counterpoises,
or other fixtures or that they would rebuild, relocate, or remove the equipment
actually installed. According to the Parkses, “[c]laiming that it is necessary to take
rights that will not be exercised is an abuse of discretion.”
[¶21.] The Utilities did not abuse their discretion in this regard either.
Circumstances change, equipment fails, and technology evolves; the easements at
issue simply account for such possibilities. The fact that the Utilities do not
anticipate needing to relocate the transmission line, for example, does not mean the
Utilities do not intend to do so should the need arise. Including these
unanticipated-though-possible uses of the easement area actually benefits the
Parkses. By doing so, the Utilities essentially admit that such uses of the property
should be assumed in valuing the compensation due, thus relieving the Parkses of
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the burden of proving that such uses are likely consequences of the taking. See
State ex rel. Dep’t of Transp. v. JB Enters., Inc., 2016 S.D. 89, ¶ 27, 889 N.W.2d 131,
139 (“In assessing damages, it is not what the condemnor actually does, but what it
acquires the right to do, that normally determines the quantum of damage.”
(quoting 5 Julius L. Sackman, Nichols on Eminent Domain § 16.01[1] (3d ed.,
rel. 112-12/2013))). This benefits both the Parkses and the courts by reducing the
likelihood of future litigation. See 5 Sackman, supra, § 16.01[1] (“Such a standard
obviates the necessity for the landowner or his or her successors in interest to
litigate each time the condemnor changes or expands the use to which the
appropriated parcel is put.”).
[¶22.] It is also noteworthy that the Utilities took only perpetual easements
with enumerated uses. The Utilities could have entirely condemned the 150-foot
strip of land, taking fee simple—a perpetual estate consisting of all uses. But as
things stand, the Parkses necessarily retain some rights to the easement area.
Under the easements, the Parkses explicitly retain the right to “cultivate, use and
occupy the Easement Area in a manner that is not inconsistent with [the Utilities’]
rights granted” under the easements. The Parkses also retain the right to improve
and maintain the easement area, subject to certain restrictions. This measured
approach suggests the exercise of will, judgment, and reason rather than perversity
of will, defiance of judgment, and passion or bias. See Payne, 298 N.W.2d at 388.
Thus, the Utilities did not abuse their discretion.
[¶23.] 3. Whether the circuit court abused its discretion by
refusing the Parkses’ requested jury instruction.
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[¶24.] Finally, the Parkses argue the circuit court erred by refusing their
sixth requested jury instruction, which said:
The Landowners’ damages in this case include damages for all
rights taken under the easement, not just those arising from the
project proposed by the Plaintiffs. In considering damages for
the rights taken under the easement, you must consider all
damages, present and prospective, that will accrue reasonably
from the taking of the easement, and in doing so must consider
the most injurious use of the property reasonably possible under
the easement.
The Utilities respond that the jury was adequately instructed under Instructions 5
and 11. Instruction 5 states:
Montana-Dakota Utilities Company and Otter Tail Power
Company are taking only a part of Parkshill Farms’ property.
The residue of the tract of land remains in Parkshill Farms’
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
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 before, and unaffected by, the taking. Then you must
determine the “after value,” which is the fair market value of the
residue, or remaining parcel, after, and as affected by, the
taking. 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.
Instruction 11 states:
The estate or interest being taken by the Utilities in this
proceeding is a permanent easement to enter upon the land
belonging to the Landowners as shown and described in the
maps and easement documents which have been received in
evidence for the construction, operation, use, maintenance,
repair and replacement of an electric transmission line facility,
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including the line, poles, and other related structures necessary
for this purpose.
When an easement is established across a particular tract of
land by condemnation proceedings, just compensation is due to
the landowner in that amount reasonably intended to
compensate the owner for payment of the fair market value of
the specific land actually occupied by the electrical transmission
line facility, plus the reduction in value of the balance of the
right-of-way taken, and the depreciation in value of the
remaining tract of land. In considering the depreciation in value
of the remaining tract of land, the elements of damage must not
be remote, speculative or uncertain.
(Emphasis added.) The Parkses contend the portion of Instruction 11 emphasized
above impermissibly directed the jury to “base their valuation on the project as
proposed” rather than the rights actually acquired by the Utilities under the
easements.
[¶25.] We review the circuit court’s decision to grant or deny a specific jury
instruction for an abuse of discretion. Karst v. Shur-Co., 2016 S.D. 35, ¶ 8,
878 N.W.2d 604, 609. But “whether a jury was properly instructed overall” is a
question of law reviewed de novo. Id. (quoting Vetter v. Cam Wal Elec. Coop., Inc.,
2006 S.D. 21, ¶ 10, 711 N.W.2d 612, 615).
[¶26.] Although Instructions 5 and 11 are accurate statements of the law, the
jury instructions were inadequate as a whole. Instruction 5 correctly informed the
jury that compensation is to be calculated by comparing the market values of the
property before and after the taking. Rupert v. City of Rapid City, 2013 S.D. 13,
¶ 20, 827 N.W.2d 55, 64. And Instruction 11 correctly directed the jury to
compensate the Parkses for the land actually occupied by the electric-transmission-
line facility and the resulting diminution in value of the remainder of the property.
Neb. Elec. Generation & Transmission Coop., Inc. v. Tinant, 90 S.D. 284, 291,
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241 N.W.2d 134, 137-38 (1976). But these instructions do not account for other
rights explicitly acquired—even though unused—under the easements. As noted
above, when a condemning authority acquires the right to use private property in a
specific manner, the owner of that property “must be compensated under the
assumption that the [condemning authority] will” make use of that right. JB
Enters., 2016 S.D. 89, ¶ 27, 889 N.W.2d at 139 (citing 5 Sackman, supra ¶ 21,
§ 16.01[1]). Thus, the jury should have also been instructed to calculate
compensation under the assumption that the Utilities will make use of the right to,
e.g., install guy wires in the 150-foot easement area.
[¶27.] Even so, the Utilities argue the Parkses’ requested jury instruction
does not accurately state the law. As noted above, the Parkses requested the circuit
court to instruct the jury to “consider the most injurious use of the property
reasonably possible under the easement.” According to the Utilities, “[b]y basing
compensation on a ‘possible’ use, proposed instruction number 6 invites the jury to
impermissibly speculate.” But contrary to the Utilities’ characterization, the
Parkses did not request the court to instruct the jury to consider the most injurious
use possible—they requested the court to instruct the jury to consider the most
injurious use reasonably possible. The common definition of the word reasonably
excludes improbable events from consideration. See Reasonable, Black’s Law
Dictionary (10th ed. 2014) (defining the word reasonable as “[f]air, proper, or
moderate under the circumstances; sensible”). Thus, the Parkses’ requested
instruction harmonizes with Instruction 11’s proscription against considering
“remote, speculative or uncertain” elements of damage.
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[¶28.] In light of the foregoing, we reverse and remand for a new trial on
compensation. The circuit court is not required to adopt the specific language in the
Parkses’ requested instruction. The Utilities may propose their own version for
consideration. But whatever instruction is given must be consistent with our
holding in JB Enterprises that a property owner is entitled to compensation for any
right explicitly taken by a condemning authority, regardless of whether the
condemning authority ever uses such right. 2016 S.D. 89, ¶ 27, 889 N.W.2d at 139.
Conclusion
[¶29.] The easements were taken for a public use. The Utilities’
determination of necessity was not an abuse of discretion. But the circuit court did
not adequately instruct the jury on the appropriate measure of compensation due
for the easements.
[¶30.] We affirm in part, reverse in part, and remand.
[¶31.] ZINTER, SEVERSON, and KERN, Justices, and WILBUR, Retired
Justice, concur.
[¶32.] JENSEN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
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