Here's South Dakota v. JB Enterprises, Inc., No. 27176 (Dec. 7, 2016), the second in a series of three recent cases decided by the South Dakota Supreme Court involving a highway renovation project by the SD Department of Transportation. (Here's the first.)
This one involved the DOT's "quick take" power, and what happens when the state first grabs property -- in this case, the right of access -- but then partially changes its mind.
The DOT instituted a quick take of the owner's access rights. But after consultation with federal highway authorities, the scope of the project changed and the state informed the property owner, "There is a very real chance that we won't need any easements or access rights at all from your clients." Slip op. at 4.
Sure enough, that's what happened, and the DOT informed the property owner that it wouldn't be taking an access easement, and asked the owner to stipulate to dismissal of the condemnation action. The owner refused because it believed the quick take vested title in the DOT, and thus it was entitled to have the jury determine compensation, if any. The trial court held that the state had title to the access rights by virtue of the quick take and thus the owner's right to just compensation had vested. But since the DOT had never exercised its rights to close access due to its change of plans, there was no compensation or damage owed as a matter of law.
The Supreme Court reversed, and in a brief holding concluded:
During oral argument, the State claimed that by amending its petition, the State eliminated any actual taking of JBE’s property. It also asserted that it no longer holds title to the property interests described in the declaration of taking. We disagree. The State instituted this quick-take action and, as a result, currently holds title to JBE’s property interests described in the declaration of taking. This includes JBE’s “control of access” and, in some respect, the property interest described as the slope easement. See SDCL 31-19-24 (title to the property interest described in the declaration of taking vested in the State). To conclude otherwise would allow the State to abandon the taking in violation of SDCL 31-19-35 (prohibition against abandoning condemnation proceeding). The circuit court erred when it allowed the State to abandon the condemnation proceeding.
Slip op. at 11.
In a separate opinion, the court also concluded that the DOT could not have abandoned a quick take. Once taken, property can't be untaken. "[O]nce title vests in the State, it is not permitted to reduce or abandon the interest acquired; it is merely permitted to minimize damage to the landowner's remaining property that results from being severed from the property actually taken." Slip op. at 14.
South Dakota v. JB Ent., Inc., No. 27176 (S.D. Dec. 7, 2016)
