Fauske v. Dean , 78 S.D. 310 ( 1960 )

BIEGELMEIER, J.

Plaintiff brought suit against the defendant members of the State Highway Commission of the State of South Dakota to restrain them from constructing a controlled-access interstate highway in a manner not in conformance with plans and testimony introduced in the prior condemnation action when the right of way was acquired. Plaintiff owns three tracts of land; a home place of 2,900 acres, 320 acres pasture and 160 acres "Wheatland Each tract is two or three miles distant from the other. The pasture is surrounded by land owned by the United States. The evidence in the condemnation action showed that plaintiff, under the Taylor Act, had a permit to pasture 190 head of cattle on the government land. See State Highway Commission v. Fortune, 77 S.D. 302, 91 N.W.2d 675, 683. The condemned highway angles in a northwesterly-southeasterly direction through the plaintiff’s 320-acre pasture and 160-acre wheatland and the government land.

At the trial of the condemnation action the plaintiff in this action was permitted to show, and the jury was instructed that he could recover, not only the value of the 40.66 acres taken in fee, the highest value of which was testified to be $35 per acre, but also damage to his whole ranch unit. The controlled-access highway is to be fenced so as not to allow livestock to- cross the highway at grade; it divides the common pasture with one-third to the south and two-thirds to the north; to permit livestock to graze on all the pasture, the plans and specifications introduced in evidence and testified to on behalf of the state showed two 7x7 concrete cattle underpasses and 232-ft. bridge over Whitewater Creek with roadways on each side under this bridge; all of these structures were to be 'built on the government land and none on plaintiff’s land. A layout of a proposed interchange was introduced in evidence; the State Highway Engineer testified it represented a “future proposed facility”. It included an overpass of the four-lane highway which would permit traffic to traverse, enter and leave the highway without crossing it at grade. This ¡interchange was to be constructed over four miles from plaintiff’s buildings on or near the section line highway between sections 15 and 16 to the west of the Wheatland within the rights of way of the public highways. At the condemnation trial the plaintiff and witnesses on his behalf testified the proposed cattle passes did not provide sufficient access for his cattle to go from his ranch unit to the common pasture, and that the overpass on the interchange would not be sufficient for transfer of his machinery for his farming operations of the wheatland.

The state paid the jury’s condemnation award of $6,427 and thereafter let contracts for the construction of the highway in which the 7x7 cattle underpasses and the interchange were omitted. This injunction suit followed. The circuit court entered a judgment restraining the defendants from constructing the highway on plaintiff’s ranch unit in a manner not in strict conformance with the plans and specifications introduced in evidence at the trial of the condemnation proceeding. Section 13 of Article VI of the Constitution of the State of South Dakota in part provides:

“Private property shall not be taken for public use, or damaged, without just compensation as determined by a jury, which shall be paid as soon as it can be ascertained, and before possession is taken.”

Plaintiff urges this provision, Searle v. City of Lead, 10 S.D. 312, 73 N.W. 101, 39 L.R.A. 345 and Hyde v. Minnesota, D. & P. R. Co., 24 S.D. 386, 123 N.W. 849, authorize the trial court’s injunction, while defendants contend that this Hyde decision requires a contrary result. The equitable jurisdiction and power to issue injunctions is recognized and granted by Art. V, §§ 3 and 14 of our Constitution. Inadequacy of a remedy at law is a basis on which a court of equity founds the exercise of its power to afford relief by injunction Holdcroft v. Murphy, 66 S.D. 388, 283 N.W. 860; see Beatty v. Smith, 14 S.D. 24, 84 N.W. 208; Miller v. Hagie, 59 Wyo. 383, 140 P.2d 746, and 18 Am.Jur., Eminent Domain, § 386 at p. 1033.

The reasoning in Hyde v. Minnesota was1 that if plaintiff had sustained any damages redress could be had in an appropriate action at law against the railroad. Here it is claimed the state will cause the damage by the planned road construction. An action at law cannot be maintained against the state in the absence of constitutional or statutory authority. Griffis v. State, 68 S.D. 360, 2 N.W.2d 666. No consent has been given to sue for damages such as are here involved. It follows that plaintiff has no remedy at law against the state and the holding in the Hyde injunction case has no application. The only remedy available to plaintiff, if he has sustained legal damage is by injunction. Such an action against state officers is not an action against the state. Suits in equity against persons who, while claiming to act as officers of the state, violate and invade property rights under color of authority unconstitutional or void are not suits against the state. White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397. Art. VI, § 13 of the Constitution compels all persons who may be armed with the power of eminent domain of first paying just compensation to the owner before taking possession. This includes the state and its officers and a court of -equity will intervene to keep them within their authority. Hyde v. Minnesota, supra.

The record shows that after entry of the judgment the State Highway Commission filed a resolution adopted before entry of the judgment, directing that the 7x7 foot cattle passes be reinstated in the plans and be built; on oral argument plaintiff conceded they had been built. It often happens that there is a change in conditions between the commencement of the action and the trial that a different situation is then presented. See Alsager v. Peterson, 31 S.D. 452, 141 N.W. 391. In Ericksen v. John Morrell & Co., 70 S.D. 38, 14 N.W.2d 88, this court affirmed a denial of an injunction against a wrongful act, the pollution of a river, which existed at the time of commencement of the action but was discontinued before judgment. The Commission’s action indicates an intention to complete the two lanes with the cattle passes so there is no threat of change of plans as appeared at the trial. Relief by injunctions operates in futuro and the right to it may be determined as of the time of the decision in the appellate court. American Fruit Growers, Inc. v. Parker, 22 Cal.2d 513, 140 P.2d 23; Cal-Dak Co. v. Sav-on Drugs, Inc., 40 Cal.2d 492, 254 P.2d 497. While generally speaking, courts of final resort confine investigations' of facts to the record presented at the time the appeal was perfected, in injunction actions it may take cognizance of those occurring during the pendency of the appeal where •they bear directly on the question presented by the appeal. City of Tulsa v. Chamblee, 188 Okl. 94, 106 P.2d 796. See Smith v. Reid, 60 S.D. 311, 244 N.W. 353; 5B C.J.S. Appeal and Error § 1842, p. 250.

The record here and the Completed construction obviate the reason for continuing the 'injunction. Where compliance with an injunction was shown on appeal it has been vacated. Borgnemouth Realty Co. v. Gulf Soap Corporation, 212 La. 57, 31 So.2d 488; Green v. Skermetta, La.App., 57 So.2d 762. The judgment is continuous and prohibits any changes ‘in the future if and when a second •lane is constructed without regard to the interest of plaintiff, if any, at that time. His situation may be entirely different. Under the Taylor Grazing Act, (43 U.S.C.A. §§ 315-315r) his permits may have been revoked as they are “mere licenses, revokable at will without legal right to compel compensation”. Osborne v. United States, 9 Cir., 145 F.2d 892, 893: United States v. Cox, 10 Cir., 190 F.2d 293, or the United States may have taken exclusive possession of the permit land as it is only “a privilege which is with-drawable at any time for any use by the sovereign without the payment of compensation.” Osborne v. United States, supra. This court recognized this in State Highway Commission v. Fortune, 77 S.D. 302, 91 N.W.2d 675, 683. Therefore, it is not required that we consider plaintiff’s present status as (permit holder to restrain the change of plans of construction on the government land. See Osborne v. United States, supra; United States v. Cox, supra; United States v. Jaramillo, 10 Cir., 190 F.2d 300.

The trial Court’s judgment further required the state to construct the interchange shown in the plans “but not until such time as a two-lane portion of said highway is constructed and open for travel to the public, * * It was stipulated that unless enjoined the interchange would not be constructed until some indefinite date when a second lane is constructed and the present plans of Construction consist of only a crossing at grade. In the condemnation action plaintiff testified the overpass of the interchange, as he -understood it, would not be of sufficient size to permit passage of his machinery to the north part of his Wheatland, that no one would want to plank an 800-ft. overpass and the cost of loading machinery on a lowboy would be prohibitive. The state showed the width was to be greater than plaintiff assumed and the jury considered all this evidence. He was fully compensated for any damage the interchange might cause him. The damages were awarded on the basis that an overhead crossing would be constructed at the interchange. The overhead crossing has not been omitted or eliminated from the plans and specifications. It will -not 'be constructed until the -need arises by reason of the construction of the four-lane highway. In the meantime ■the plaintiff has a convenient and readily accessible right to cross the intersection at grade. T'he -plaintiff has not suffered and will -not suffer any damages by reason of the interchange for which he has not been fully compensated. He has, therefore, no standing to ask for injunctive relief. The judgment is reversed.

ROBERTS, P. J., and SMITH and HANSON, JJ., concur.