APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA, HONORABLE JOHN W. BASTIAN Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
[¶1.] Lawrence County (County) filed a condemnation petition for a runway expansion project to allow the use of Class BII Large aircraft at Black Hills Airport/Clyde Ice Field (airport). The matter was scheduled for a jury trial after County and the landowners could not agree on the value of the 206 acres condemned by the petition. County filed a motion for partial summary judgment to preclude private landowners from introducing evidence and testimony regarding the effects of landing and takeoff height restrictions on the remainder of the adjacent land. County did not draft or enact landing and takeoff height restriction ordinances at the time the condemnation petition was filed, but could be required to do so in the future by the Federal Aviation Administration (FAA). Landowners resisted and also sought to introduce evidence of additional height restrictions that could be imposed if the airport were to expand to permit Class C and D aircraft operations. The trial court granted County's motion. Landowners appeal. We affirm Issue 1 but modify the trial court's ruling as to Issue 2 because landowners' claim was not a justiciable controversy at the time of trial, but may become so at some point in the future.
[¶2.] In September 2007, County filed a petition to condemn approximately 206 acres of real property for an airport runway expansion project. The 206 acres, located north of and contiguous to the airport, were part of a larger parcel of approximately 515 acres owned by the estate of Elvin E. Mitchell and Cris Miller (Owners). County's resolution 2006-38 proclaimed its purpose in condemning the land:
AND WHEREAS, the purpose of the proposed action is to enhance the utility and safety of Black Hills Airport/Clyde Ice Field to accommodate current and projected levels of aviation activity by the design aircraft family and provide Instrument Flight Rules capability. The need for the proposed action is related to compliance with FAA standards for BII Large aircraft, specifically runway length and instrument approaches.
The resolution described a taking of only the 206 acres of Owners' 515-acre tract. The resolution did not include any reference to the airspace above the remaining 309 acres.
[¶3.] The 515-acre tract had been used for ranching for three generations at the time of the condemnation. However, the highest and best use of the land, as determined by both parties, was low density, or large-lot, residential use due to its proximity to a development area around Spearfish, South Dakota. This major growth area had experienced significant expansion in both population and development in the prior decade.
[¶4.] The parties could not agree on the "before" and "after" value of the complete 515-acre tract from which the 206 acres were taken. Owners' appraiser concluded the value of the taking was $1,683,000. Owners' appraiser did not consider any diminution in the value of the remaining 309 acres in the event County's ordinances imposed height restrictions for the landing and takeoff for Class BII Large aircraft, or if it were to permit larger aircraft of Category C and D level aircraft to use the runway, which could impose additional height restrictions on the remaining acreage at some point in the future. County's appraiser also did not consider any diminution in value for the remaining 309 acres due to the potential for future height restrictions. County's appraised value of the condemned 206 acres was $1,173,058. Trial on the amount of damages for the taking was held on April 2, 2009. The jury returned a verdict for the landowners for the taking of the 206 acres in the amount of $1,218,983.65.
[¶5.] Prior to the trial, on November 5, 2008, County filed a motion for partial summary judgment on the alleged effect on Owners' remaining 309 acres. County asked in its motion "that any claim of taking by alleged or supposed loss of use by reason of alleged height restrictions or any other collateral impact of the runway extension project be dismissed." It further sought an order precluding Owners from arguing or offering evidence of any such claim during the jury trial on the value of the 206 condemned acres. County also sought to preclude the admission of any additional expert witnesses or reports as the parties were required to disclose expert witnesses by March 31, 2008, and any extension would delay the trial beyond the scheduled date.*fn1
[¶6.] Owners resisted the motion and hired Clyde Pittman, a national expert in determining structural height limitations resulting from FAA regulations, to evaluate the impact of the runway expansion on the remaining 309 acres. His report indicated that the extension of the runway for Class BII Large aircraft would result in height restrictions on the remaining 309 acres in order to comply with FAA takeoff and landing patterns and safety requirements. Pittman also indicated that the expansion as planned would enable the use of Category C level aircraft without requiring the condemnation of more land, but would impose additional height restrictions on the remaining 309 acres. The use of Category C aircraft would enlarge the airport circling area by an additional 0.2 nautical miles from the runway and extend out farther over the remaining 309 acres. If County eventually expanded the airport for the use of Category D level aircraft, the circling area would extend 2.3 nautical miles from the runway. Pittman's report further indicated such an expansion, if undertaken, would extend completely over the remaining 309 acres. He also opined the expansion would subject the 309 remaining acres to actual physical invasion by aircraft arriving at and departing from the airport. FAA regulations would in turn impose height limitations on the remaining 309 acres. However, no evidence was presented by Owners of the diminution in value of the remaining 309 acres due to height restrictions that might be imposed in the future.
[¶7.] The trial court granted County's motion for partial summary judgment and Pittman's report was not considered by the jury in determining the value of the condemned 206 acres. The trial court concluded that Pittman's report was conjecture and speculation. It further concluded that Owners' evidence of possible future airspace intrusion was a "mere general allegation[ ]" and did not set forth specific facts to show genuine issues of material fact for trial on the issue of the collateral impact of the runway extension project.
[¶8.] Owners appeal raising the following issues:
1. Whether a factual basis existed to support a claim for additional compensation for the invasion of the airspace over Owners' remaining 309 acres.
2. Does the decision of the trial court preclude future claims by Owners for the taking of air space ...