on Briefs March 21, 2016.
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT DEWEY
COUNTY, SOUTH DAKOTA. THE HONORABLE MICHELLE K. PALMER PERCY,
ARENDT, Pierre, South Dakota, Attorney for plaintiff and
ABERLE, Dewey County State's Attorney, Timber Lake, South
Dakota, Attorney for defendant and appellee.
BURKE, Thomas, Braun, Bernard & Burke, LLP, Rapid City, South
Dakota, Attorneys for intervenor and appellee.
Justice. GILBERTSON, Chief Justice and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
[¶1] The Dewey County Commission (the
Commission) granted an application to erect a power
distribution line in a section line right-of-way bordering
Margaret Upell's property. She appealed to the circuit
court which dismissed her appeal for lack of jurisdiction.
She now appeals to this Court. We affirm.
and Procedural History
[¶2] Moreau-Grand Electric Cooperative, Inc.
(Coop) filed an application with the Commission in December
2014 to erect and maintain a distribution line in a section
line right-of-way. The application was filed pursuant to SDCL
31-26-1, which provides in pertinent part:
The board of county commissioners, upon written application
designating the particular highway the use of which is
desired, may grant to any person engaged in the manufacture
or sale of electric light and power . . . the right to erect
and maintain poles and wires or to bury underground cable for
the purpose of conducting electricity for lighting, heating,
and power purposes, together with stay wires and braces . . .
in and along any public highway in its county for a period
not to exceed twenty years, subject to the conditions set
forth in this chapter and such further reasonable regulations
as the Legislature may hereafter prescribe.
[¶3] Upell owned property adjacent to the
section line and objected to the erection of the power line.
The Commission held a hearing on Coop's application in
March 2015. All parties appeared, offered testimony, and
presented arguments and authorities. At the close of the
hearing, the Commission voted to approve Coop's
application. The Commission published its minutes on March
18, 2015. Upell filed a notice of appeal of the
Commission's decision with the circuit court on March 25,
2015. Upell served her notice of appeal by mail on counsel
for Coop and on the Dewey County State's Attorney. But
she did not serve a member of the board of county
commissioners as required by SDCL 7-8-29, which provides in
Such appeal shall be taken within twenty days after the
publication of the decision of the board by serving a written
notice on one of the members of the board, when the
appeal is taken by any person aggrieved by the decision of
[¶4] On June 29, 2015, Upell, the
Commission, and Coop filed a stipulation agreeing to
Coop's intervention in Upell's appeal. The circuit
court filed its order granting the intervention on that same
date. On July 6, 2015, Coop filed a motion to dismiss
Upell's appeal for failure to serve the notice of appeal
on a member of the board of county commissioners as required
by SDCL 7-8-29. The motion was heard on July 20 and ...