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Upell v. Dewey County Commission

Supreme Court of South Dakota

May 18, 2016

MARGARET UPELL, Plaintiff and Appellant,
v.
DEWEY COUNTY COMMISSION, Defendant and Appellee, and MOREAU-GRAND ELECTRIC COOPERATIVE, INC., Intervenor and Appellee

         Considered on Briefs March 21, 2016.

          APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT DEWEY COUNTY, SOUTH DAKOTA. THE HONORABLE MICHELLE K. PALMER PERCY, Judge.

         AL ARENDT, Pierre, South Dakota, Attorney for plaintiff and appellant.

         STEVEN ABERLE, Dewey County State's Attorney, Timber Lake, South Dakota, Attorney for defendant and appellee.

         JOHN W. BURKE, Thomas, Braun, Bernard & Burke, LLP, Rapid City, South Dakota, Attorneys for intervenor and appellee.

         KERN, Justice. GILBERTSON, Chief Justice and ZINTER, SEVERSON, and WILBUR, Justices, concur.

          OPINION

         KERN, Justice

          [¶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.

         Facts 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 pertinent part:

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 the board[.]

(Emphasis added.)

          [¶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 ...


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