RAYMOND C. OYEN, Petitioner and Appellee,
LAWRENCE COUNTY COMMISSION, Respondent and Appellant.
AUGUST 29, 2017
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA, THE HONORABLE MICHELLE K.
R. BRAUN of Thomas, Braun, Bernard & Burke, LLP Rapid
City, South Dakota RICHARD P. TIESZEN of Tieszen Law Office
Pierre, South Dakota Attorneys for petitioner and appellee.
L. OUTKA Lawrence County Deputy State's Attorney
Deadwood, South Dakota JOHN R. FREDERICKSON Deadwood, South
Dakota Attorneys for respondent and appellant.
Various landowners petitioned the Lawrence County Commission
requesting that the County maintain a road providing access
to their homes. The County denied the Landowners request.
Petitioner Raymond Oyen appealed the County's action to
the circuit court. The County filed a motion to join the
United States of America as an indispensable party. The court
denied the motion, finding the County responsible for the
road and directing the County to provide maintenance. The
County appeals. We reverse, and remand for the circuit court
to join, if feasible, the United States of America as an
indispensable party. If joinder is not possible the circuit
court must determine whether to proceed or dismiss the case.
In 1930, Miner's and Merchant's Savings Bank granted
Lawrence County an easement for the "free and
uninterrupted use, liberty and privilege of a right of way of
the customary width, for highway purposes . . . to carry with
it all of the attendant burdens and easements of a public
highway." That right of way covers South Rapid Creek
Road (SRCR), which is at issue in this case. Since the 1970s,
the County approved three platted subdivisions indicating
that SRCR is a county road or a county/forest service road.
In 1992, the County granted the United States of America:
exclusive easements for the existing road for use for all
lawful purposes by the United States . . . and the general
public when authorized by the Grantee, over and across the
parcels of land . . . described as follows: South Rapid Road
No. 231.6 . . . South Rapid Branch Road No. 231.6A . . . the
said easements hereby granted are for the reconstruction,
maintenance, and full, free and quiet use and enjoyment of
the existing roads as they are presently located and in place
over and across the above described premises.
minutes of the 1992 Commission reflect that the motion to
transfer was made in order to "follow the recommendation
of the Highway Superintendent and authorize the Chairman to
sign a transfer of existing easements."
On August 15, 2015, Lawrence County landowners owning real
property along SRCR, petitioned the Lawrence County
Commission to provide snow removal and maintenance of SRCR.
The Commission reviewed the matter at its meeting on October
13, 2015, and denied the request for service to the road.
Thereafter, Oyen appealed the determination to the circuit
court. The United States of America was not a party to the
proceedings, and on June 7, 2016, the County filed a motion
to dismiss Oyen's petition, or in the alternative, join
the United States as an indispensable party. The circuit
court conducted a hearing on the motion on June 20, 2016, and
denied the motion on July 22, 2016. In its findings of fact
and conclusions of law on the motion, the circuit court
stated: "Because Lawrence County failed to transfer its
duty to maintain SRCR to the Forest Service, the Forest
Service is not an indispensable Party to this action."
The circuit court issued further findings of fact and
conclusions of law on November 21, 2016. The court found that
SRCR has been open to and used by the public as a public
roadway since the 1930s. It also found that agreements
between the County and the Forest Service indicate that both
the County and Forest Service admit that SRCR is on the
County and Forest Service road systems. An agreement dated
May 12, 1983, stated that the "county is vitally
interested in providing and operating a road system to
provide adequate vehicular access for residents and
commercial enterprises for both intra and inter-county
travel[.]" The circuit court found Lawrence County's
witness testimony that SRCR was a Forest Service road
inconsistent with documentary evidence (Commission minutes
and recorded easements) reflecting that the County had joint
ownership and responsibility for SRCR. It found such
testimony to also be inconsistent with the "attempt to
transfer the road easements to the United States Forest
Service[.]" Finally, it found that the
"County's decision to deny the petition was based on
false information and lack of relevant and competent evidence
and the County's refusal to review documentary evidence
of ownership by the County was therefore arbitrary and
The circuit court ultimately determined that Lawrence County
is responsible for maintaining the road pursuant to SDCL
31-12-26. The court concluded that the County, through its
actions of accepting the right-of-way easements and approving
the plats, "agreed to hold the property in trust for the
benefit of the Petitioners and other members of the Public .
. . which responsibility cannot simply be transferred to the
United States Forest Service without ensuring such
obligations and responsibilities are protected and assured
pursuant to SDCL 11-3-12[.]" The court noted that
pursuant to SDCL 31-1-3, "[a]ll public highways . . .
lawfully established shall continue as established until
changed or vacated in some manner provided by law." The
court concluded that the Commission did not follow the
specific procedure set forth in SDCL 31-3-6 through SDCL
31-3-9 for vacating or changing a county secondary road.