WILLIAM E. COESTER and JUDY A. COESTER, Petitioners and Appellants,
WAUBAY TOWNSHIP, an organized township and political subdivision of the State of South Dakota, and THEODORE WASILK a/k/a TED WASILK, NEIL HOLSHER and TERRY ZUBKE, each in their capacity as Township supervisors, Respondents and Appellees.
CONSIDERED ON BRIEFS ON JANUARY 8, 2018
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY
COUNTY, SOUTH DAKOTA THE HONORABLE JON S. FLEMMER Judge
WILLIAM E. COESTER of Coester Schwandt Law Office Milbank,
South Dakota Attorneys for petitioners and appellants.
LEIBEL Madison, South Dakota Attorneys for respondents and
William and Judy Coester (Petitioners) made numerous requests
to Waubay Township to maintain roads accessing their
property. After the Township refused each request to maintain
the roads, Petitioners applied for a writ of mandamus from
the circuit court. The circuit court denied the writ,
determining that the Township had no duty to maintain the
roads as they were not part of the township road system. We
and Procedural History
Petitioners own property on the south shore of Enemy Swim
Lake, in Waubay Township (Township), Day County, South
Dakota. South Bay Drive bisects Petitioners' property,
and Snyder Drive runs adjacent to the southern boundary.
These two roads connect to Dinkle Drive, which in turn
connects to BIA Highway 500. The roads connecting to BIA
Highway 500 have been dedicated to public use and platted as
such. However, the Township has never maintained or removed
snow from South Bay Drive, Snyder Drive, or Dinkle Drive,
despite numerous requests from Petitioners to do so.
Petitioners, in an attempt to force the Township to maintain
these roads, sought a writ of mandamus from the circuit
court. Petitioners admitted in their January 2017 petition
for a writ that the Township had never maintained the roads.
However, Petitioners claimed that the Township possessed the
resources to do so and that the Township had previously
exercised jurisdiction over the roads. In support of their
claim, Petitioners requested that the circuit court take
judicial notice of two easements, which the court received
into evidence. The easements had been granted by the Township
and dated October 31, 1992, and October 24, 1995, and
provided the owners of various lots in Petitioners'
subdivision perpetual easements for placing utilities and
water lines under, over, in, or across the roadways running
between the owners' lots.
On February 1, 2017, the circuit court held a hearing on the
petition for a writ of mandamus. On June 30, 2017, the
circuit court issued a detailed memorandum decision denying
the writ. According to the circuit court, the issue was
whether the roads in question were township roads
under SDCL 31-13-1. SDCL 31-13-1 provides in part that
"[t]he board of township supervisors shall . . .
maintain all of the township roads within the
township" (emphasis added), which the court stated
"clearly indicates that a 'township road' within
the township is something different than simply a road within
the township[.]" While acknowledging that SDCL 31-13-1
does not define township roads, the court
highlighted the statutory definition of a township road
system. The court observed that township road
systems are defined in SDCL 31-13-1 as section line
roads; judicially declared roads; roads impliedly accepted by
the township through maintenance; and other roads designated
as being on the township road system by a board resolution.
The court then concluded that the Legislature's decision
"to limit the responsibility for . . . maintenance of
roads . . . to all of the 'township roads' clearly
indicate[ed] that the township has responsibility for . . .
maintenance of only those roads on the township road
On August 2, 2017, the circuit court issued findings of fact
and conclusions of law as well as its judgment and order. In
its findings of fact and conclusions of law, which
incorporated the memorandum decision, the court noted that
the Township had never signed or approved any plat containing
the roads at issue. Additionally, it found that the Township
granted the easements simply "to assist the landowners
in obtaining utilities and water." In its conclusions of
law, the court determined that the roads were "private
roads dedicated to the public pursuant to SDCL
Petitioners appeal the order denying the petition for a writ
of mandamus, arguing the court erred by determining that the
roads were private roads and that the Township had no
statutory duty to maintain the roads.
"This Court reviews the decision to grant or deny a writ
of mandamus under an abuse of discretion standard."
Krsnak v. S.D. Dep't of Env't & Nat.
Res., 2012 S.D. 89, ¶ 8, 824 N.W.2d 429, 433. An
abuse of discretion is "a fundamental error of judgment,
a choice outside the reasonable range of permissible choices,
a decision . . . [that], on full consideration, is arbitrary
or unreasonable." Wald, Inc. v. Stanley, 2005
S.D. 112, ¶ 8, 706 N.W.2d 626, 629. However,
"statutory interpretation and application are questions
of law that we review de novo." Krsnak, 2012
S.D. 89, ¶ 8, 824 N.W.2d at 433. We discern legislative
intent primarily using the language of the statute, giving