Landlocked-Access Determinations Are Quasi-Judicial and Require Trial De Novo

1. Introduction

This decision addresses how South Dakota courts must review county decisions granting access to landlocked property. It also clarifies the continuing presumption that section-line rights-of-way exist unless lawfully vacated and the circumstances in which an applicant must bear the cost of a county-commissioned appraisal.

Steve and Monica Zirbel purchased two noncontiguous parcels along Lake Alice in Deuel County in 2023. Neither parcel adjoined a maintained roadway. They initially expected to reach the East Parcel over an unimproved section-line right-of-way. County officials, however, maintained that Altamont Township had vacated that right-of-way in 1959. After receiving a trespass notice and unsuccessfully negotiating access with neighboring owners, the Zirbels applied for statutory access under SDCL chapter 31-22.

The Deuel County Board of County Commissioners initially rejected their application on the theory that Lake Alice itself supplied access as a public highway. On the first appeal, the circuit court rejected that theory and remanded. The Board subsequently selected access routes and assessed compensation and appraisal expenses. In a second appeal, the circuit court reviewed the Board’s decision deferentially, upheld the routes and damages, but removed the appraisal charge.

The Supreme Court unanimously vacated the circuit court’s order. Its principal conclusion was that the circuit court had misunderstood the nature of the Board’s function: resolving these particular property disputes was adjudication, not policymaking. The court ordered a trial de novo, together with factual determinations concerning the East Parcel’s existing access and the appraisal’s relationship to the statutory proceedings.

2. Summary of the Opinion

Procedural background and disputed assessment

After the first remand, the Board inspected the properties and obtained an appraisal addressing alternative routes. The proposed rights-of-way affected Dakota Ridge, Inc., the Haas interests, the United States Fish and Wildlife Service, and William and Julie Moe. None of those affected owners intervened in the judicial proceeding.

The Board unanimously selected an appraised proposal. The stated total assessment of $270,647 comprised:

• $181,488 allocated to Dakota Ridge;
• $4,946 allocated to the Haases;
• $10,356 allocated to the United States Fish and Wildlife Service;
• $44,058 allocated to the Moes; and
• $29,799 for the appraisal.

The Zirbels disputed the assessment and the Board’s reliance on the appraisal. They also continued to contest whether the section-line right-of-way had actually been vacated. The Board, through a notice of review, challenged the circuit court’s removal of the appraisal expense.

Principal rulings

The judgment does not finally establish the proper routes, compensation amounts, or recoverable appraisal charge. Those matters remain subject to the proceedings ordered on remand.

3. Legal Reasoning

A. Statutory access occupies a distinctive position in property law

The court began by explaining that statutory access is neither an ordinary common-law easement of necessity nor a conventional condemnation proceeding. It combines features of both.

A common-law easement of necessity ordinarily depends on a common grantor: the inaccessible parcel and the land across which access is sought must have the required historical ownership relationship. That doctrine does not solve every landlocked owner’s problem. Without an alternative statutory remedy, a neighboring owner might demand an access price unrelated to an identifiable market value.

SDCL chapter 31-22 addresses that problem by creating an entitlement to access for qualifying isolated tracts. Under SDCL 31-22-1, the entitlement generally concerns:

• an isolated tract containing at least ten acres; or
• a tract containing at least five acres used, or genuinely intended to be used, at least partly for residential purposes.

The statute also defines isolation by reference to motor-vehicle accessibility and passable public highways. Importantly, a tract adjoining a section-line right-of-way for at least sixty-six feet is not isolated if a passable road can be constructed within that adjoining section line to connect with a passable public highway.

When a qualifying owner cannot negotiate access, the statutory process requires an application, notice to affected owners, a site visit, route selection, and assessment of damages. The commission must consider the parties’ convenience and, wherever practicable, place the route along a section line. The resulting right-of-way must be recorded in the county auditor’s highway records.

The applicant’s entitlement is accompanied by substantial financial obligations. The applicant must pay compensation and the costs of the proceedings before obtaining the complete right to use the access. The statutes also address fencing and gates and assign maintenance responsibility to the isolated-tract owner.

Although the remedy principally answers an individual owner’s access problem, the resulting right-of-way is public under the court’s earlier construction of the chapter. The opinion carefully separates that public-use characteristic from the different question whether the decision establishing the route is legislative or adjudicative.

B. Existing section-line access must be resolved before statutory isolation can be assumed

South Dakota law establishes public highways along section lines by operation of law, subject to lawful vacation or relocation. Once established, their continued existence is presumed. Their disappearance cannot be inferred merely because they have never been opened, improved, or traveled.

The existence of the East Parcel’s section-line access was therefore a threshold legal and factual question. If a qualifying right-of-way remained available and a passable connecting road could be built, the East Parcel might not meet the statutory definition of an isolated tract.

The Board and circuit court had proceeded on the assumption that the right-of-way had been vacated. But the evidentiary foundation was missing. The state’s attorney’s memorandum cited handwritten township minutes and contemporary newspaper articles, yet neither the memorandum nor its underlying materials appeared to have been admitted into evidence before the Board or circuit court.

The Supreme Court emphasized that an attorney’s interoffice memorandum has no independent legal force and cannot substitute for a judicial determination. The relevant historical documents must be evaluated through an evidentiary process capable of establishing whether a lawful vacation occurred.

Accordingly, the court vacated the determination that the right-of-way had been vacated and that the East Parcel was isolated. The Board, as the party opposing the presumed continued existence of the right-of-way, bears the burden of proving vacation. The opinion did not decide whether the township’s 1959 actions were effective. Nor did it suggest that the West Parcel’s isolation was disputed.

C. Separation of powers makes the function performed—not the identity of the decision-maker—decisive

SDCL 7-8-30 states that appeals from county commission decisions “shall be heard and determined de novo.” Nevertheless, the court’s existing separation-of-powers decisions limit the literal reach of that language. Courts cannot conduct a fresh trial that effectively transfers legislative or executive policymaking to the judiciary.

The controlling inquiry is therefore functional. A county commission can perform different kinds of work. Some decisions establish prospective policy; others resolve disputes by applying existing law to particular facts. Only the latter are quasi-judicial in the relevant sense.

The opinion identifies four especially important reasons why the Board’s chapter 31-22 determination belonged in the adjudicative category:

1. It resolved a concrete controversy. The Board determined the rights and liabilities of identifiable landowners concerning specific parcels. It applied an existing statutory entitlement rather than creating a new general rule.
2. The process resembled litigation. Failed negotiations were followed by a written application, identification of affected owners, notice, and an opportunity to be heard. These features closely resemble pleadings and hearings in a civil action.
3. The task resembled ordinary judicial business. Resolving property rights and compensation is work courts customarily perform. Comparable statutes in eighteen other states assign similar access proceedings to courts.
4. The statutory appeal structure supported equal treatment. SDCL 31-22-5 already provides adjoining, servient owners with a trial de novo. It would be incongruous to deny that form of adjudication to the isolated-tract owner appealing the same proceeding under SDCL 7-8-30.

The Board’s public-use argument did not change this classification. A right-of-way can be open to the public while the decision establishing it remains an adjudication of particular property rights. Indeed, SDCL 31-22-3 directs the commission to consider “the convenience of the parties,” rather than to formulate policy for the public generally.

The consequence is substantial: the circuit court must determine the dispute anew through an evidentiary trial. It cannot simply ask whether the Board had a rational basis for its route selection or compensation assessment.

D. Appraisal authority arises from the duty to determine compensation

Counties possess only powers conferred by statute and powers reasonably implied from those grants. Chapter 31-22 does not expressly authorize hiring an appraiser. It does, however, expressly require the commission to assess the damage caused to the owners whose land will carry the right-of-way.

The court treated that compensation duty seriously because the statutory process compels a conveyance from an otherwise unwilling owner. Here, the application involved two noncontiguous parcels and four neighboring ownership interests. Obtaining professional valuation assistance was reasonably necessary to discharge the Board’s express duty accurately and fairly.

This reasoning does not give counties unlimited authority to commission professional services. The implied power must remain reasonably connected to an express statutory responsibility. In this case, the required connection existed between appraisal services and the assessment of property damage.

E. Recoverable appraisal costs depend on their statutory connection

SDCL 31-22-6 requires the isolated-tract owner to pay:

“all of the costs of the proceedings in laying out and assessing the damages of said right-of-way”

The court regarded that language as clear enough to encompass appraisal expenses used for the statutory assessment. The statute’s separate allowance for commissioners’ attendance and mileage did not confine recovery to those particular items. The conjunction “and” connects an additional allowance; it does not narrow the preceding obligation to pay all qualifying costs.

The text also fits the statutory allocation of responsibility: the Legislature provided landlocked owners with a compulsory access remedy but required them, rather than county taxpayers, to bear its associated expenses.

Nevertheless, the court did not automatically impose the entire $29,799 invoice on the Zirbels. It directed the circuit court to make findings of fact and conclusions of law, based on the evidence at the trial de novo, concerning whether the appraisal was a cost of laying out the routes and assessing damages. The decision therefore establishes statutory recoverability, not a final adjudication of the particular charge.

F. The alleged conflict did not justify additional relief on this record

The Zirbels alleged that Commissioner Jay Grabow was a cousin of Dakota Ridge’s current owner. SDCL 6-1-17 restricts participation where an official has a direct pecuniary interest or the governing body makes the specified conflict determination. SDCL 6-1-21 additionally addresses officials acting in a quasi-judicial capacity.

The initial circuit-court record did not adequately establish a conflict. The Zirbels did not develop the matter further after remand or identify it in their second circuit-court appeal. The Supreme Court likewise lacked sufficient facts to find prejudice or an unacceptable risk of bias.

There was also an independent statutory obstacle to relief: SDCL 6-1-17 identifies invalidation of the official’s vote as the sole legal remedy. Because all five commissioners voted for the determination, removing Commissioner Grabow’s vote would not change the result. This was a case-specific application of the statute, not a general declaration that unanimous decisions eliminate all concerns about decision-maker impartiality.

4. Precedents Cited and Their Influence

A. Easements of necessity and the public character of statutory access

Fuoss v. Dahlke Fam. Ltd. P'ship, 2023 S.D. 3, 984 N.W.2d 693, and Springer v. Cahoy, 2013 S.D. 86, 841 N.W.2d 15

These decisions explain the common-law easement of necessity: a landlocked grantee may obtain access across land retained by the grantor. They supplied the comparison necessary to show why chapter 31-22 is a distinct remedy. The statutory process addresses circumstances that the common-grantor requirement leaves unresolved.

Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366 (S.D. 1978)

This precedent performed several important roles. It rejected a constitutional challenge asserting that chapter 31-22 authorized condemnation solely for private use, construing the resulting route as a public right-of-way. It also recognized the statutory notice and hearing protections.

Most importantly for appellate procedure, the earlier decision treated a trial de novo as a full evidentiary reconsideration, with the circuit court exercising the same decisional powers as the county commission. That understanding supported the conclusion that the process is adjudicative and that judicial reconsideration supplies meaningful procedural protection.

The Board relied on the public character of the right-of-way to argue that its determination was legislative. The Supreme Court rejected that extension: public use answered the earlier constitutional objection, but did not classify the commission’s function under the later separation-of-powers framework.

B. Section-line highways and the burden of proving vacation

City of Sioux Falls v. Hone Fam. Tr., 1996 S.D. 126, 554 N.W.2d 825, and State v. Tracy, 539 N.W.2d 327 (S.D. 1995)

These cases establish that South Dakota section-line highways arise by operation of law. They supplied the starting point for analyzing the East Parcel: the Zirbels did not need to prove that officials had affirmatively created the original section-line highway.

Thormodsgard v. Wayne Twp. Bd. of Sup'rs., 310 N.W.2d 157 (S.D. 1981)

This was the principal authority governing continued existence and proof. It recognizes the presumption that a section-line highway remains public unless lawfully vacated or relocated, rejects mere nonuse or lack of improvement as sufficient proof of abandonment, and places the burden on the party opposing the established public way. It directly supported assigning the vacation burden to the Board on remand.

Lowe v. East Sioux Falls Quarry Co., 126 N.W. 609 (S.D. 1910)

The maxim “Once a road always a road,” subject to lawful vacation or abandonment, reinforced the continuity of an established public highway. Its significance was evidentiary and doctrinal: an unused route does not simply cease to exist.

Pederson v. Canton Twp., 34 N.W.2d 172 (1949)

Cited through the section-line authorities, this decision supports the requirement of affirmative governmental action to vacate or abandon a section-line right-of-way. It underscored why informal assumptions and legal memoranda were insufficient.

C. Quasi-judicial action and judicial review

Dep't of Game, Fish & Parks v. Troy Twp., 2017 S.D. 50, 900 N.W.2d 840

This is the foundational separation-of-powers precedent. It prevents courts from using statutory de novo appeals to assume essentially legislative or executive functions. It also supplies the functional comparison with ordinary court business. The present opinion applies that framework rather than creating an exception to it: statutory-access adjudication resembles judicial work and therefore permits a fresh trial.

MRose Dev. Co. v. Turner Cnty. Bd. of Cnty. Comm'rs, 2024 S.D. 28, 7 N.W.3d 685

This decision supplied the distinction between resolving existing rights under existing law and creating prospective rules. It also confirms that classification depends on the particular action taken. Its formulation closely matched the Board’s task of applying statutory access rights to identified owners and parcels.

Croell Redi-Mix, Inc. v. Pennington Cnty. Bd. of Comm'rs, 2017 S.D. 87, 905 N.W.2d 344

This precedent extends the separation-of-powers analysis to county commission appeals and recognizes a construction-permit decision as quasi-judicial. It demonstrates that a county’s involvement and an activity’s regulatory context do not themselves make a decision legislative.

Surat v. Am. Twp., Brule Cnty. Bd. of Supervisors, 2017 S.D. 69, 904 N.W.2d 61

The court cited this decision for the existence of different formulations of “quasi-judicial.” Its role was methodological: classification requires attention to functional characteristics rather than reliance on a single label.

Carmody v. Lake Cnty. Bd. of Comm'rs, 2020 S.D. 3, 938 N.W.2d 433

The circuit court relied on this case to classify the Board’s action as nonjudicial. Although the Supreme Court continued to cite its general framework, it expressly questioned whether its quasi-legislative classification accurately applied the governing separation-of-powers principles to the drainage dispute presented there.

The court observed that the earlier dispute contained familiar adjudicative features: private adversaries, existing legal standards, and a controversy resembling a court action. This is a significant caution about the precedent’s reach, but the opinion did not expressly overrule it.

Surat Farms, LLC v. Brule Cnty. Bd. of Comm'rs, 2017 S.D. 52, 901 N.W.2d 365

This decision classified a drainage dispute between two landowners as quasi-judicial. It supported both the private-dispute analogy in the present case and the court’s concern about inconsistent classification of comparable administrative disputes.

Little v. Hanson County Drainage Bd., 2022 S.D. 63, 981 N.W.2d 657

The court acknowledged that this decision had used an abuse-of-discretion standard in a drainage-permit matter. It explained, however, that the standard had not determined the outcome because the issues were largely procedural and collateral. That qualification limits the decision’s usefulness as a broad endorsement of deferential review for all drainage or county decisions.

Walgreen Co. v. Charnes, 819 P.2d 1039 (Colo. 1991)

This persuasive authority describes quasi-legislative action as general and prospective rather than focused on the parties before the decision-maker. It sharpened the contrast with the parcel-specific access adjudication.

D. County powers and professional valuation assistance

State ex rel. Bell v. Bd. of Comm'rs of Beadle Cnty., 300 N.W. 832 (S.D. 1941), and Pennington Cnty. v. State ex rel. Unified Jud. Sys., 2002 S.D. 31, 641 N.W.2d 127

These authorities establish the statutory limits on county power. They required the court to identify a lawful source of appraisal authority rather than assume counties possess an unrestricted power to incur expenses.

State ex rel. Jacobsen v. Hansen, 68 N.W.2d 480 (S.D. 1955), and Pearson v. Johnson, 238 N.W. 644 (S.D. 1931)

These cases recognize powers reasonably implied from express statutory duties. Together with SDCL 7-8-20(10), they provided the bridge between the Board’s express obligation to determine damages and its authority to obtain an appraisal reasonably necessary to perform that obligation.

E. Supporting constitutional and comparative authorities

Chicago, Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S. 226 (1897)

This case was cited for the application of the Fifth Amendment’s Takings Clause to the states through the Fourteenth Amendment. It identified the constitutional framework for the Zirbels’ federal claim, but did not resolve that claim because the court declined to reach the merits.

Tobias v. Dailey, 998 P.2d 1091 (Ariz. Ct. App. 2000), and In re Luloff, 512 N.W.2d 267 (Iowa 1994)

These cases appeared among the comparative authorities showing that other states place statutory private-access or access-condemnation proceedings in courts. They supported the institutional point that this type of dispute is suitable for judicial adjudication. The opinion did not adopt their particular substantive rules.

The court also used an easements treatise and historical scholarship to explain the bargaining problem faced by landlocked owners. Separately, it noted the state Administrative Procedures Act’s definition of a quasi-judicial function, while expressly declining to apply that definition to the county Board. These materials provided context rather than independent controlling rules.

5. Impact and Limits of the Decision

Stronger judicial fact-finding in statutory-access disputes

The principal practical change is the required form of judicial review. Applicants can obtain an independent evidentiary determination rather than face a review confined to administrative arbitrariness. Routes, compensation evidence, and statutory eligibility must be addressed through the circuit court’s own adjudicative process.

This does not guarantee a more favorable outcome for an applicant. A trial de novo may confirm the same route or compensation. It guarantees a different method of decision, not a particular substantive result.

A clearer sequence for evaluating access applications

Existing legal access must be resolved before a commission assumes that compulsory new access is necessary. Where section-line rights are disputed, historical governmental action must be established through competent evidence. Administrative legal advice cannot, by itself, extinguish a presumed public right-of-way.

More predictable allocation of appraisal expenses

Commissions may obtain appraisal assistance when reasonably necessary to assess the compelled burden on neighboring land. Applicants should anticipate that qualifying appraisal expenses can be charged to them. Counties, however, should document how the work relates to laying out the particular route and assessing its damages, because the invoice is not automatically recoverable in full.

Consequences beyond landlocked-access proceedings

The opinion reinforces a functional classification of governmental decisions. Its criticism of prior drainage-case analysis may influence future disputes involving permits, drainage, and individualized property rights. Nevertheless, the actual holding concerns determinations under SDCL 31-22-1 through -4; it does not make every county decision quasi-judicial.

Important matters left unresolved

• Whether the East Parcel’s section-line right-of-way was lawfully vacated.
• Whether that parcel ultimately qualifies as isolated under SDCL 31-22-1.
• The appropriate routes and final compensation amounts.
• The amount of appraisal expense properly attributable to the statutory proceedings.
• The merits of the constitutional takings challenge.

The opinion also did not endorse the appraiser’s highway-project methodology as the required damages formula. That methodology was part of the factual background, not a newly established valuation rule.

6. Complex Concepts Simplified

Trial de novo

A fresh judicial determination. The circuit court hears evidence and decides the dispute anew rather than merely checking the Board’s decision for serious error.

Abuse-of-discretion review

A deferential examination asking whether a decision was arbitrary or unreasonable, rather than independently choosing the correct result.

Quasi-judicial action

A governmental decision that functions like a court judgment: it applies existing law to facts and determines the rights of identifiable parties.

Quasi-legislative action

A governmental decision that functions like lawmaking, generally creating prospective policy rather than deciding an existing individual dispute.

Dominant and servient land

The dominant parcel benefits from access; the servient parcel carries the access route and the associated burden.

Easement of necessity

A common-law access right generally arising from the division of commonly owned land. Statutory access is a separate remedy and does not depend on the same common-grantor foundation.

Section-line right-of-way

A public highway corridor arising along a land-survey section boundary by operation of South Dakota law, unless lawfully vacated or relocated. It need not already contain an improved road.

Presumption and burden of proof

The law begins by treating an established section-line highway as continuing to exist. The party asserting its lawful elimination must prove that assertion.

Implied county power

Authority not expressly listed in a statute but reasonably necessary to perform an expressly assigned duty, such as obtaining valuation assistance to assess damages.

7. Conclusion

Zirbel v. Deuel County establishes that statutory landlocked-access determinations are adjudications of property rights, not exercises in general policymaking. An applicant’s appeal under SDCL 7-8-30 therefore requires a trial de novo.

The decision also reinforces two safeguards: existing section-line access cannot be disregarded without proof of lawful vacation, and appraisal expenses must have the statutory connection required for recovery. Its broader significance lies in matching the form of judicial review to the actual governmental function while preserving careful proof of access rights, compensation, and costs.