South Dakota statutes provide that in all cases where any person, group, or corporation, public or private, including the owners of water rights, ditches, flumes, reservoirs, and mining property under the provisions of the laws of Congress, invested with the privilege of taking or damaging private property for public use, in making, constructing, repairing, or using any work or improvement allowed by law, shall determine to exercise such privilege, it shall file a petition in the circuit court for the county in which the property to be taken or damaged is situated, praying that the just compensation to be made for such property may be ascertained by a jury[i].
A petition filed pursuant to § 21-35-1 shall name the person, group, or corporation desiring to take or damage private property as plaintiff, and all persons having interest in or liens upon the property affected by the proceeding as defendants, so far as they shall be known at the time of filing the same. It shall contain a description of the property to be taken or damaged. The purpose for which the property is to be taken or damaged shall be clearly set forth in the petition. It shall not be necessary to specify the interests or claims of the several defendants in the land or property affected by the proceeding[ii].
At any time after the filing of the petition, the plaintiff may file for record in the office of the register of deeds of the county in which the petition is filed a notice of the pendency of the proceeding, containing the names of the parties plaintiff and defendant, a statement of the purpose of the proceeding, and a description of the property through or over which the proposed improvement is to be constructed, which notice shall be recorded and indexed in the same manner as provided by law for the recording and indexing of notices of the pendency of actions in the circuit court, and from the date of the filing thereof shall be notice to all subsequent purchasers or encumbrancers of the property therein described[iii].
At any time after the filing of the petition the plaintiff may issue a summons to the defendants, which shall be entitled in the action or proceeding, and state the time and place of filing the petition, the nature of the proceeding, and contain a notice to the effect that if the defendants do not appear in said proceeding within thirty days from the service thereof, exclusive of the day of service, the plaintiff will apply to the court for an order to impanel a jury and ascertain the just compensation for the property proposed to be taken or damaged in such proceeding[iv].
If there are unknown owners or persons interested in the property to be taken or damaged, or if any of the defendants are not residents of the state, the plaintiff may apply to the court upon affidavit setting forth the nature of the proceeding, and the facts in relation to such unknown persons or nonresident defendants, for an order of publication of such summons, whereupon the court shall grant such order. The summons as published shall have annexed thereto a notice that if the defendants as to whom publication has been ordered do not appear in said proceeding within thirty days from the first publication thereof, the plaintiff will make application to the court for the order mentioned in the body of the summons. Such summons shall be published for thirty days at least once in each week in some newspaper published and of general circulation in the county where the proceeding is had, and each publication of the same shall show at the top thereof the date of the first publication, the proceeding of publication of the summons shall in all respects be governed by the provisions of Title 15 relating to publication of summons. Personal service on any defendant outside of the state shall be of the same effect as service within the state and shall dispense with necessity of publication as to such defendant[v].
If no appearance be made by any defendant within the time specified in the summons, the plaintiff, upon affidavit of the default, may apply to the court for an order directing the clerk of courts to draw and summon eighteen jurors to attend at the courthouse or place of holding the circuit court of the county, at a time to be specified in such order. Said jurors shall be drawn and summoned in the same manner as jurors are drawn and summoned for a regular or special term of the circuit court[vi]. At the time and place specified in the order made pursuant to § 21-35-12, a special term of the court shall be held, at which the proceedings in impanelling the jury, trial and rendering of the verdict or verdicts shall be conducted in the same manner as in civil actions, except that every defendant shall have the same rights and privileges, upon such trial, to challenge jurors and examine and cross-examine witnesses and participate therein, by himself/herself or attorney, as a defendant in a civil action who has appeared and answered.
As to all the defendants who appear within the time specified in the summons, the proceeding shall be conducted in like manner, except that three days’ notice of the time and place of trial may be given by either party and the case brought on for trial at any regular or special term of court called for such purpose, and on the failure of the plaintiff, after such notice, to proceed with the trial, said petition shall be dismissed as to such defendant, and any lis pendens involving the title of property of such defendant shall be discharged and no other proceeding for the same purpose shall be brought by the plaintiff against such defendant until after the expiration of one year, and then only by leave of the court upon good cause shown and upon the condition that the plaintiff will, in good faith, prosecute such proceeding against such defendant with reasonable diligence[vii].
The only issue that shall be tried by the jury upon the petition shall be the amount of compensation to be paid for the property taken or damaged[viii]. If the compensation for all the property taken or damaged is ascertained by the jury upon one trial, they shall ascertain and return in their verdict the compensation to be paid for each distinct lot or parcel of land or property taken or damaged[ix]. Upon the return of the verdict the court shall order the same to be recorded, and shall enter such judgment thereon as the nature of the case may require, and that the plaintiff pay to the persons entitled thereto the amount of compensation ascertained by the verdict or deposit the same as the court may direct[x].
Appeals shall be allowed in all cases to the Supreme Court, the same as in other civil actions, but the prosecution of such an appeal shall not prevent or delay the work or improvement involved; provided the plaintiff shall deposit with the clerk of courts, for the use and benefit of the appellant such sum as shall be awarded by the verdict and shall give to the appellant a bond in such sum as the court shall direct, to secure the payment of any additional sum which may be awarded to the appellant in the future proceedings therein[xi]. If any eminent domain proceedings are commenced to take or damage any private property for public use within this state and are thereafter dismissed with or without prejudice, the plaintiff seeking to be condemnor is liable for and shall pay to the defendant all court costs, expenses and fees, including reasonable attorney fees, as are determined by the court having jurisdiction over the proceedings[xii].
If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter is twenty percent greater than the plaintiff’s final offer which shall be filed with the court having jurisdiction over the action at the time trial is commenced, and if that total award exceeds seven hundred dollars, the court shall, in addition to such taxable costs as are allowed by law, allow reasonable attorney fees and compensation for not more than two expert witnesses, all as determined by the court[xiii].
In proceedings initiated against corporations, associations or other entities engaged in the operation of electric utilities, gas utilities or railroads and when those proceedings are for the purpose of constructing pipelines designed to carry water for the transportation of coal, the petitioner may file any time before final judicial determination of the rights of the parties, a declaration of taking, signed by the petitioner, declaring the extent of the property interest taken for the use of the petitioner. The declaration of taking shall contain:
- A statement of the authority under which and the use for which the property interest is taken;
- A description of the property interest taken sufficient for identification thereof;
- A legal description of the lands subject to the taking;
- The name of all persons or entities claiming an interest in the said lands, and a description of the interest claimed by each;
- A statement of the sum of money estimated by the acquiring authority to be just compensation for the property interest taken and damaged; and
- A detailed appraisal upon which the amount of the petitioner’s deposit is based[xiv].
Upon filing of a declaration of taking pursuant to § 21-35-24, the court has power to fix the time within which and the terms upon which the parties in possession are required to surrender possession to the petitioner. A notice shall be issued stating that if the defendants do not appear in or respond to the proceedings within thirty days after service of the notice, exclusive of the day of service, the petitioner shall apply to the court for an order of possession. A notice of hearing shall then be issued by the court and served as provided in § 21-35-27 upon the recorded owners of all lands sought to be acquired or damaged. The notice shall state a time and place for a hearing not less than thirty days from the date of service, unless the waiver of hearing provided by § 21-35-10.1 is filed, in which case the hearing may be held sooner. The court may make orders in respect to encumbrances, liens, rents, taxes, assessments, insurance and other charges, if any, as are just and equitable[xv].
If the petitioner elects to utilize the procedures set forth in §§ 21-35-24 to 21-35-28, inclusive, for possession of property, the petitioner shall deposit with the court the money required by § 21-35-25 as a condition to the exercise of such power. In that case, the court and the attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. However, the defendant may demand a hearing on the petitioner’s right to take as provided in § 21-35-10.1[xvi].
Upon application of the parties in interest, the court may order that all of the money deposited in court pursuant to § 21-35-29, or any part thereof, be paid for or on account of the just compensation to be awarded in the proceeding. If the compensation finally awarded for the property interest taken, or any parcel thereof, exceeds the amount of money received by any person so entitled, the court shall enter judgment against the petitioner for the amount of the deficiency[xvii].
[i] S.D. Codified Laws § 21-35-1.
[ii] S.D. Codified Laws § 21-35-2.
[iii] S.D. Codified Laws § 21-35-8.
[iv] S.D. Codified Laws § 21-35-9.
[v] S.D. Codified Laws § 21-35-10.
[vi] S.D. Codified Laws § 21-35-12.
[vii] S.D. Codified Laws § 21-35-13.
[viii] S.D. Codified Laws § 21-35-15.
[ix] S.D. Codified Laws § 21-35-18.
[x] S.D. Codified Laws § 21-35-19.
[xi] S.D. Codified Laws § 21-35-20.
[xii] S.D. Codified Laws § 21-35-22.
[xiii] S.D. Codified Laws § 21-35-23.
[xiv] S.D. Codified Laws § 21-35-24.
[xv] S.D. Codified Laws § 21-35-26.
[xvi] S.D. Codified Laws § 21-35-29.
[xvii] S.D. Codified Laws § 21-35-30.