author: MEIERHENRY, Justice.

text:
    2003 SD 98
    WILDWOOD ASSOCIATION, a South Dakota not for profit corporation; John G. Spangler; John M. Weiss; Timothy L. Skinner and Donna L. Skinner; James A. Oswald and Helen I. Oswald; Daniel J. Finn, Jr. and Melinda Finn, Plaintiffs and Appellees, v. HARLEY F. TAYLOR, INC., a South Dakota corporation and Red Rock Development Company, LLC, a South Dakota Limited Corporation, Defendants and Appellants, Leo Hamm Family Ranch, LLC, a South Dakota Limited Liability Company; Pennie Lou Slovek, Kellie Sue Weisgram and Shellie Lynn Parker, Defendants and Appellants, The City of Rapid City, a Municipal Corporation, Defendant and Appellant.
    Nos. 22538, 22539, 22540.
    Supreme Court of South Dakota.
    Argued April 29, 2003.
    Decided Aug. 6, 2003.

      Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpen-' ter, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.
    Terry G. Westergaard of Bangs, McCul-len, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for appellants Harley F. Taylor and Red Rock Development Co.
    Jerry D. Johnson of Banks, Johnson, Colbath & Kerr, Rapid City, South Dakota, Attorneys for appellants Leo Hamm Family Ranch, Pennie Lou Slovek, Kellie Sue Weisgram and Shellie Lynn Parker.
    Adam Altman, City Attorney, Michael S. Booher, Assistant City Attorney, Rapid City, South Dakota, Attorneys for appellant City of Rapid City.
   MEIERHENRY, Justice.

[¶ 1.] Wildwood Association (Wildwood) brought an action seeking declaratory judgment and injunctive relief against City of Rapid City (City), Harley F. Taylor, Inc. (Taylor), Red Rock Development Co., LLC (Red Rock), Leo Hamm Ranch, LLC (Hamm), and Slovek, Weisgram and Parker, daughters of Leo Hamm (daughters)(collectively Defendants). Wildwood petitioned the court to determine if the section line had been vacated, if the access easement was public and if the easement was appurtenant. While this action was pending, the City filed a condemnation action to take the easement at issue. The trial court consolidated the actions for trial. Defendants appeal the trial court’s findings (1) that the section line had been vacated, (2) that the access easement was a private easement and (3) that the private easement was for personal use. We reverse issue one and affirm issues two and three.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] Wildwood Subdivision was originally developed in 1977 and 1978. The actual plat of Wildwood was approved in 1978. The 1978 plat depicts a section line and the north thirty-three feet of the section line right-of-way between section 21 and section 28. The section line right-of-way between section 21 and section 28 was unimproved. The 1978 plat did not include any property south of the section line. The section line is the southern boundary to Wildwood lots 19, 20, 21, 22, and 23. The 1978 plat also indicates an access easement which runs across lot 23, which is owned by Daniel and Melinda Finn. The access easement and the section line highway are known as Shooting Star Trail.

[¶ 3.] On May 21, 1979, Wildwood was re-platted. Lots 18, 19, 20, and 21 along with other additions to Wildwood were platted and approved by the Common Council of the City of Rapid City. Although Wildwood was not annexed into the City at this time, it was within the City’s three-mile extra-territorial jurisdiction. On the 1979 plat, neither the north nor the south section line right-of-way was shown. When the City annexed the Wildwood subdivision in 1984, the annexation map indicated the entire area to be annexed but did not show the section line.

[¶ 4.] The status of the section line and access easement became an issue when the City initiated a plan to annex Red Rock. In 1999, Red Rock began submitting development requests to the City. Red Rock proposed a 360-acre planned unit development. The development consisted of 280 single-family lots and 80 multi-family lots plus an 18 hole golf course. In order for the City to provide municipal services including water and sewer to the development, Red Rock needed to be annexed. However, Red Rock was not contiguous to the City as required for annexation. To solve this problem, Red Rock approached Leo Hamm about annexing sixty acres of his property which adjoined Red Rock and the City. Ultimately an. agreement was struck with Hamm in which Red Rock would pay him $50,000 in exchange for his acquiescence to annex sixty acres of his property. As part of the agreement, the City would grade the section-line road at issue along, the northern boundary of Hamm’s property to meet City specifications. Also the City agreed to acquire a public right-of-way across lot 23 from Wildwood to the section line road. On July 10, 2000, the City council passed a resolution indicating that it was in the public interest to annex the property. The City included in the resolution its intent to acquire the sixty-six foot wide easement on lot 23 and to dedicate the easement as a public right-of-way at the City’s expense. The resolution also incorporated the City’s promise to construct at least a twenty-eight foot roadway on the section line in accordance with City standards.

[¶ 5.] The residents of Wildwood first became aware of the proposed section line road when the City began construction. Wildwood Association commenced a declaratory judgment action seeking to ascertain the legal status of the section line and access easement and requested injunc-tive relief. The trial court ruled in favor of Wildwood finding that the section line-easement had been vacated and that the sixty-six foot access easement was a private easement personal to Hamm and Taylor. Red Rock, Taylor, Hamm and the City appeal raising the following issues:

1. Whether the section line was vacated by the appropriate governmental authority.
2. Whether the trial court erred in finding that the access easement was private.
3. Whether the trial court erred in finding that the access easement was personal only to Hamm and Taylor.

STANDARD OF REVIEW

[¶6.] Findings of fact are reviewed under a clearly erroneous standard. City of Sioux Falls v. Hone Family Trust, 1996 SD 126, ¶ 6, 554 N.W.2d 825, 826. “Clear error means, ‘after a review of all the evidence,’ we are left with a definite and firm conviction that a mistake has been made.” Id.; Fanning v. Iversen, 535 N.W.2d 770, 773 (S.D.1995) (quoting Cordell v. Codington County, 526 N.W.2d 115, 116 (S.D.1994)).

DECISION

1. Whether the section line was vacated by the appropriate governmental authority.

[¶ 7.] Defendants claim that the section line easement was not vacated because there was no affirmative action by the appropriate governmental authority. The trial court found that the section line was vacated by the Common Council of the City of Rapid City in connection with the approval of the 1978 plat and the subsequent annexation of the Wildwood Subdivision.

[¶ 8.] Historically, the section line was established by congressional action. In 1866, Congress declared that: “ ‘The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.’ ” Costain v. Turner County, 72 S.D. 427, 36 N.W.2d 382, 383 (1949) (quoting § 8, Ch 262, 14 Stat 253, 43 USCA § 932). Thereafter the legislature of the Dakota Territory enacted Ch 33 SL 1870-1871 stating: “That hereafter all section lines in this Territory shall be and are hereby declared public highways as far as practicable. Today SDCL 31-18-1 provides:

There is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board, or tribunal.

Every section line shall be sixty-six feet wide with thirty-three feet on each side of the section line. SDCL 31-18-2.

[¶9.] Neither party disputes that the 1978 plat clearly sets forth a section line and thirty-three feet section line easement dedicated to the public. However, the parties dispute whether the approval of the 1979 plat without the section line easement was sufficient governmental action to extinguish the section line easement. On the 1978 plat, lots 17-21 were drawn but not shown as platted. The 1979 plat depicted the lots as platted and clearly identified the section line running along the southern boundary of lots 19-21 but did not identify the section line easement. Wildwood claims that the approval of the 1979 plat vacated the section line easement shown on the 1978 plat.

[¶ 10.] In order for a previously recorded plat to be vacated by fifing'a new plat, compliance with the statutory requirements set forth in SDCL Ch 11-3 is necessary. SDCL 11-3-20.2 provides:

The new plat shall specifically describe all previous plats sought to be vacated including the book and page or document number of all existing plats in the register of deeds office. The new plat shall specifically state that all previous plats so fisted are to be vacated in whole or in part. The new plat shall comply with the public highway provisions of §' 11-3-17.

If a plat is filed and is intended to vacate a previous plat, the register of deeds shall write “vacated” across that portion of the plat so vacated and make reference on the plat to the volume and page number in which the instrument of vacation is located. SDCL 11-3-18. The 1979 plat is void of any marking vacating the 1978 plat. Furthermore, this Court recently stated in Hofmeister v. Sparks, that the fifing of a new plat does not automatically vacate a prior plat. 2003 SD 35, ¶ 4, 660 N.W.2d 637, 639. Another case involving a dispute of whether a section fine was vacated was Millard v. City of Sioux Falls, 1999 SD 18, 589 N.W.2d 217. In Millard, the city and county approved a “plat” which did not show the section fine easement. This Court determined that the section fine easement still existed because the county had not previously taken steps to vacate it. Id. at ¶ 16. We held that the “sectionline easement was created by operation of law and no affirmative action was taken to vacate it.” Id. at ¶ 28. “[AJbsent annexation, specific affirmative action must be taken by an appropriate government authority to vacate a section-line right-of-way.” Id. at ¶ 24. The mere approval of a plat by the county and city is not enough to vacate a section fine. Id. at ¶ 16.

[¶ 11.] Prior to the City’s annexation, the County was .the governmental entity with authority to vacate the section line. SDCL 31-18-3. Before a County can vacate a section line, the law requires that the Department of Transportation must grant approval. SDCL 31-3-19. Once approval is obtained from the Department of Transportation, any change shall be noted on the map of the county highway system in the office of the county auditor and on the map in the Department of Transportation. SDCL 31-12-2. Here, there is no evidence of county action to vacate the section line. Therefore, the section line easement was still in existence as depicted on the 1978 plat when the property was annexed by the City in 1984.

[¶ 12.] Wildwood asserts that if the section line easement was not vacated prior to annexation, the City’s annexation vacated it because the annexation map did not depict a section line right-of-way. The trial court, relying on Hone, determined that the City vacated the section line by annexing the property. 1996 SD 126, 554 N.W.2d 825. We find Hone distinguishable. In Hone, the City of Sioux Falls annexed Country Club Heights in 1952. Id. at ¶ 8. The Court found that prior to the annexation, the City of Sioux Falls had vacated the section line. Id. at ¶ 9. In the present case the section line was not vacated prior to the annexation proceeding.

[¶ 13.] Although the annexation map does not show the section line easement, SDCL 9-4-11 only requires a “map” of the territory. It states:

Whenever the limits of any municipality are changed by a resolution of the governing body or by a decree of court it shall be the duty of the mayor or the president of the board of trustees to cause an accurate map of such territory, together with a copy of the resolution or decree duly certified, to be recorded in the office of the register of deeds of the county or counties in which such territory is situated, and thereupon such territory shall become and be a part of such municipality or be excluded therefrom as the case may be.

The City submitted a map of the territory, it did not submit a “plat” of the territory to be annexed. Because the annexation map does not have the detail of a plat, the legal descriptions of the property annexed must be determined by examining the plat filed with the register of deeds for that parcel of property. Thus we must refer to the 1978 and 1979 plat which did not vacate the section line easement. Consequently, when Wildwood was annexed, the section line easement was still in existence. The City could not have vacated the section line easement by annexing Wildwood since the easement was still portrayed on the relevant plat of the property in question.

[¶ 14.] To vacate the section line at the time of annexation, there needed to be some affirmative action on the part of the City. In Millard, the Court held that when the property was annexed to the city, the city vacated the section line by the affirmative action of establishing a street where the section line had been. 1999 SD 18, ¶ 23, 589 N.W.2d at 220. In the present case, the City took no action from which to infer that it intended to vacate the section line. We reverse on issue one.

2. Whether the trial court erred in finding that the access easement was private.

[¶ 15.] Defendants argue that the sixty-six foot easement running across lot 23 on the 1978 plat was impliedly dedicated to the public. The trial court found that the sixty-six foot access easement was a private easement. The question of whether an easement is private or public is a factual issue to be reviewed under a clearly erroneous standard. Kokesh v. Running, 2002 SD 126, ¶ 10, 652 N.W.2d 790, 793.

[¶ 16.] A dedication may occur by express grant or by legal implication. Brown v. Bd. of County Comm’rs for Pennington County, 422 N.W.2d 440, 442 (S.D.1988) (citation omitted). A dedication is implied where “it arises by operation of law from the owner’s conduct and the facts and circumstances of the case.” Tinaglia v. Ittzes, 257 N.W.2d 724, 729 (S.D.1977) (quoting McQuillin, Municipal Corporations § 33.02 (3rd Rev.Ed.). “[W]hat amounts to a dedication by implication depends upon the facts of the, particular case, and no hard and fast rule can be laid down as' a guide for the courts.” Smith v. Sponheim, 399 N.W.2d 899, 902 (S.D.1987) (quoting Evans v. City of Brookings, 41 S.D. 225, 229, 170 N.W. 133, 134 (1918) (citations omitted)).

[¶ 17.] Defendants contend that the dedication to the public is implied because the sixty-six foot easement connects the section line highway to Una Del Drive and Wildwood, both dedicated public streets. Defendants rely on Atlas Lumber Co. v. Quirk, 28 S.D. 643, 135 N.W. 172 (1912). In Atlas, this Court determined that when an unmarked space on a plat extends from an existing dedicated public street, the unmarked portion is presumed also to be dedicated to public use.

‘Naturally the presumption is that one who records a plat and marks upon it spaces that appear to form no part of any platted lots dedicates the land represented by the spaces thus excluded to a public use;’ and where there is left on a plat spaces not designated as a street, but which follow the line of a river, or where they follow the line as apparent extensions of other streets already in existence, it is held to constitute a .dedication as a street of the undesignated portion of the plat.

Id. at 174-75 (citations omitted). In Selway Homeowners Ass’n v. Cummings, 2003 SD 11, 657 N.W.2d 307, we determined that a right-of-way labeled 66’ R.O.W. (Future Use) was not dedicated to the public. We held that the presumptions set forth in Atlas did not control as there was “convincing proof of contrary intent by a grantor.” Id. at ¶ 23. A careful analysis of the plat in Selway, indicated that the ‘future use right-of-way’ was not dedicated and was separate from the dedicated main road. Id.

[¶ 18.] The presumptions in Atlas are inapplicable here as well. The plat clearly indicates that the sixty-six foot right-of-way was not dedicated to the public. The plat specifically lists Wildwood Drive, Alpine Court, Greenleaf Court and Vanishing Trail Court as dedicated public right-of-ways. The section line easement is dedicated to the public with specific language on the plat that states, “area dedicated to the public right-of-way.” In contrast, the sixty-six foot access easement is not included in the list of roads dedicated to the public nor is there any language on the plat near the access easement suggesting that the access easement was dedicated to the public. Notably, the access easement is clearly distinguished from the dedicated public roads. It does not follow a line indicating an extension of already existing streets, and it is marked on the plat as part of lot 23. If it was dedicated for public use, the intention to dedicate had to be clear and may be shown by “deed, words, or acts.” Sponheim, 399 N.W.2d at 901. Evidence at trial revealed that Hamm, one of the individuals who signed the 1978 plat, publicly stated that-it was a “private easement” “set up for people who had property back there to access it.” Around 1985, Hamm had tried to purchase the private easement from the owners of the lot in order to dedicate it for public use. Also, the city attorney at a public meeting made statements that “their research indicated it was a private easement.”

[¶ 19.] The evidence failed to establish that the sixty-six foot access easement across lot 23 was dedicated to the public. We affirm the trial court on issue two.

3. Whether the trial court erred in finding the access easement personal only to Hamm and Taylor.

[¶ 20.] An easement may be created by written grants, pursuant to plats or by force of law. Kokesh, 2002 SD 126, ¶ 12, 652 N.W.2d at 793 (citing Knight v. Madison, 2001 SD 120, ¶ 6, 634 N.W.2d 540, 542; Cleveland v. Tinaglia, 1998 SD 91, ¶ 18, 582 N.W.2d 720, 724; Tan Corp. v. Johnson, 1996 SD 128, ¶ 13, 555 N.W.2d 613, 616). The servitude of an easement is controlled by the terms of the grant and nature of use. Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542. “[N]either the physical size nor the purpose or use to which an easement may be put can be expanded or enlarged beyond the terms of the grant of the easement.” Id.; See Townsend v. Yankton Super 8 Motel, 371 N.W.2d 162, 165-66 (S.D.1985). An easement created by an express grant is controlled by the words of the grant, its physical size and the nature of use. Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542. “The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement.” SDCL 43-13-3. An easement appurtenant runs with the land and serves the dominant estate.. 25 Am-Jur2d Easements and Licenses § 10 (updated 2003).

[¶ 21.] In order to determine the nature and extent of the easement, we look to the terms of the grant, the plat, and the nature of its use. When Ted Hamm, the original owner, transferred the property, the terms of the grant as expressed in the addendum to the 1977 purchase agreement, indicated that the seller wished to reserve and improve the easement.

The buyers agree the seller may reserve on the above described property, a 66' easement starting at the SW corner of Una Del' Drive, running southwesterly along the existing trail 150' to the south line of said Section 21.
As further consideration, Buyers agree to allow Seller the use of Buyer’s bulldozer to improve the above easement for a period not exceeding four (4) hours in duration at a time convenient to Buyers. Seller agrees to direct the operations of said work.

Although the addendum permitted the seller to reserve the easement, the warranty deed from Ted Hamm to Finn’s predecessors made no reference to the easement nor did it specifically define a reservation to the seller. The 1978 plat showed the easement and labeled it a “66' access easement.” None of the written instruments identify a dominant tenement to which the easement is appurtenant.

[¶22.] Hamm asserts that the easement is appurtenant to all land west of Wildwood Subdivision. Taylor and Red Rock assert that the dominant tenement is west and south of the access easement. The party claiming the easement has the burden of proof. Cf. Thompson v. E.I.G. Palace Mall, LLC, 2003 SD 12, ¶ 14, 657 N.W.2d 300, 305 (to establish an easement by implication from prior use the burden of proof is on the claimant). Neither the addendum to the purchase agreement nor the original plat identifies a dominant tenement. Hamm, Taylor and Red Rock failed to identify the dominant estate beyond unsupported vague generalities. Additionally, the access easement was marked by a private drive sign and had a chain blocking its entrance indicating it was for personal use only. The trial court found that the use of the easement was limited to Leo Hamm and his immediate family and Harley Taylor and his immediate family only to access the properties they own in section 28 and section 21. Based on the evidence, we cannot say the trial court erred in finding that the sixty-six foot access easement was a private easement for personal use. We affirm the trial court on issue three.

[¶ 23.] GILBERTSON, Chief Justice, and SABERS and ZINTER, Justices, and SRSTKA, Circuit Court Judge, concur.

[¶ 24.] SRSTKA, Circuit Court Judge, sitting for KONENKAMP, Justice, disqualified.

      . See City of Rapid City v. Finn, 2003 SD 97, 668 N.W.2d 324, 2003 WL 21805613 (S.D.2003).

      . See Arthur L. Rusch, Douville v. Christensen: An Answer to the Issue of Township Responsibility for the Improvement of Section Line Rights of Way, 48 SD L Rev 247(2003) (discussing the existence of public roads along every section line and the issues of maintenance by the governing body).

      . SDCL 31-18-3 provides:
      The board of county commissioners may vacate or change the location of any section-line highway within its county and the board of supervisors of an organized township may vacate or change the location of any section-line highway within its township, as provided in this title, but neither board may vacate or change any portion of the state trunk highway system or any highway constructed by state or federal aid or any highway within the limits of a municipal corporation, nor may a board of supervisors vacate or change any portion of the county highway system. In addition, no board of county commissioners or board of supervisors may vacate a section-line highway which provides access to public lands. This section does not prohibit the closing of a section-line highway to vehicular traffic if the highway is unsafe for vehicular traffic. For the purposes of this section, public land does not include any school and public lands.


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2003 SD 96
    MOONLIGHT ROSE COMPANY, Appellant, v. SOUTH DAKOTA UNEMPLOYMENT INSURANCE DIVISION, South Dakota Department of Labor, Appellee.
    No. 22350.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 8, 2002.
    Decided Aug. 6, 2003.

      Thomas K. Wilka of Hagen, Wilka & Archer, Sioux Falls, SD, for appellant.
    Lawrence E. Long, Attorney General, Pierre, SD, Drew C. Johnson, Special Assistant Attorney General, Aberdeen, SD, for appellee.
   ZINTER, Justice.

[¶ 1.] Moonlight Rose Company (Moonlight) appeals from a circuit court decision affirming a decision of the Department of Labor. Both concluded that Moonlight’s retail rose sellers were employees, rather than independent contractors. Therefore, Moonlight was required to make contributions to the unemployment insurance compensation fund. Wé affirm.

FACTS

[¶ 2.] Moonlight entered into written agreements with Dan Long, Lana Dyks-horn, Wendy Albers and Renee Hagedorn (sellers). The agreements required Moonlight to provide roses, flower tubes, unir forms and sales materials to the sellers. Sellers were required to use those supplies to sell roses to customers in bars and restaurants in and around Sioux Falls. The sellers’ compensation was the difference between Moonlight’s suggested sales price of $8.50 and the $2.51 the sellers were required to remit to Moonlight for each rose sold. Although the agreement provided that Moonlight had the right to establish the price at which the roses would be sold, testimony at the hearing indicated that sellers were allowed to set their own price. The sellers were not, however, liable for flowers they did not sell as long as the flowers were returned to Moonlight undamaged. Whenever there were two or more sellers working the same evening, Moonlight would suggest sales routes to prevent the sellers from covering the same area. The agreements also contained a clause prohibiting the sellers from selling for others or from “competing] with [Moonlight] for a period of two years following the termination of [the] Agreement.” The non-compete area included Minnehaha, Lincoln and Brook-ings counties, or “within a 70 mile radius thereof.”

[¶ 3.] Although each seller had a peddler’s license issued by the City of Sioux Falls, no seller had a sales tax license. Instead, Moonlight paid the sales tax under its license. The sellers did not advertise to increase rose sales, did not have a “place of business” for selling roses, and did not have business cards representing themselves as rose sellers. None of the sellers engaged in any independent rose selling business for themselves or for any other company. Three of the four sellers had other unrelated employment during the time they sold roses for Moonlight, and Hagedorn owned an unrelated, independent business.

[¶ 4.] The South Dakota Unemployment Insurance Division (SDUID) determined that Moonlight’s sellers were “employees and must be reported for state unemployment insurance tax purposes.” Moonlight appealed SDUID’s determination. A hearing examiner and the circuit court upheld SDUID’s decision. Moonlight now appeals raising one issue:

Whether Moonlight’s sellers were independent contractors under SDCL 61-1-11, thereby exempting Moonlight from contributing to the unemployment compensation fund.

STANDARD OF REVIEW

[¶ 5.] Our standard of review, delineated in SDCL 1-26-36, is settled. We must:

[G]ive great weight to the findings and inferences made by the Department on factual questions. We examine agency findings in the same manner as the circuit court to decide whether they were clearly erroneous in light of all the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course, are fully reviewable.

Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228 (internal citations omitted). The determination of employee or independent contractor status, for purposes of unemployment insurance, is a mixed question of law and fact. It is fully reviewable by this Court. Egemo v. Flores, 470 N.W.2d 817, 820 (S.D.1991).

DECISION

[¶6.] Moonlight argues 1) that six of the hearing examiner’s findings of fact are clearly erroneous; and 2) that its sellers qualify as independent contractors under SDCL 61-1-11.

I.

Clearly Erroneous Findings of Fact

[¶7.] Moonlight first argues that administrative Findings of Fact 3 and 6 are clearly erroneous. These findings state:

3. Under the written agreement, Moonlight Rose agrees to provide the Agents with all flowers, tubes, uniforms and sales materials at no cost to the Agents. Moonlight Rose and the Agents further agree that Moonlight Rose establishes the price at which the products are to be sold, and the Agents are expected to remit 75 percent of the price for each flower sold to Moonlight Rose at the end of each night’s business. 6. Under the written agreement, the Agents further agree that they will not compete with Moonlight Rose for a period of two years following the termination of the agreement within Minne-haha, Lincoln, and Brookings Counties, or within a 70 mile radius of these counties.

The hearing examiner based these findings on the employment agreement. We have reviewed that agreement and agree that it supports the findings.

[¶ 8.] Nevertheless, Moonlight argues that the non-compete clause mentioned in Finding 6 is void and therefore should not be considered. However, the enforceability of the non-compete clause is irrelevant for purposes of this appeal. What is relevant is the fact that the non-compete language used by Moonlight evinces its intent to prevent the sellers from engaging in independent work of the same nature if their relationship with Moonlight terminates. The clause is relevant because it is evidence that sellers were not engaged in an independently established trade or business. See ¶ 17, infra.

[¶ 9.] Moonlight next argues that Findings of Fact 11 and 16 are clearly erroneous in light of the testimony presented at the administrative hearing. Finding 11 states:

11. Because the Agents do not have coolers in which to store flowers for a long period, he or she picks up the flowers at Moonlight Rose’s place of business each evening that he or she is going to sell. Agnes Hoff, the owner of Moonlight Rose, instructs each Agent where to sell flowers that evening if there is more than one agent selling that evening.

[¶ 10.] Moonlight argues Agnes Hoff does not “instruct” each seller where to sell flowers each evening if there is more than one person selling. However, before the administrative hearing, Hoff filled out a SDUID questionnaire that asked, “does the firm assign a specific territory to the worker?” Hoff answered in the affirmative. Notwithstanding that answer, Hoff testified at the administrative hearing that “I have suggested routes, different sales people work different routes.” Relying on this testimony, Moonlight argues that Finding 11 is clearly erroneous. It claims that Hoff merely “suggested,” rather than “assigned” routes. However, in light of Hoffs written answer, Finding of Fact 11 is not clearly erroneous.

[¶ 11.] Finding of Fact 16 states: 16. Moonlight Rose provides one uniform to each Agent, coolers in which to transport the flowers for the evening, baskets in which to carry the flowers into the establishments, and a nametag. The nametag bears the name of the Agent and Moonlight Rose. Moonlight Rose requires the Agent to wear a tuxedo uniform, however, Agents can make some modifications to that tuxedo uniform.

Moonlight argues that this finding is misleading because it only supplied the tubes, coolers and baskets “as a convenience.” However, Moonlight’s written agreement unequivocally states that Moonlight “agrees to provide [the sellers] with all flowers, tubes, uniforms and sales materials at no cost to [seller].” Considering Moonlight’s written agreement, Finding 16 is not clearly erroneous.

[¶ 12.] Moonlight also argues that it did not “require” the sellers to wear its uniform (the tuxedo). Moonlight relies on the hearing testimony of Hagedorn who stated that Moonlight only “suggested” that they wear the tuxedo. Again, however, Moonlight’s employment agreement provided that Moonlight “agrees to provide [sellers] ... uniforms ... at no cost to [the seller].” Furthermore, although each seller testified that Moonlight did not require them to wear the tuxedo, the sellers further testified that they did wear the tuxedo or some similar attire.

[¶ 13.] Moonlight finally argues that although Findings of Fact 19 and 23 are technically correct, the findings are misleading. Those findings state:

19. Albers, Long, Dykshorn, and Hage-dorn do not have coolers or baskets in which to store or transport flowers, do not have business cards, and do not advertise under any business listing.
23. The Agents do not have sales tax licenses. Moonlight Rose pays the sales tax due on the sale of the roses.

[¶ 14.] Although Moonlight challenges Findings 19 and 23, it provided no evidence that all of its sellers had their own baskets or business cards. Additionally, sellers testified that they did not advertise, nor did they have their own business listings. Finally, the evidence established that sellers did not have their own sales tax license. Moonlight paid the taxes under its sales tax license until this dispute started, at which time sellers attempted to obtain sales tax licenses. Findings of Fact 19 and 23 are not clearly erroneous.

II.

“Employees” versus “Independent Contractors” Under SDCL 61-1-11.

[¶ 15.] SDCL 61-1-11 lists the requirements necessary to establish entitlement to independent contractor status for purposes of unemployment insurance. The statute provides:

Service performed by an individual for wages is employment subject to this title unless and until it is shown to the satisfaction of the department of labor that:
(1) The individual has been and will continue to be free from control or direction over the performance of the service, both under his contract of service and in fact; and
(2) The individual is customarily engaged in an independently established trade, occupation, profession or business.

[¶ 16.] A two-part burden of proof applies to determine employee/independent contractor status under SDCL 61-1-11. Appeal of Hendrickson’s Health Care Service, 462 N.W.2d 656, 658 (S.D.1990) (additional citations omitted). First, the Department of Labor has the burden to show that the alleged employees provide services for wages. Id. Once the Department establishes this threshold showing, the burden shifts to the employer to prove:

[T]hat the employee meets the elements outlined in both subdivisions (1) and (2) of SDCL 61-1-11, i.e., that the individual performing services is free from a certain degree of direction and control and that the individual is customarily engaged in an independently established trade or business. The burden is on the employer, “to prove the employees are independent contractors under the elements of SDCL 61-1-11.”

Shoppers Guide v. Department of Labor, 1996 SD 92, ¶ 8, 551 N.W.2d 584, 586 (quoting Hendrickson, 462 N.W.2d at 658). Because we find that Moonlight failed to satisfy its burden of establishing the second requirement — that its sellers were engaged in an independent business under SDCL 61-1-11(2) — we do not reach the “freedom from control” issue under SDCL 61-1-11(1).

Independently Established Trade or Business

[¶ 17.] In order to meet its burden under SDCL 61-1-11(2), Moonlight must show that the sellers:

1.were engaged in an enterprise that was created and exists apart from their relationship with Moonlight and that the enterprise would survive the termination of that relationship;
2. have a proprietary interest in the enterprise to the extent that they can operate without hindrance from any other individual;
3. due to their skill, are engaged in an economic enterprise such that the sellers bear the risk of unemployment; and
4. remain employed as a function of market forces and the demand for the sellers’ skills, rather than the response of an employer to similar economic realities.

See Davis v. Frizzell, 504 N.W.2d 330, 331-32 (S.D.1993) (citing Hendrickson, 462 N.W.2d at 659). All four prongs of this test, either explicitly or implicitly, require that the individual have some relationship with an economic enterprise that is independent of the relationship with the company that is allegedly subject to unemployment insurance taxation.

[¶ 18.] Our decision in Hendrickson, 462 N.W.2d 655, provides guidance on this issue. Hendrickson’s Health Care Services (HHCS) provided in-home nursing services to its clients. HHCS maintained a list of available nurses and nurse’s aids with varying skill levels. Id. at 656. When a client contacted HHCS, the health care provider consulted the list to choose a nurse with skills adequate to care for that client. Id. The nurse could choose whether to accept the referral, and if accepted, the nurse and client determined the nurse’s work schedule and scope of duties. Id.

[¶ 19.] In Hendrickson we listed several relevant factors to determine whether SDCL 61-1-11(2) is satisfied.

[I]t is not skill alone which determines whether an individual is established in a trade or business, but whether that individual by reason of such skill engages herself in an economic enterprise such that she bears the risk of her own unemployment. Whether or not she is unemployed is solely a function of market forces and the demand for her skills, not the response of her master to similar economic realities. Here, there was no evidence that the care providers held themselves out to the public as engaged in an independent business which would exist separate and apart from HHCS; they did not advertise their health care services, they did not have any clientele independent of that provided by HHCS, and they did not have business premises or business cards. Furthermore, the care providers could be dismissed from HHCS for violating the provisions of the “Subcontractor’s Responsibilities” document. Thus, it is clear that the care providers were not assuming the risk of unemployment by engaging in an economic enterprise independent of HHCS. They were employed by HHCS and dependent upon it for their livelihood. Consequently, HHCS fails the second prong of SDCL 61-1-11.

Id. at 659.

[¶ 20.] We find that this case is analogous to Hendrickson. First, sellers did not assume the risk of their own unemployment. Instead, their employment was dependant upon Moonlight’s response to economic realities and the market’s need for a rose selling service. There is also no evidence that any of the sellers sold flowers independent of their relationship with Moonlight. Significantly, Long testified that if it wasn’t for Moonlight he would not sell roses. Second, Moonlight’s rose sellers did not hold themselves out as independent businesses by way of business cards or advertising. Third, Moonlight supplied each seller with basically all of the necessary items for this business. Fourth, there is no record evidence that the sellers maintained a business premise for selling flowers apart from Moonlight. Although Moonlight argues that each seller had his or her own peddler’s license and that this should weigh in Moonlight’s favor, each peddler’s license lists “Moonlight Rose Company” as the seller’s business name. Finally, the sellers did not have sales tax licenses, but instead relied on Moonlight’s license. The fact that each seller applied for a sales tax license after this proceeding commenced is irrelevant, because before this became an issue, the sales tax could only be paid by Moonlight. The evidence is insufficient to show an independently established economic enterprise in the flower business.

[¶ 21.] Moonlight also contends that it should only be considered a flower wholesaler, arguing that sellers had the ability to purchase roses anywhere. This argument fails for several reasons. First, we find it particularly significant that, pursuant to the agreement, Moonlight retained liability for the unsold roses. Sellers had no liability for unsold flowers. If sellers were purchasing their roses from a flower wholesaler, they would have been liable for all roses used. Second, the sellers’ written agreement expressly prohibited the sellers from competing against Moonlight. This restriction is not indicative of a wholesaler relationship. Third, Moonlight did much more than simply wholesale flowers. In addition to providing a product, Moonlight supplied the coolers, tubes, baskets, name-tags, and uniform, and Moonlight offered no evidence to establish that flower wholesalers generally provide this equipment. Moreover, Long testified that there were no other businesses like Moonlight in the Sioux Falls area. These facts do not indicate a wholesaler/independent contractor relationship.

Moonlight is distinguishable from other precedent

[¶ 22.] We finally note that this case is materially distinguishable from the cases cited by Moonlight. In Egemo, 470 N.W.2d at 821, the log cutters were independent contractors under SDCL 61-1-11. However, when Egemo no longer had work available for the cutter who was the subject of the appeal, the cutter went out of state to continue cutting timber. Id. at 823. That fact demonstrated that the cutter took the risk of his own unemployment and that his trade as a log cutter existed independently of his relationship with Ege-mo. Id. Moreover, the cutter had a substantial proprietary interest in his skill as a log cutter, as well as the equipment necessary for his trade. Id. at 818.

[¶ 23.] Unlike Egemo, there is no evidence in this case that the sellers would continue selling roses absent their relationship with Moonlight. Furthermore, Moonlight supplied all necessary materials such as coolers, tubes, baskets, and initially, a tuxedo. The fact that the sellers paid their automobile expenses and purchased additional clothing is only incidental to their employment, and it alone does not create independent contractor status.

[¶24.] Moonlight cites South Dakota Dept. of Labor v. Tri State Insulation Co., 315 N.W.2d 315 (S.D.1982) for the proposition that an independent contractor need invest in no more than an “automobile and a ballpoint pen.” Id. at 317. However, the facts in Tri State are also distinguishable. The salespeople in Tri State were significantly more independent than the rose sellers. The Tri State salespeople did their own advertising and were not required to report to, nor did they receive supervision from Tri State. Furthermore, unlike Moonlight’s sellers, the salespeople in Tri State provided sales services for other companies, including Tri State’s competitors. Therefore, if Tri State Insulation had gone out of business, those salespeople could have continued to sell for other enterprises. Because of these distinctions, Moonlight’s reliance on Tri State is misplaced.

[¶ 25.] Finally, Moonlight contends that Shoppers Guide controls. Shoppers Guide is distinguishable because the paper carriers were not subject to a non-compete clause. Furthermore, in Shoppers Guide, the newspaper only supplied the paper carriers with a bag for carrying the papers. Shoppers Guide, 1996 SD 92 at ¶ 13, 551 N.W.2d at 588. In this case, Moonlight supplied the rose sellers with the tuxedo, coolers, tubes, baskets, and a name tag with the Moonlight logo. Finally, the rose sellers were much less independent from Moonlight than the paper carriers were from the Shopper’s Guide.

[¶ 26.] Because Moonlight failed to establish that its sellers were “customarily engaged in an independently established trade, occupation, profession or business” under SDCL 61-1-11, Moonlight’s sellers were employees, not independent contractors.

[¶ 27.] Affirmed.

[¶ 28.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and AMUNDSON, Retired Justice, concur.

[¶ 29.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . We express no opinion on the enforceability of the non-compete clause.

      . Hagedorn owned a house-cleaning business. Long worked as a fireman, Dykshorn worked primarily for UPS and a country club, and Albers had "other employment or was a student."

      . The hearing transcript shows that Hagedorn indicated she had her own cooler but that does not render the finding clearly erroneous as to Long, Albers, or Dykshorn.

      . SDCL 61-1-1(17) defines wages as all remuneration paid for services, including commissions and bonuses. The hearing examiner found sufficient evidence to establish that sellers performed services for wages. The hearing examiner found that:
      [t]he nature of Moonlight Rose's business that is under consideration in this case involves the Agent personally peddling flowers to patrons of restaurants, nightclubs, and other public establishments. As a result, the individual buying the flower personally pays the Agent. At the end of the evening, the Agent gives Moonlight Rose its share of each flower that was sold and retains his or her share. The Agent can return any unsold flowers and is not required to pay $2.51 for any unsold flower. I conclude that under these circumstances, Moonlight Rose paid remuneration to the Agents for their services, and the evidence establishes that Moonlight Rose paid wages to the Agents and others similarly situated.
      Moonlight has not appealed these findings. Therefore we assume (without deciding) that the hearing examiner was correct.


author: VON WALD, Circuit Judge.

text:
    2003 SD 95
    Guenther and Maria ROTHLUEBBERS, Plaintiffs and Appellees, v. Hanspeter OBEE and Agrar Tour GMBH, Defendants and Appellants. Christl Jacob, Individually, and as Personal Representative for the Estate of Horst Jacob, Plaintiffs and Appellees, v. Hanspeter Obee and Agrar Tour GMBH, Defendants and Appellants.
    Nos. 22527, 22528.
    Supreme Court of South Dakota.
    Argued April 30, 2003.
    Decided Aug. 6, 2003.

      Robert Gusinsky and Craig A Pfeifle of Lynn, Jackson, Schultz & Lebrun, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.
    Robert C. Riter, Jr. of Riter, Rogers, Wattier & Brown, Pierre, South Dakota, Attorneys for defendant and appellant Hanspeter Obee.
    David A. Gerdes of May, Adam, Gerdes, & Thompson, Pierre, South Dakota, Attorneys for defendant and appellant Agrar Tour GMBH.
   VON WALD, Circuit Judge.

[¶ 1.] Hanspeter Obee and Agrar Tour GMBH (hereinafter Obee and Agrar) appeal a circuit court decision denying their motions to dismiss actions relating to a motor vehicle accident occurring in the State of South Dakota brought by Guen-ther and Maria Rothluebbers and Christl Jacob (hereinafter Rothluebbers and Jacob) on the grounds of forum non conve-niens and due process. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] For purposes of this appeal, the facts of the case are largely undisputed. On June 14, 2001, a one-vehicle accident occurred in Pennington County, South Dakota near Ellsworth Air Force Base. The vehicle, a passenger van rented from Enterprise Rent-A-Car, was driven by Obee, a German resident. Obee was the director of a tour group from Germany traveling from Chicago, Illinois to Salt Lake City, Utah. The tour, organized by a German company Agrar, was agricultural in nature and had two planned stops in South Dakota in Pierre and Spearfish. All of the tour participants entered into the tour agreement in Germany, the country in which they were all residents. The tour participants were originally to be transported by motor coach, but, due to low tour enrollment numbers, the tour director rented two vans in Chicago. Obee was driving one of the vans. While driving on Interstate 90, Obee either fell asleep, was distracted or the van was pushed off the road by a gust of wind. The van collided with parked construction equipment in a closed left lane of the highway and rolled.

[¶ 3.] At the time of the accident there were nine people in the van: Obee and his wife, Edit von Eerdo; Horst Jacob and his wife, Christl; Guenther Rothluebbers and his wife, Marie; Heinrich Bode and his wife, Rosemarie; and, John Rudolph. As a result of the accident, many of the passengers were injured and Horst Jacob died. All of the injured tour participants were treated at medical facilities in Rapid City, South Dakota.

[¶ 4.] Rothluebbers later brought a claim against Obee and Agrar in Pennington County for injuries they sustained in the accident. Christl Jacob also brought a claim against Obee and Agrar in Pennington County for the injuries she sustained and also for the wrongful death of her husband, Horst. On August 28, 2002, the circuit court entered an order in the Roth-luebbers’ case denying Obee and Agrar’s motion to dismiss on the grounds oí forum non conveniens and due process. A similar order was entered in the Jacob case. Petitions for intermediate appeals to this Court were filed in both cases on September 5, 2002 and intermediate appeal was granted by order of this Court.

ISSUES

Whether the circuit court erred in ruling that the claims made by Rothluebbers and Jacob in Pennington County should not be dismissed due to the common law doctrine of forum non conveniens.

Whether the circuit court erred in ruling that exercising jurisdiction over Obee and Agrar did not offend traditional notions of fair play and substantial justice in violation of the Due Process Clauses of the state and federal Constitutions.

STANDARD OF REVIEW

[¶ 5.] The standard of review for denial of a motion to dismiss based upon the doctrine of forum non conve-niens has been set forth as follows:

A trial court has broad discretion in deciding a motion to dismiss based on forum non conveniens and that decision will be overturned only for abuse of discretion. Reidr-Walen v. Hansen, 933 F.2d 1390, 1394 (8th Cir.1991). Abuse of discretion occurs when the district court does not hold the defendants to their burden of persuasion on all the elements of the forum non conveniens analysis, fails to consider the relevant public and private interest factors established in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), or clearly errs in weighing the Piper Aircraft factors. Reid-Walen, 933 F.2d at 1394.

EFCO Corp. v. Aluma Systems USA Inc., 268 F.3d 601, 603 (8th Cir.2001).

ANALYSIS AND DECISION

FORUM NON CONVENIENS

[¶ 6.] Rothluebbers and Jacob argue that the common law doctrine of forum non conveniens does not exist in South Dakota. They cite the admiralty case of American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994)(holding state court not required to implement or adopt doctrine oí forum non conveniens in courts of its state) in support of their argument. However, that case is in direct conflict with South Dakota law and is therefore unpersuasive.

[¶ 7.] SDCL 1-1-24 provides, “[i]n this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power.” There is no indication that the common law doctrine of forum non conveniens conflicts in any way with a federal or state statute, or the Constitution. There is also no indication that this Court has ever refused to adopt the doctrine in this context. Consequently, the doctrine of forum non conve-niens is alive and well in the State of South Dakota. Therefore, we discuss the applicability of that doctrine to these facts.

[¶ 8.] The doctrine of forum non conveniens has long been recognized by the United States Supreme Court:

“when an alternative forum has jurisdiction to hear [a] case, and when trial in the chosen forum would ‘establish ... oppressiveness and vexation to a defendant ... out of all proportion to plaintiffs convenience/ or when the ‘chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems,’ the court may, in the exercise of its sound discretion, dismiss the case,” even if jurisdiction and proper venue are established.

American Dredging Co., 510 U.S. at 447-448, 114 S.Ct. 981 (quoting Piper Aircraft, 454 U.S. at 241, 102 S.Ct. 252). “Forum non conveniens is a discretionary doctrine which vests in the district courts the power to abstain from the exercise of jurisdiction ‘even where authorized by statute if the litigation can more appropriately be conducted in a foreign tribunal.’ ” Estate of Rick v. Stevens, 145 F.Supp.2d 1026, 1035 (N.D.Iowa 2001) (quoting DeMelo v. Lederle Labs., 801 F.2d 1058, 1060 (8th Cir. 1986)).

[¶ 9.] The principles that govern a motion to dismiss on forum non conve-niens grounds are well settled in the eighth circuit and relevant to the discussion here. The threshold inquiry is whether “there is an adequate alternative forum available in which the dispute can be resolved.” Rick, 145 F.Supp.2d at 1036. To attempt to establish an alternative forum Obee and Agrar offered the affidavit of Gerrett Hoher indicating that a German court of law could be a proper venue in this dispute. As support for that proposition, the trial court was cited numerous sections of the German Code of Civil Procedure purportedly establishing jurisdiction in Germany. There was no dispute below that Germany offers an alternate forum and, therefore, the first prong of the inquiry is met in this case.

[¶ 10.] After meeting the first prong, a court must next balance “a number of factors in order to determine whether they outweigh the deference ordinarily attended to the plaintiffs choice of forum.” Id. The United Stated Supreme Court, in the case Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), enumerated a list of factors which must be considered in ruling on motions predicated on the doctrine of forum non conveniens. “To guide trial court discretion, the Court provided a list of ‘private interest factors’ affecting the convenience of the litigants, and a list of ‘public interest factors’ affecting the convenience of the forum.” Piper Aircraft, 454 U.S. at 241, 102 S.Ct. 252 (citing Gilbert, 330 U.S. at 508-509, 67 S.Ct. 839).

[¶ 11.] The factors set forth in Gilbert pertaining to the private interests of the litigant include:

the “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.”

Id. at n. 6 (quoting Gilbert, 330 U.S. at 508, 67 S.Ct. 839). Whereas, the public interest factors used in determining the forum’s convenience include:

the administrative difficulties flowing from court congestion; the “local interest in having localized controversies decided at home”; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty.

Id.

[¶ 12.] It is also important to acknowledge that there is a strong presumption in favor of the plaintiffs choice of forum. This presumption should be overcome only “when the private and public interest factors clearly point toward trial in the alternative forum” and the presumption applies with less force when the plaintiff or parties are foreign. Piper, 454 U.S. at 255, 102 S.Ct. 252 (emphasis added). The Piper decision also indicated that if the plaintiffs home forum is selected it is reasonable to assume that the chosen forum is the most convenient. Id. at 256, 102 S.Ct. 252. However, when the plaintiff is foreign this assumption loses its reasonableness because the central purpose of a forum non conveniens inquiry is to ensure a convenient forum. Id. Clearly, a foreign plaintiffs choice of a forum that is not his own would be less convenient for him and therefore be entitled to less deference. Id.

[¶ 13.] As previously mentioned, Obee and Agrar contend that there is another adequate forum for this case in Germany. The affidavit offered by Hoher supports that position. Further, Obee and Agrar contend that in light of the alternative forum both the public and private interest factors fashioned in the Gilbert decision warrant dismissal of Rothluebbers and Jacob’s actions in Pennington County. Therefore, we address those factors in turn based on what was presented to the trial court. For the reasons recited below, we cannot say the trial court abused its discretion on these facts.

Private Interest Factors

[¶ 14.] The first private interest factor is the “relative ease of access to sources of proof.” Piper Aircraft, 454 U.S. at 241, n. 6, 102 S.Ct. 252. Obee and Agrar contend that the sources of proof for liability and damages in this case will be medical and lay witnesses that reside in Germany. Their contention is that all of the people injured in the accident eventually received treatment in Germany and as a result only those medical personnel, along with the lay witnesses, will be able to give testimony as to the lingering effects of the injuries. Furthermore, Obee and Agrar contend that having these witnesses travel to South Dakota will constitute a great expense and in any event the witnesses cannot be compelled to attend court proceedings here.

[¶ 15.] While Obee and Agrar’s assertions present valid considerations it does not overwhelm the other relevant factors thereby requiring reversal of the trial court. Obee and Agrar neglect to see the entire picture in regard to the witnesses who will have to testify and the actual importance of those witnesses. Among the long list of potential witnesses in South Dakota are paramedics, Pennington County sheriffs deputies, Rapid City Hospital emergency room personnel, local or regional meteorologists, and accident recon-structionists. While Obee and Agrar list certain non-parties who reside in Germany, it is not certain that those individuals would even be helpful in this litigation or that they would be as important as the witnesses just mentioned. Certainly, the trial court could properly consider the fact that the depositions of foreign witnesses could be used at trial in balancing the relevant considerations and assertions made by Obee and Agrar in regard to this factor.

[¶ 16.] The second private interest factor for review is the “availability of compulsory process for attendance of unwilling, and the cost, of obtaining attendance of willing, witnesses.” Id. In addressing this issue, the trial court recognized that no matter what forum this matter is tried there will be significant expenses for both parties. As an appellate court, we will not put a preliminary price tag on the cost of litigation or speculate in terms of dollars and cents as to the cost of obtaining the attendance of witnesses. However, we do recognize that as it relates to the availability of compulsory process for attendance by unwilling witnesses, the trial court’s decision properly recognized that the number and importance of the witnesses in South Dakota cannot be undervalued. The subpoena power can compel the attendance of these South Dakota witnesses.

[¶ 17.] As to the last private interest factor, consideration of whether a view of the premises or accident scene by the trier of fact would be appropriate, that is a question yet to be addressed by the trial court. We do not make such determinations as to the desirability of such on appeal. However, should the trier of fact inspect the accident scene, then this factor would balance in favor of Rothluebbers and Jacob. As a result, our review of these factors does not lead us to believe the trial court ignored or improperly weighed the private interest factors to constitute an abuse of discretion in denying the motions to dismiss.

Public Interest Factors

[¶ 18.] The first public interest factor that merits consideration is whether the case will create “administrative diffi-cutties flowing from court congestion.” Piper Aircraft, 454 U.S. at 241, n. 6, 102 S.Ct. 252. With the exception of the residence of the parties, there is no indication that this auto accident case is different in any significant respect from any other auto accident case. There is nothing in the record to suggest that this auto accident case concerning liability and damages will congest the circuit court calendar or create exorbitant administrative difficulties. We note that when addressing this factor it is particularly suited for determination by the trial court. There is nothing to indicate this factor was inappropriately weighed by the trial court. Clearly, we are not in a position to second-guess a trial court’s decision concerning its calendar.

[¶ 19.] We must also consider whether maintaining this action in South Dakota would unfairly burden the citizens of Pennington County with jury duty. Id. Obee and Agrar cite a line of cases from the State of New York that address this issue and apply the doctrine of forum non con-veniens to dismiss actions involving foreign nationals who collided with each other while driving in New York. See Martin v. Mieth, 35 N.Y.2d 414, 362 N.Y.S.2d 853, 321 N.E.2d 777, 780 (1974); Singh v. Zuidema, 221 A.D.2d 1020, 634 N.Y.S.2d 301 (1995); McLeod v. Lovelace, 117 A.D.2d 989, 499 N.Y.S.2d 290 (1986). The New York courts in all three of these cases cited “inconvenience” to their forum as a major problem. Id. "While this is a consideration, the record makes it clear that Judge Trimble did not believe that it would pose an “inconvenience” to the court’s calendar or unfairly burden the court if this action were maintained in Pennington County. Obee and Agrar point to no facts that would show that the trial court abused its discretion' in reaching that decision.

[¶ 20.1 The final public interest factor that must be taken into account in this case in determining if dismissal was warranted is whether it raises conflict of laws problems for the trial court to hear this matter. South Dakota has adopted the most significant relationship approach for deciding conflict of laws questions. Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63 (S.D.1992). In Chambers, this Court held that “the forum’s comparative negligence law should be applied to a forum’s domiciliaries who are .involved in an accident in another state.” Id. at 69. When making the decision as to what forum’s law should be used, four factors are considered: the place where the injury occurred, the place where the conduct causing the injury occurred, the domicile of the parties, and the place where the relationship between the parties is centered. Id. at 68 (citing Restatement (Second) of Conflict of Laws § 145 (1971)). In addition, a court must look at certain policy principles when making its decision concerning the applicable law. The principles to be considered in making that decision are:

1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.

Chambers, supra (quoting Restatement (Second), supra § 6).

[¶ 21.] Applying these principles in reviewing the trial court’s decision does not lead us to believe the trial court abused its discretion. Significantly, it is undisputed that the place where the injury occurred and the place where the conduct causing the injury occurred was South Dakota. Yet, the place of business or residence of the parties and the place where the relationship between the parties was centered is Germany. However, Chambers tells us that “these contacts are to be evaluated according to their relative importance with respect to the particular issue.” Chambers, supra (quoting Restatement (Second), supra § 145). Because we are dealing with liability connected to a car accident the trial court recognized that there are important contacts relating to the place of the accident. Obee and Ag-rar argue that due to the holding in Chambers and the long line of cases cited in that decision, the applicable law on damages would point to the trial court using German law. Essentially, they argue German courts are better suited for applying German law and therefore dismissal is required. However, consideration of this factor does not apply to the exclusion of the other factors. Moreover, it appears there may be both liability and damage issues to be addressed at trial. At this early stage, it may preliminarily appear that liability issues favor application of South Dakota law while damage issues favor application of German law. Although each party argues the issue and law most favorable to their position on this forum non conveniens dispute, the parties contacts and their relative importance with respect to each issue will be determined when discovery is completed and the real issues in dispute become more apparent. In any event, the trial court expressed no problems in the application of either law no matter which issue is in dispute.

[¶ 22.] The trial court was required to consider and weigh these varying factors. The record demonstrates the trial court considered and rejected Obee and Agrar’s arguments. Our review of the private and public interest factors as applied here do not indicate an abuse of discretion by the trial court.

DUE PROCESS

[¶ 23.] The inquiry into whether South Dakota can assert jurisdiction over Obee and Agrar is two-fold. First, the court must determine whether there is any statutory authority that gives the court jurisdiction over a nonresident. Denver Truck & Trailer v. Design Services, 2002 SD 127, ¶ 9, 653 N.W.2d 88, 91. Second, the court must decide whether the proposed assertion of jurisdiction comports with federal due process requirements. Id.

[¶ 24.] The statutory authority used to determine whether there is jurisdiction is found in SDCL 15-7-2, South Dakota’s long arm statute. In relevant part, SDCL 15-7-2 reads:

Any person is subject to the jurisdiction of the courts of this state as to any cause of action arising from the doing personally, through any employee, through an agent or through a subsidiary, of any of the following acts:
(1) The transaction of any business within the state;
(2) The commission of any act which results in accrual within this state of a tort action[.]

In accord with Denver Truck, the long arm statute is to be construed broadly. Denver Truck, supra.

[¶ 25.] Here, Obee and Agrar transacted business in South Dakota. The tour, which started in Chicago, was to make two stops in South Dakota, one in Pierre and the other in Spearfish. There is also evidence that the group may have stayed overnight in South Dakota. Obee, driver of the Agrar van, allegedly committed an act in South Dakota that created these tort actions. These facts alone are enough to justify application of the long arm statute.

[¶ 26.] The next step in determining if jurisdiction is appropriate is to consider whether the federal due process requirements have been met. This inquiry requires the Court to decide whether Obee and Agrar had sufficient minimum contacts with South Dakota to conclude that the assertion of jurisdiction does not offend “ ‘traditional notions of fair play and substantial justice.’ ” Denver Truck, 2002 SD 127 at ¶ 10, 653 N.W.2d at 91 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). The standard for determining what constitutes sufficient minimum contacts requires:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Ventling v. Kraft, 83 S.D. 465, 161 N.W.2d 29 (1968). Second, the cause of action must arise from defendant’s activities directed at the forum state. Finally, the acts of defendant must have substantial connection with the forum state to make the exercise of jurisdiction over defendant a reasonable one. An important factor bearing upon the reasonableness of asserting jurisdiction is to determine if defendant’s conduct and connection with the forum state are such that he would have reasonably anticipated being brought into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.[2d] 490 (1980).

Denver Truck, 2002 SD 127 at ¶ 11, 653 N.W.2d at 91 (quoting Opp v. Nieuwsma, 458 N.W.2d 352, 355-356 (S.D.1990)).

[¶ 27.] The thrust of Obee and Agrar’s argument on this issue is much the same as their argument on the prior issue. They claim that, even if there is jurisdiction under South Dakota’s long arm statute, the federal due process clause requires that the assertion of jurisdiction not offend “traditional notions of fair play and substantial justice.” Denver Truck, 2002 SD 127 at ¶ 10, 653 N.W.2d at 91 (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. 154). Obee and Agrar rely on the United States Supreme Court case of Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) to assert that, if South Dakota exercises jurisdiction over Obee and Agrar, the lawsuit would be both inconvenient to them and .South Dakota has no real interest in adjudicating the dispute. We disagree.

[¶ 28.] By comparison, the Asahi decision relies heavily on Worldr-Wide Volkswagen, supra. World-Wide Volkswagen concerned a defective automobile purchased in New York by New York residents and driven to Arizona. While enroute, the vehicle was involved in an accident in Oklahoma that caused it to catch fire. Id. A lawsuit was brought in Oklahoma and World-Wide Volkswagen Corporation argued that it sold no automobiles in Oklahoma and, thus, was not susceptible to service of process in that state. Id. The United States Supreme Court held that Oklahoma had no jurisdiction over the corporation. Id. In so holding, the Supreme Court stated:

Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a' valid judgment.

World Wide Volkswagen, 444 U.S. at 294, 100 S.Ct. 559. Obee and Agrar rely on this reasoning to assert jurisdiction in South Dakota is improper under the due process clause. However, the Court also discussed whether or not it was foreseeable that the defendant or one of its products would end up in the stream of commerce in the forum state when determining if jurisdiction is appropriate. The Supreme Court opined that jurisdiction could be imposed upon the defendant if the defendant’s conduct and connections with the forum were enough to foresee being hauled into court in the forum. Id. at 297, 100 S.Ct. 559. The Court concluded by observing that, when a person or corporation “ ‘purposefully avails itself of the privilege of conducting activities within the forum State,’ ” it has clear notice that it is subject to suit there. Id. (quoting Hanson v. Denekla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958)). We find that reasoning applicable here.

[¶ 29.] Obee and Agrar were not mere tour novices. There is evidence in the record that this was not the first tour that they conducted through the midwest. It also was not mere happenstance that Obee and Agrar operated in South Dakota. The group had two planned South Dakota stops. In light of these facts, the trial court did not err in determining Obee and Agrar purposefully availed themselves to the laws of South Dakota and as a result it was foreseeable that they could be “hauled into court” in South Dakota.

[¶ 30.] For the reasons stated above, we adopt the forum non conveniens doctrine as is required by SDCL 1-1-24 and hold that the circuit court did not err when it found that it had jurisdiction over Obee and Agrar and that exercising such jurisdiction would not offend traditional notions of fair playand substantial justice.

[¶ 31.] Affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and KONENKAMP, ZlNTER, and MEIERHENRY, Justices, concur.

[¶ 33.] VON WALD, Circuit Judge, for SABERS, Justice, disqualified.

      . Discovery has yet to be completed in this case.

      . Rothluebbers and Jacob also argue that Lustig v. Lustig, 560 N.W.2d 239 (S.D.1997) controls this issue. We disagree. Lustig was a divorce and child custody case. In that context, this Court pointed out that some states, i.e. Illinois, have certain statutes in place in regard to forum non conveniens while South Dakota does not. Further, this Court stated: "No margin within SDCL 15-5-11(3) and 25-4-30.1 grants our courts the means to dismiss divorce actions, properly commenced first in South Dakota, in favor of another state's jurisdiction.” Id. at 244 (citing In re M.C., 527 N.W.2d 290, 293 (S.D.1995)). The difference between the present case and Lustig is great. In Lustig, the Court neither raised nor considered SDCL 1-1-24 which specifically provides that, in South Dakota, the rules of the common law are in force except where they conflict with the federal or state Constitution or laws. Therefore, Lustig is distinguishable from the present case.

      . Hoher cited Sections 12 and 13 of the German Code of Civil Procedure in the affidavit submitted below. These sections acknowledge that the proper place of venue in a court case is the defendant's place of permanent residence. He also cited Article 40, Section (2) of the Introductory Act to the German Code (IAGCC). He claimed:

        Article 40 of the IAGCC which became effective June 1, 1999, covers claims for damages against Germans caused by them in foreign countries. Section (2) of Article 40 contains a special rule, applying to all cases in which the tortfeasor and the victim both had their usual domiciles/residences in the same country at the time when liability arose. In such case, the law of such country shall apply.

      . In considering these factors both sides present valid arguments, however, we do not review the trial court's decision anew but, instead, determine whether the trial court abused its discretion.

      . Schwartz v. Consolidated Preightways Corp. of Del., 300 Minn. 487, 221 N.W.2d 665 (1974)(choice-influencing considerations— Minnesota comparative negligence law applies to Minnesota resident injured in Indiana by defendant licensed to do business in Minnesota); DeRemer v. Pacific Intermountain Exp. Co., 353 N.W.2d 694 (Minn.Ct.App.1984)(choice-influencing considerations approach — Minnesota comparative negligence law applies to Minnesota resident injured in auto accident in South Dakota); Issendorf v. Olson, 194 N.W.2d 750 (N.D.1972)(dominant contacts approach — North Dakota law of contributory negligence applies to North Dakota resident injured in auto accident in Minnesota).


author: MEIERHENRY, Justice. SRSTKA, Circuit Judge

text:
    2003 SD 97
    CITY OF RAPID CITY, a municipal corporation, Appellant, v. Daniel J. FINN, Jr. and Melinda K. Finn, Appellees.
    No. 22531.
    Supreme Court of South Dakota.
    Argued on April 29, 2003.
    Decided Aug. 6, 2003.

      Adam Altman, City Attorney, Michael S. Booher, Assistant City Attorney, Rapid City, South Dakota, Attorneys for appellant.
    Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for appellees.
   MEIERHENRY, Justice.

[¶ 1.] The City of Rapid City (City) filed a petition against Daniel and Melinda Finn (Finn), owners of Lot 23, seeking to condemn a portion of Lot 23. An action for declaratory judgment had already been brought by Wildwood Association against the City, Leo Hamm Ranch, L.L.C., Harley Taylor, and Red Rock Development Co., L.L.C. to determine the status of the property the City wished to condemn and whether the section line had been vacated. The trial court combined the actions. In regard to the condemnation action, the trial court ruled against the City. The City appeals. We affirm.

FACTS

[¶ 2.] Wildwood subdivision was platted in 1978 and 1979. Wildwood is bordered on the south by the section line that separates section 21 and 28 of Township 1 North, Range 7 East, Black Hills Meridian, Pennington County. Five lots lie north of the section line and are immediately adjacent to it. The condemnation action concerned mainly Lot 23 owned by Daniel and Melinda Finn. Lot 23 is burdened with a sixty-six foot access easement. The access easement and the section line are known as Shooting Star Trail.

[¶ 3.] The 1978 plat labeled a parcel of land across Lot 23 as “66’ Access Easement.” Sometime in 1985, Leo Hamm (Hamm) sought to purchase the access easement for the purpose of dedicating it to the public. When the City informed Hamm that he would be required to pave the easement, Hamm abandoned the idea. Approximately a year later, Hamm once again approached the City about the easement; the City informed him that in order to dedicate the easement as a public right-of-way, a drainage study was required. Hamm once again abandoned the idea.

[¶ 4.] The City’s decision to condemn Finn’s property was prompted by a series of events beginning with discussions about the City providing municipal services to a development identified as Red Rock Estates. In order for the City to provide services to Red Rock Estates, the City would have to annex the development. Hamm’s property lay between and adjacent to the City limits and Red Rock Estates. Because Red Rock Estates was not contiguous to the City, negotiations began ■with Hamm for his consent to annex his property. Hamm conditioned the voluntary annexation of his property on a number of demands. Ultimately, an agreement was struck with Hamm: (1) Red Rock Estates would pay Hamm $50,000, (2) the City would obtain, at its expense, a sixty-six foot easement from Wildwood to the section line, (3) the City would dedicate the easement as a public right-of-way, and (4) the City would grade the section-line road along the northern boundary of Hamm’s property according to City specifications.

[¶ 5.] Neither Finn nor Wildwood property owners were notified or included in the City’s discussions with Hamm. In fact, Hamm specifically directed the City not to contact Daniel or Melinda Finn. It was not until approximately a year after the City initiated the agreement with Hamm that the residents of Wildwood became aware it.

[¶ 6.] On July 10, 2000, the City passed a resolution incorporating the conditions of the Hamm agreement for annexing his property. On August 21, 2000 the City annexed Hamm’s property. The City attempted to procure the access easement from Finn without success. On March 5, 2001, the City filed a petition for condemnation. against Finn to obtain the access easement for public use. On September 19, 2001, the City adopted a resolution of necessity for the condemnation. The City determined that the sixty-six foot access easement was necessary to provide access to the section line in order to facilitate public travel.

[¶ 7.] At trial, the trial court ruled in favor of Finn finding that the City had acted in bad faith and abused its discretion in filing a petition to condemn. The City appeals the following issues:

1. Whether the City’s finding of necessity for condemnation of Finn’s property was based on bad faith.
2. Whether the City’s finding of necessity for condemnation of Finn’s property was an abuse of discretion.

STANDARD OF REVIEW

[¶ 8.] The proper scope of review for condemnation appeals is a standard deferential to the municipal police power. City of Freeman v. Solis, 2001 SD 84, ¶ 8, 630 N.W.2d 699, 702. “[I]n municipal decision making, the scope of review is limited to whether a city acted unreasonably and arbitrarily.” Id. (citing Evans v. King, 57 S.D. 109, 230 N.W. 848, 849 (1930); Ericksen v. City of Sioux Falls, 70 S.D. 40, 53, 14 N.W.2d 89, 95 (1944)). A city’s resolution of necessity is entitled to substantial deference and should be reviewed under an abuse of discretion standard. Id. at ¶ 9. The trial court’s findings of fact are reviewed under a clearly erroneous standard and questions of law as well as mixed questions of law and fact are reviewed de novo. Id.

DECISION

1. Whether the City’s finding of necessity for condemnation of Finn’s property was based on bad faith.

[¶ 9.] The trial court found that the City acted in bad faith when it initiated a condemnation proceeding against Finn. The City contends that the condemnation resolution was valid and based on necessity. The City denies any basis of fraud, bad faith, or abuse of discretion. The property owner’s right to challenge the City’s taking is set forth in SDCL 21-35-10.1 which states:

Within thirty days from the date the summons described in § 21-35-9 is served, the defendant may demand a hearing in circuit court on the petitioner’s right to take. Failure to make such demand or to consent in writing to the taking, within the thirty-day period, shall constitute a waiver of the right to question the necessity of the taking. The finding of necessity by the 'plaintiff, unless based upon fraud, bad faith or an abuse of discretion, shall be binding on all persons.

(Emphasis added.)

[¶ 10.] The City asserts that the trial court erred in determining that the condemnation proceeding was to further a private interest and that the City acted in bad faith. The City contends that the evidence established that it was in the public interest to condemn the access easement across Lot 23 in order to facilitate public travel.

[¶ 11.] This Court has said that “[a] municipality acts in bad faith when it condemns land for a private scheme or for an improper reason, though the superficially stated purpose purports to be valid.” Salis, 2001 SD 84, ¶ 12, 630 N.W.2d at 703. The use of eminent domain solely to benefit a private individual or individuals constitutes bad faith and the taking is void. Pheasant Ridge Associates Ltd. Partnership v. Burlington, 399 Mass. 771, 506 N.E.2d 1152, 1155 (1987) (citations omitted).

[¶ 12.] In determining that the City acted in bad faith, the trial court relied on the following findings: (1) that the City made an agreement with Hamm to obtain the sixty-six foot access easement; (2) that no notice of the agreement between the City and Hamm was provided to the owners of Lots 18 through 23 or to Wildwood Association; (3) that an e-mail evidenced a deliberate decision not to contact Daniel and Melinda Finn; (4) that prior to this agreement, the City had demonstrated no interest in the property it ultimately sought to condemn; and (5) that the City, in an attempt to purchase Finn’s property, made contradictory representations about the location of the access from Wildwood to Hamm’s property and Red Rock Estates. In addition, the trial court found that the City failed to act in conformity with its usual practice of performing traffic studies, engineering studies and drainage studies before instituting a condemnation action. The trial court also based its decision on the City’s failure to specifically identify the location of the sixty-six foot access to be condemned and the change of its location and width immediately before trial.

[¶ 13.] At trial, the evidence established that for 20 years the City held the position that no roads extending into Wildwood subdivision should be built because of the geographical nature of the land. A 1978 staff report stated that “Miter investigation of future development potential and proposed road grades, it is the staffs recommendation that a collector system not be extended through this development.’’ Several years prior to the condemnation proceeding, Hamm tried, on two separate occasions, to obtain the easement for dedication to public use. The City informed Hamm that in order to dedicate the easement across Lot 23 to public use, he would have to pave the easement and do drainages studies. On both occasions, Hamm abandoned his plan.

[¶ 14.] It was not until Red Rock Estates began negotiating with Hamm that the City became interested in Finn’s property. It was only after Hamm demanded that the City obtain the easement for pub-lie dedication that the City chose to acquire Finn’s property. Despite the City’s prior position that a collector system should not be extended through Wildwood, it decided to make a deal with Hamm to obtain the access easement for public use. In a letter dated April 7, 2000, the mayor acknowledged Hamm’s demand and responded, “I am willing to pursue City acquisition and if necessary condemnation to acquire that land.” At a public meeting held July 19, 2001, the mayor made it clear that the City would be condemning part of Lot 23 stating, “[t]he City has made the commitment to Leo Hamm and I fully intend to see that it’s carried out.”

[¶ 15.] During the negotiations with Hamm, the City gave no notice to Finn or to the Wildwood property owners. In fact, information about the negotiations was purposely withheld from Finn. In an e-mail from Marcia Elkins (Elkins), City Planning Director, to the mayor, Elkins informed the mayor that Hamm did not want the City to approach Daniel and Melinda Finn at that time. On September 25, 2000, Bonnie Hughes (Hughes), Community Development Director for the City, sent a letter to Finn expressing the City’s desire to obtain the access easement for dedication as a public right-of-way. Hughes made no mention of the deal with Hamm. Finn called Hughes to inquire further about the future of the access easement. After speaking to two of the City’s engineers, Hughes told Finn that the major street plan had been amended to show Wildwood Drive as a local street only— meaning access through the area for future development would not be allowed. The engineers also told Hughes that, in their opinion, it was a poor place to put a road and that the proper location would be farther south. In a letter dated March 23, 2000, Hughes again indicated to Finn the City’s desire to purchase the property. Included in the letter was Hughes’ assurance that the major street plan showed Wildwood as a local street only and that access through the area to future developments would not be allowed.

[¶ 16.] The Wildwood residents first discovered that a road was being constructed from Red Rock in the direction of Shooting Star Trail in June of 2001. Again Finn called Hughes who assured Finn that any road coming in that direction would divert south and would join Sheridan Lake Road. In late June as the construction progressed further, another resident of Wildwood found construction workers putting stakes in his back yard as Hamm stood nearby watching. The resident went to the city engineers who informed him that no permits had been issued for road construction in that area. Without a permit the City was forced to stop construction. Despite the City’s clear intention to build a road on Shooting Star Trail, the city engineers at a July 2, 2001 meeting still maintained that there were no plans to build a road on Shooting Star Trail. Apparently, the city engineers were not privy to the deal between Hamm and the City or that a road had, in fact, been planned. The agreement between Hamm and the City to build a road across Lot 23 to the section line had the appearance of a private agreement since neither the Wild-wood residents nor the City’s own engineering departments were notified.

[¶ 17.] Additionally, the City failed to conform to its usual practices in condemning property. The City’s Public Works Director admitted that the City usually conducts a preliminary engineering evaluation to determine the feasibility of a road at the proposed location. The City Project Manager agreed. Contrary to its normal procedure, the City condemned the property without determining whether a street would meet any of the required standards.

[¶ 18.] Despite the City’s contention that the condemnation of Finn’s property was necessary to facilitate public travel, the evidence indicates otherwise. The main purpose of the condemnation was to fulfill the City’s commitment to Hamm. The City’s actions in furthering Hamm’s private interest were improper. Based on the evidence, we cannot say that the trial court’s findings of fact were clearly erroneous. Nor do we find the trial court erred in concluding that the condemnation action was instituted in bad faith.

2. Whether the City’s finding of necessity for condemnation of Finn’s property was an abuse of discretion.

[¶ 19.] The trial court found that the City abused its discretion in finding necessity as a basis to condemn the Finn’s property. “(M)uch latitude is given to the corporation vested with the right of acquiring property by eminent domain to determine the extent of the property necessary to be taken.... ” Basin Elec. Power Co-op. v. Payne, 298 N.W.2d 385, 388 (S.D.1980) (citing Otter Tail Power Company v. Malme, 92 N.W.2d 514, 521 (N.D.1958)). This Court has said, “[w]hen condemning authorities face competing considerations, they do not abuse their discretion if their choices are reasonable in light of logic and evidence.” Salis, 2001 SD 84, ¶18, 630 N.W.2d at 704. “A choice to condemn must grossly violate fact and logic or be wholly arbitrary to support a finding of abuse of discretion.” Id.

[¶ 20.] The trial court found that the City abused its discretion in condemning Finn’s property because there was no public necessity for the taking. The City claims that the condemnation was necessary to provide access to the section line and to facilitate public travel. As early as 1978, the City was aware of the difficulties it would face by building a road for ingress and egress from Wildwood to other developments. A 1978 staff report indicated that after investigation of development potential and proposed road grades, the engineer recommended that a collector system be developed from the north, Corral Drive, and from the south, Sheridan Lake Road. Knowing that a prior report recommended no extension of collector streets in Wild-wood, the City proceeded with its plan to extend the street without conducting further studies to determine whether a road on the access easement was feasible. No geotechnical analysis, drainage studies, or traffic studies were conducted by the City. The City presented no roadway plans prior to condemning the property. Although the City had previously told Hamm that it required a drainage study in order to consider his request to dedicate the easement to the public, the City did no drainage study before condemning the property.

[¶ 21.] Evidence at trial revealed that a road built on the condemned sixty-six foot easement could not meet City standards. The road would not meet standards because: (1) a street would create “double front” lots, (2) the proposed road would extend ten feet into Finn’s home, and (3) the geographical terrain would not accommodate a road that would meet City standards. Two of the City Engineers indicated it was a poor place to put a road. Eventually, the City was forced to concede that a road could not be built to City standards within the sixty-six foot easement. The City Project Manager admitted that in order to construct a street that would meet City specifications, the street would have to be relocated and would encompass far more than the sixty-six foot access easement. Notwithstanding the road’s relocation and widening, the street still may not meet the minimum standards.

[¶22.] Based upon the evidence, we cannot say that the trial court’s findings were clearly erroneous. Nor can we say that the trial court erred in concluding that the City abused its discretion in finding public necessity as a basis for the taking.

[¶ 23.] We affirm.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, and ZINTER, Justices, and SRSTKA, Circuit Judge, concur.

[¶ 25.] SRSTKA, Circuit Judge, sitting for KONENKAMP, Justice, disqualified.

SRSTKA, Circuit Judge

(concurring).

[¶ 26.] I concur in the majority opinion in all respects. I add this opinion to comment on SDCL 21-35-10.1 and our affirming the use of that statute by the trial court to overturn a city’s declaration of taking.

[IT 27.] At first blush our opinion appears to beat a retreat from the traditional deference given by the courts to the legislative branch of the government when it delegates the power of eminent domain. Basin Elec. Power Co-op. v. Payne, 298 N.W.2d 385, 388 (S.D.1980)(citing Otter Tail Power Company v. Malme, 92 N.W.2d 514, 521 (N.D.1958)).

[¶ 28.] The Constitution of South Dakota, art. VI, § 13, and art. XVII, § 18, by implication if not direction, limit the use eminent domain to acquire property in the public interest.

[¶ 29.] Article VI, § 13 reads in part: “Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the legislature and according to § 6 of this article.”

[¶ 30.] Article XVII, § 18, reads in part:

Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.

[¶ 31.] A brief historical review of the relationship between the judiciary and the legislative branch when it delegates the power eminent domain discloses that by the middle of the Twentieth Century, the courts had almost totally yielded overview of takings and ceded to the legislative branch the power to define what was taking for a public purpose.

[¶ 32.] Although the determination of whether a use is public or not is said to be a judicial question, the courts have moved so far from the idea that actual use by an appreciable part of the public is a requisite to public purpose, toward a conclusion that if any public purpose is served public use is unnecessary, that it is almost correct to say that the question of whether a taking of land is for a public use is a legislative and not a judicial one see United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946). Thus, use of the condemnation power has been upheld where the purpose was to clear slums, beautify and area, construct low-cost housing, provide off-street parking and promote industrialization. Encyclopedia Britannica, 1963, Volume 8, Eminent Domain p. 336.

[¶ 33.] In South Dakota we concurred with this historical trend. In 1950 we held the following:

The question of the existence of the necessity for exercising the right of eminent domain, where it is first shown that the use is public, is not open to judicial investigation and determination, but that the body having power to exercise the right of eminent domain is also invested with power to determine the existence of the necessity.

City of Bristol v. Horter, 73 S.D. 398, 403, 43 N.W.2d 543 (1950) (quoting Chicago, M. & St. P.R. Co. v. Mason, 23 S.D. 564, 122 N.W. 601, 603 (1909)).

[¶ 34.] A review of the code shows dozens of grants of eminent domain power. Municipalities can clear entire city blocks on a finding that the area is a slum or blighted area, for example. SDCL 11 — 8— 50. Even recycling and waste management districts, SDCL 34A-16-16 and television translator districts, SDCL 49-32A-17 have the power of eminent domain.

[¶ 35.] This is not the first case where a landowner challenged a taking under SDCL 21-35-10.1. The landowner in Basin Elec. Power Co-op v. Payne, supra, challenged the taking under the statute. The statute is relatively new in the eminent domain law only having been adopted in 1976 and amended in 1977. The pertinent parts of that statute read as follows:

Within thirty days from the date the summons described in § 21-35-9 is served, the defendant may demand a hearing in circuit court on the petitioner’s right to take.... The finding of necessity by the plaintiff, unless based upon fraud, bad faith or an abuse of discretion, shall be binding on all persons.

[¶ 36.] A reader of that statute might conclude that the legislature granted the courts new powers to review and perhaps, some might fear, micromanage condemnation proceedings. A review of the cases, however, teaches us that the legislature only codified the standards followed by the courts in eminent domain cases.

[¶ 37.] In City of Bristol v. Horter, supra, 73 S.D. at 403, 43 N.W.2d 543, we recognized the right of the courts to review a taking on the basis of fraud, bad faith or abuse of discretion when we stated:

In this case the purpose was public and the necessity was determined by the legally authorized municipal authority. It is not contended that the city is appropriating more land than is necessary for the use intended, and there is no claim of fraud, bad faith or abuse of discretion. Therefore the city’s determination that the necessity for the taking exists is conclusive.

[¶ 38.] We continued to recognize the residual power of the judiciary to examine takings noting that the entity delegated the condemnation power must strictly follow the requirements established by the legislature. Illinois Cent. R.R. Co. v. East Sioux Falls Quarry Company, 33 S.D. 63, 144 N.W. 724 (1913). Two quotations from that opinion show our thoughts in the use of and limitations on the eminent domain powers.

Appellants declare, and we think correctly, that it devolves upon a party seeking, through delegated power, to exercise the right of eminent domain to show:
(1) That such party is within the class to whom the power has been delegated.
(2) That all conditions precedent have been complied with.
(3) That the purpose for which the property is to be taken is one of the purposes enumerated in the statute.
(4) That the property is to be taken for a public use.
(5) That the particular property sought to be taken is necessary to the accomplishment of the public purpose intended.

144 N.W. at 724 and 725, and

Has respondent complied with the statutory conditions precedent to the exercise of the power of eminent domain in this case? The power of eminent domain being a power which is possessed by a railway corporation solely by being delegated to such corporation by the sovereign power of the state, its existence depends upon a strict compliance with each and every condition prescribed by such sovereign power, (citations omitted).

144 N.W. at 726.

[¶ 39.] As we can see from a cursory view of the cases, the statute really adds nothing to the power that the courts continued to reserve, although we might deduce that the legislature intended the judiciary to be more assertive in its review and less deferential to the condemning power.

[¶ 40.] The bench and bar really have nothing to fear from this opinion. The opinion does not change the relationship among the entities using eminent domain and the judiciary when we examine the cases and compare them to the statute. The facts in this case are extreme and even absent the statute, SDCL 21-35-10.1, the trial judge was proper in overturning the city’s actions.

      . A street identified as a "collector” street means additional traffic from future developments could come through the neighborhood for ingress and egress.