author: [¶ 1.] Justice STEVEN L. ZINTER [¶ 48.] ZINTER, Justice

text:
    2006 SD 7
    LEWIS & CLARK RURAL WATER SYSTEM, INC., a South Dakota Non-Profit Corporation, Plaintiff and Appellant, v. Loren SEEBA; Kenneth F. Seeba and Loretta M. Seeba; Irving Gedstad and Henrietta Gedstad; and the United States of America, Defendants and Appellees. Lewis & Clark Rural Water System, Inc., a South Dakota Non-Profit Corporation, Plaintiff and Appellant, v. Gary D. Buse and Dee Anna Buse, Home Federal Bank; Lincoln County, South Dakota; South Lincoln County Rural Water System, Inc.; and Evelyn Buse and Wilmer Buse, Defendants and Appellees.
    Nos. 23737, 23738.
    Supreme Court of South Dakota.
    Argued Oct. 4, 2005.
    Decided Jan. 20, 2006.

      Mark F. Marshall, Monte R. Walz of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellants.
    Mark V. Meierhenry, Patrick J. Glover of Danforth & Meierhenry, LLP, Sioux Falls, South Dakota, Attorneys for appel-lees.
   [¶ 1.] Justice STEVEN L. ZINTER

delivers the opinion of the Court on:

Issue 1, which holds that the 250 foot setback restriction in SDCL 46-8-1.2 applies to routes acquired under the provisions of SDCL ch 46-8, including routes for water pipelines;

Issue 2(a), which holds that the width of the route is measured from the outside dimension of the pipeline rather than the exterior boundary of the easement;

Issue 2(b), which holds that “other buildings on the premises” include grain bins and sheds located on the same farmstead as the dwelling house; Issue 2(c), which holds that the route proposed by Lewis & Clark may not cross below, on, or through any existing noncommercial orchard or garden; Issue 2(d)(i), which holds that a landowner, who has no dwelling, building, orchard or garden within the prohibited proximity of the pipeline, lacks standing to assert a condition of SDCL 46-8-1.2;

Issue 2(e), which holds that a landowner, who has actual knowledge of the intended pipeline route, cannot construct a dwelling house, building, or noncommercial orchard or garden to block or alter construction of the intended pipeline; and Issue 2(f), which holds that SDCL 46-8-1.1 only governs general pipeline parameters not addressed in SDCL 46-8-1.2, and that the circuit court may not modify the specific conditions in SDCL 46-8-1.2 through SDCL 46-8-1.1.

[¶ 2.] Justice RICHARD W. SABERS delivers the opinion of the Court on:

Issue 2(d) (ii), which holds that SDCL 46-8-1.2 does not give a landowner the right to object to a pipeline located on someone else’s property.

[¶ 3.] ZINTER, Justice, writing the opinion on Issues 1, 2(a), (b), (c), (d)(i), (e) and (f).

[¶ 4.] Lewis & Clark Rural Water System, Inc. appeals from the circuit court’s interpretation of a statute that regulates the use of eminent domain. Lewis & Clark contends that the statute does not apply to its underground water pipeline project. If the statute does apply, Lewis & Clark challenges the circuit court’s interpretation of the statute’s restrictions as the pipeline passes dwellings, buildings, and noncommercial orchards and gardens. We affirm the circuit court in part, reverse in part, and remand.

Facts and Procedural History

[¶ 5.] Lewis & Clark was created by an act of Congress to plan, develop, construct, and operate a water pipeline system. The system will pump water from aquifers located near the Missouri River and transport the water to municipalities and rural water systems. It will provide potable water for approximately 200,000 people in eastern South Dakota, northwest Iowa, and southwest Minnesota. The water will be distributed through approximately 337 miles of pipeline across an area of 5,000 square miles, crossing approximately 700-850 parcels of property. Approximately 189 miles of pipeline and 350-475 of those parcels are located in South Dakota.

[¶ 6.] In order to construct and maintain the pipeline, Lewis & Clark sought seventy foot permanent easements and eighty foot temporary construction easements from landowners along the proposed pipeline route. Because some easements could not be negotiated, Lewis & Clark filed condemnation actions invoking the right of eminent domain for waterworks under SDCL 46-8-1. That statute provides:

Any person may exercise the right of eminent domain in the manner provided by law to acquire as a public use any property or other rights necessary for application of water to beneficial uses or to enlarge an existing structure for conveyance of water for use in common with an existing or former owner. Application of water to beneficial use is a public use, in the public interest and of benefit to the public.

Landowners, however, argued that Lewis & Clark was not entitled to use eminent domain because the pipeline route did not meet a' 250 foot setback restriction in SDCL 46-8-1.2. That statute provides:

No routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house or other buildings on the premises or across any noncommercial orchard or garden without written consent of the owner. This section does not apply to works located in public rights-of-way.

[¶ 7.] These appeals involve three separate properties. The first property, parcel 170, is owned by Loren Seeba, et al. (See-ba). The pipeline route proposes to run on the Seeba property for a certain distance, cross a public road to property not owned by Seeba, and then re-cross the road to again run on the Seeba property. Seeba objected to the proposed location of the pipeline at the point where it would be across the road on another’s property but approximately 140 feet from Seeba’s dwelling. Seeba contended that eminent domain could not be utilized because the pipeline route was within the 250 foot restriction in SDCL 46-8-1.2. Lewis & Clark responded that Seeba did not have standing to object because Seeba did not own the real property through which the pipeline would run when it was within 250 feet of his dwelling.

[¶ 8.] The second property, parcel 180, is owned by Gary Buse, et al. (Buse). The pipeline proposes to run across the Buse property and will come within 250 feet of two types of buildings that are on his property. The first type is a group of three grain bins. The pipeline is proposed to be located approximately twenty-five feet from the grain bins, and a portion of one of the bins is within the permanent easement. The second type of building is a machine shed that was constructed after the scope of the project and intended route became public. The pipeline is proposed to be located approximately seventy feet from this shed, and a portion of it is within the permanent easement.

[¶ 9.] Buse asserted that the pipeline route violated the 250 foot setback restriction with respect to both types of buildings. Lewis & Clark responded that these buildings did not violate the setback restriction because they were not “other buildings on the premises” within the meaning of SDCL 46-8-1.2. Additionally, Lewis & Clark contended that the setback restriction was inapplicable to the shed because it was constructed after the plans for the pipeline became public.

[¶ 10.] The third property, parcel 179, is owned by Wilmer Buse, et al. (W. Buse). The pipeline was not proposed to be located within 250 feet of any dwelling house, other building, or noncommercial orchard or garden on his property. However, W. Buse objected to the route’s location at a point where it would be within 250 feet of buildings on adjacent property, parcel 178, owned by Kevin and Cindy Enterprises. W. Buse objected even though the Enterprises consented to the pipeline route and gave an easement on their property. Lewis & Clark contended that W. Buse had no standing to object because the route was neither on property owned by W. Buse nor within 250 feet of any building owned by W. Buse.

[¶ 11.] All parties moved for summary judgment, and the circuit court generally ruled in favor of the landowners. Lewis & Clark appeals raising the following issues:

1. Do the SDCL 46-8-1.2 restrictions, including the 250 foot setback, apply to the Lewis & Clark pipeline project?
2. If the SDCL 46-8-1.2 restrictions apply to the project:
(a) Does the width of the “route” include both the width of the pipeline and the seventy foot permanent easement?
(b) Does the 250 foot restriction apply to “other buildings on the premises” that are not dwellings but are used by the owner or occupant in connection with the dwelling?
(c) Does the statute prohibit the route from physically crossing a noncommercial orchard or garden?
(d) Does a landowner have standing to object to the condemnation when:
(i) the landowner (W. Buse) has no dwelling, building, orchard, or garden within 250 feet of the route?
(ii) the landowner (Seeba) has a “dwelling house or other building on the premises” located within 250 feet of the pipeline route, but the pipeline is located on the land of a neighbor?
(e) Does a landowner, who has actual knowledge of the intended route, have the right to subsequently construct a dwelling house, building, or noncommercial orchard or garden and invoke the statutory restrictions?
(f) Does the circuit court have authority (under SDCL 46-8-1.1) to modify the 250 foot setback restriction in SDCL 46-8-1.2 if the court finds that the modification will do the “least possible injury to private property, consistent with sound engineering principles and with economic feasibility”?

Standard of Review

[¶ 12.] These appeals involve the interpretation of eminent domain statutes. “Statutory interpretation and application are questions of law.” Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463 (citing Steinberg v. State Dep’t of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). This Court reviews questions of law under the de novo standard with no deference afforded the circuit court’s decision. Id. (citing City ofDeadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25). In performing that review, we interpret statutes “to discover the true intent of the legislature in enacting laws, which is ascertained primarily from the language employed in the statute.” Sanford v. Sanford, 2005 SD 34, ¶ 13, 694 N.W.2d 283, 287; State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653. This Court gives “words their plain meaning and effect, and read[s] statutes as a whole, as well as enactments relating to the same subject.” Id. (citing State v. 1-90 Truck Haven Serv., Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290). The intent of a statute is determined from what the Legislature said rather than what the courts think it should have said. Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (citations omitted).

Analysis and Decision

1. Do the Restrictions in SDCL ⅛6-8-1.2 Apply to Water Pipelines?

[¶ 13.] Lewis & Clark argues that SDCL 46-8-1.2 does not apply to water pipelines. However, neither the text nor history of the relevant enactments support its argument.

[¶ 14.] We first observe that the text of SDCL 46-8-1.2 provides “[n]o routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house.” (emphasis added). Because Lewis & Clark is attempting to acquire its route under a statute in (SDCL ch. 46-8), the restrictions in SDCL 46-8-1.2 plainly apply.

[¶ 15.] This conclusion is also supported by the text of SDCL 46-8-1, which provides that eminent domain may be utilized “in the manner provided by law.” (emphasis added). Because Lewis & Clark is utilizing this statute to condemn private property, it must do so “in the manner provided by law.” And, “the manner provided by law” must include the restrictions and conditions in SDCL 46-8-1.2 because these statutes are construed in pari materia.

The object of the rule of [in] pari mate-ria is to ascertain and carry into effect the intention of the legislature. It proceeds upon the supposition that the several statutes [are] governed by one spirit and policy, and [are] intended to be consistent and harmonious in their several parts and provisions.

MB v. Konenkamp, 523 N.W.2d 94, 97-98 (S.D.1994) (citing State v. Chaney, 261 N.W.2d 674, 676 (S.D.1978)). Statutes must be construed in pari materia when “they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.” Goetz v. State, 2001 SD 138, ¶26, 636 N.W.2d 675, 683 (citing 2B Sutherland, Statutory Construction, § 51:03 (6th ed 2000)).

[¶ 16.] Here, SDCL 46-8-1 and 46-8-1.2 must be read in pari materia because they are in the same chapter, they relate to the same thing, and they have the same purpose or object. In fact, these statutes were reenacted and amended by the same Legislature, at the same time, and in the same bill as a part of a comprehensive water policy revision. See 1983 SD Sess Laws ch 314, §§ 131, 134. Reading these statutes in pari materia, SDCL 46-8-1.2 must be read as a restriction and condition on the general right of eminent domain granted under SDCL 46-8-1.

[¶ 17.] The history of these provisions also supports this conclusion. “It is ... an established principle of statutory construction that, where the wording of an act is changed by amendment, it is evidential of an intent that the words shall have a different construction.” South Dakota Subsequent Injury Fund v. Federated Mut. Ins., 2000 SD 11, ¶ 18, 605 N.W.2d 166, 170 (citing South Dakota Subsequent Injury Fund v. Casualty, 1999 SD 2, ¶ 18, 589 N.W.2d 206, 209-10) (quoting In re Dwyer, 49 S.D. 350, 207 N.W. 210, 212 (1926)). Here, amendments to SDCL 46-8-1.2 reflect legislative intent to broaden the statutory restrictions from routes taken for “waterways” to all routes acquired for the application of water for public use, including pipelines.

[¶ 18.] The first version of the setback restriction found in SDCL 46-8-1.2 was enacted in 1890 and was codified in 1903, 1919, and 1939. It was then reenacted in 1955 and codified in 1960 and 1967. Thereafter, it remained unchanged until 1983. Under the pre-1983 versions, the setback restrictions were limited to a setback from “waterways.” The pre-1983 versions provided “[n]o routes for waterways shall be located ... within fifteen rods of the dwelling house or other buildings on the premises or across any orchard or garden, without the written consent of the owner.” See SDCL 46-8-2 (1967) (emphasis added). However, the 1983 amendment broadened the setback restrictions by removing the limitation to “waterways” and broadly stated: “[n]o routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house or other buildings on the premises or across any orchard or garden without written consent of the owner.” 1983 SD Sess Laws ch 314, § 134 (emphasis added); SDCL 46-8-1.2. Because the 1983 amendments broadened the restrictions to all routes taken under provisions of SDCL ch 46-8, the restrictions obviously apply to routes for other waterworks such as pipelines.

[¶ 19.] Lewis & Clark, however, argues that the removal of the limiting term “waterways” was mere inadvertence, and therefore, the Legislature did not intend to broaden the statutory restrictions. Lewis & Clark’s argument presumes that the 1983 Legislature did not intend a change when it amended the language of SDCL 46-8-1.2. We cannot, however, presume such inadvertence in legislative amendments. On the contrary, “[w]hen an amendment is passed, it is presumed the legislature intended to change existing law,” Federated Mwt. Ins., 2000 SD 11, ¶ 18, 605 N.W.2d at 170, and “intended to alter the meaning of the statute to comport with the new terms.” Delano v. Pet-teys, 520 N.W.2d 606, 609 (S.D.1994) (citing John Morrell & Co. v. Dep’t of Labor, 460 N.W.2d 141 (S.D.1990)).

[¶ 20.] Any doubt about legislative inadvertence is conclusively rebutted by other provisions of the 1983 Act. As previously noted, 1983 SD Sess Laws eh 314, section 134 reworded today’s version of the setback requirement found in SDCL 46-8-1.2. Following that change in section 134, sections 138 and 139 made specific references to the word “pipeline” in enumerating the types of waterworks that were on the minds of the legislators in adopting this comprehensive revision. These specific references to “pipelines” reflect that the Legislature’s replacement of the term “waterways” with the broader phrase “no routes acquired” was not inadvertent. On the contrary, the contemporaneous reference to water “pipelines” reflects that the new language was intended to encompass routes for water pipelines. Consequently, we hold that the restrictions in SDCL 46-8-1.2 apply to all “routes acquired under the provisions of this chapter,” which includes water pipelines.

2. Compliance with the Setback Restriction.

[¶ 21.] Landowners have not suggested that Lewis & Clark violated taking conditions in generally locating the pipeline. Instead, they contend that the taking is void because the route does not comply with the setback restriction in SDCL 46-8-1.2 in a number of respects.

2(a) How is the Setback Measured— What is the Width of the Route?

[¶ 22.] SDCL 46-8-1.2 prohibits the “route” acquired from being within 250 feet of dwellings or other buildings on the premises. In order to apply this setback, we must first determine the width of-the route. SDCL ch 46-8 does not define the term route. The circuit court concluded that “the word ‘routes’ ... includes both the pipeline and the permanent easement to be acquired.” Therefore, the circuit court further concluded that the setback should be measured from the exterior boundary of the seventy foot permanent easement. Lewis & Clark, however, contends that the word “route” only includes the actual pipeline and that the setback should be measured from the center of the pipeline.

[¶23.] Because “route” is not defined we must determine and give effect to the intention of the Legislature. Federated Mut. Ins., 2000 SD 11, ¶ 18, 605 N.W.2d at 170. In making that determination, we consider the nature and purpose of the setback restriction. In this regard, it is notable that textually and historically the statute has imposed the setback from the actual waterwork rather than any associated easement. For example, the earliest version of this statute referred to a setback from the routes for the open “waterways.” See 1890 SD Sess Laws ch 103, § 2. This reference to a setback from a waterwork of some type has continued to this day. The latest related amendments suggest that by 1983, the Legislature was also concerned about “structure[s]” as well as “pipelines, canals, ditches or other water conduits for the conveyance of water.” See SDCL 46-8-1; SDCL 46-8-7.

[¶ 24.] Thus, it is evident that the purpose of the setback restriction was to protect the property owner from the dangers, inconvenience, and loss of property use associated with an actual waterwork. Considering the danger and inconvenience posed by such open waterworks and structures, the 1890 Legislature would have contemplated a setback measurement from the bank of the waterway. There is also nothing to suggest that later Legislatures would have contemplated something different. However, the dangers and inconveniences that arise from waterworks do not arise from the easements that may be incidentally and occasionally used to maintain the waterwork. Therefore, we conclude that the setback restriction was intended to be measured from the water-work rather than the easement: in this case, the outside dimension of the pipeline.

2(b) What are “Other Buildings on the Premises”?

[¶25.] In examining Buses’ grain bins and shed, the circuit court concluded that “other buildings on the premises” meant “any structures which are real property that are used by the owner or occupant of that premises.” Thus, under the circuit court’s interpretation “other buildings on the premises” included buddings in and around the farmstead. Lewis & Clark argues this interpretation is too broad.

Lewis & Clark points out that the term “building” is defined in SDCL 36 — 18A—1 (5) as “any structures used or intended to support or shelter any occupancy.” From this, Lewis <& Clark argues that the definition of “other buildings” in SDCL 46-8-1.2 should be construed in pari materia with SDCL 36-18A-l(5) so that “other buildings” are limited to occupied structures. We disagree.

[¶ 26.] “Statutes are construed in pari materia when they relate to the same person or thing, to the same class of person or things, or have the same purpose or object.” Goetz, 2001 SD 138, ¶ 26, 636 N.W.2d at 683 (citing 2B Sutherland, Statutory Construction at § 51:03). However, “[c]haracterization of the object or purpose [of the statute] is more important than characterization of the subject matter in determining whether different statutes are closely related enough to justify interpreting one in light of another.” Id. Thus, “the adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will normally not justify applying the rule.” 2B Sutherland, Statutory Construction at § 51:03.

[¶ 27.] Here, the statutes that Lewis & Clark seeks to construe in pari materia deal with different purposes and objects. SDCL Title 36 deals with the regulation of professions and occupations, whereas SDCL Title 46 deals with water rights and eminent domain. Because the purposes and objects of these statutes are so different, we cannot construe them in pari materia to conclude that “other buildings” must be occupied structures.

[¶ 28.] Instead, we give the words of SDCL 46-8-1.2 their plain meaning and effect. See generally Goetz, 2001 SD 138, ¶ 16, 636 N.W.2d at 681. The plain meaning of the phrase “dwelling house or other buildings on the premises” is clear. The Legislature’s disjunctive reference to a dwelling house “or other buildings” clearly reveals that it intended that the restriction apply to both occupied dwellings and to “other buildings,” i.e., unoccupied buildings on the premises. Thus, we agree with the circuit court that other buildings may include structures, whether occupied or not. However, the Legislature required that the other buildings must be “on the premises.” This means that there must be some geographical nexus with the dwelling house. Although it would not be necessary that the other building be immediately adjacent to the dwelling, it must have some legitimate use with and proximity to the dwelling house.

[¶ 29.] In this case, Buses’ grain bins and shed are located on the same farmstead as the dwelling house. In addition, the Buses use these buildings for farming purposes associated with the dwelling. Therefore, the grain bins and machine shed are “other buildings on the premises” to which the 250 foot setback applies.

2(c) Crossing a Noncommercial Orchard or Garden.

[¶ 30.] The circuit court held that “the statutory phrase ‘across any non-commercial orchard or garden’ should be given its literal meaning, which is the route ... may not physically cross a non-commercial orchard or garden.” Lewis & Clark argues that this application of SDCL 46-8-1.2 would lead to a worst case scenario where a landowner could plant an orchard or garden near or on the proposed pipeline route thereby blocking or altering the route at substantial cost to Lewis & Clark.

[¶ 31.] This concern is misplaced insofar as it assumes the pipeline may not be near an orchard or garden. We note that unlike the restriction for dwellings and other buildings, the restriction for orchards and gardens is not the 250 foot setback. Instead, the latter restriction only prohibits a pipeline from crossing an orchard or garden.

[¶ 32.] However, the facts of these cases do not involve the crossing of a noncommercial orchard or garden. Therefore, landowners correctly point out that this issue may not be ripe for adjudication. They suggest that Lewis & Clark is asking for an advisory opinion on the outcome of a hypothetical case.

[¶ 33.] Generally, “[c]ourts should decide only mature controversies, eschewing advisory opinions and conjectural questions.” Meinders v. Weber, 2000 SD 2, ¶ 39, 604 N.W.2d 248, 263 (citing Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93, 96 (1974)). Even if a court has jurisdiction to decide the question, “it should decline to do so if the issue is so premature that the court would have to speculate as to the presence of a real injury.” Boever v. South Dakota Board of Accountancy, 526 N.W.2d 747, 750 (S.D.1995) (citing Meadows of West Memphis v. City of West Memphis, 800 F.2d 212, 214 (8th Cir. 1986)).

[¶ 34.] However, these rules are not absolute. “Ripeness involves the timing of judicial review and the principle that ‘[j]udieial machinery should be conserved for problems which are real and present or imminent.’ ” Id. (citing Gottschalk v. Hegg, 89 S.D. 89, 228 N.W.2d 640, 643-44 (S.D.1975) (quoting Davis, Administrative Law Treatise, § 21.01)). “A matter is sufficiently ripe if the facts indicate imminent conflict.” Id. (citing Kneip, 214 N.W.2d at 99).

[¶ 35.] In this case there is an imminent conflict because record evidence indicates that some landowners intend to plant an orchard or garden to obstruct the pipeline. One opponent of the pipeline created a website urging landowners who are opposed to the pipeline to plant gardens. An excerpt from the website, contained in the record, states “[b]y the way, Gurneys, [a garden and seed company], still exists.... If you are thinking about an orchard or garden, I’ve always had good luck with their offerings.” Considering the opposition and imminent conflict, we address the issue presented.

[¶ 36.] Here, the plain, ordinary, and usual meaning of the phrase “across any noncommercial orchard or garden” is clear. This language leaves no room for interpretation or construction other than expressing what the Legislature clearly said. We agree with the circuit court and hold that the route proposed by Lewis & Clark may not physically cross any existing noncommercial orchard or garden. This includes a crossing below, on, or through the orchard or garden because the easement sought takes property “below, in, on, through and under the described parcel of land.” Thus, this easement would contemplate a taking in violation of SDCL 46-8-1.2 should the pipeline cross a noncommercial orchard or garden. We address the planting of an orchard or garden to obstruct the project in paragraphs 57-61 infra.

2(d) Landoumers Standing to Assert the Setback Restriction.

[¶ 37.] Two issues of standing have been presented; does a landowner have standing to object to the taking when: (i) the pipeline will cross the landowner’s real property, but the landowner (W.Buse) has no dwelling or other building within 250 feet of the pipeline and (ii) a landowner (Seeba) has a dwelling or other building located within 250 feet of the pipeline, but the pipeline is located on the land of a neighbor. The circuit court concluded that standing existed in both situations.

[¶ 38.] Whether a party has standing is a legal conclusion, which we review under the de novo standard. H & W Contracting, L.L.C. v. City of Water-town, 2001 SD 107, ¶9, 633 N.W.2d 167, 171. In general, standing is established if a party shows “that he [or she] personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Id. (citing Agar School Disk No. 58-1 v. McGee, 527 N.W.2d 282, 284 (S.D.1995) (quoting Parsons v. South Dakota Lottery Comm’n, 504 N.W.2d 593, 595 (S.D.1993))). Therefore, to have standing these parties must show some actual or threatened injury that is caused by Lewis & Clark’s proposed pipeline route.

(i) Standing of a Landowner (W.Buse) that has no Dwelling, Building, Orchard, or Garden near the Pipeline.

[¶ 39.] Lewis & Clark contends that W. Buse does not have standing to object to the placement of the pipeline because he owns no dwelling house or other buildings within 250 feet of the pipeline. The proposed pipeline runs across the W. Buse property and then onto the adjacent property of Kevin and Cindy Enterprises. While the pipeline is on the W. Buse property, it does not come within 250 feet of any dwelling or other building owned by W. Buse. It is only when the pipeline is on the Enterprises’ property that it comes within 250 feet of a building. But at that point, the Enterprises, not W. Buse, own the land and the buildings. And, the Enterprises have consented to an easement for the pipeline to cross their property. Therefore, W. Buse is attempting to assert the statutory setback right that only the Enterprises possess. Under these circumstances, W. Buse is not being threatened with a violation of the statute or any actual or threatened injury as a result of Lewis & Clark’s crossing of the Enterprises’ property. For that reason, W. Buse lacks standing to assert a violation of the requirements of SDCL 46-8-1.2.

[¶ 40.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and VON WALD, Circuit Judge, concur.

[IT 41.] SABERS, Justice, writing for the majority on Issue 2(d)(ii).

(ii) Standing of a Landowner (Seeba) who has a Dwelling House or other Building Located Within 250 feet of the Pipeline, but at that Point, the Pipeline is on the Land of a Neighbor.

[¶ 42.] The owner of a dwelling house or other building located within 250 feet of the proposed pipeline route has no legal claim to object when the pipeline is located on the land of a neighbor.

[¶ 43.] SDCL Chapter 46-8, Eminent Domain, governs the ability to condemn property for the application of water to a public use. SDCL 46-8-1 et. seq. In granting this condemnation right, the Legislature has also provided:

No routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house or other buildings on the premises or across any noncommercial orchard or garden without written consent of the owner. This section does not apply to works located in public rights-of-way.

SDCL 46-8-1.2. The pipeline, as proposed, would be within approximately 140 feet of Seeba’s dwelling house and other buildings but located on his neighbor’s property. Based on this proximity, Seeba maintains he has a right under SDCL 46-8-1.2 to withhold his consent to the proposed location of the pipeline. We reject this contention and hold that SDCL 46-8-1.2 only extends as far as a landowner’s property line.

[¶ 44.] Eminent domain is the right to take private property for a public use without the landowner’s consent. 1 Nichols on Eminent Domain, § 1.11 (3rd ed 1997); 29A CJS 2d Eminent Domain § 2 (1992). Seeba is a stranger to any eminent domain proceeding against his neighbor’s property. However, under his interpretation of SDCL 46-8-1.2, he claims he would have a right to dictate the location of an easement on his neighbor’s land. Without a specific indication otherwise, we will not presume the Legislature intended such a result.

[¶ 45.] That is not to say that Seeba could never have a claim against the pipeline company, such as for negligence in the event the pipeline bursts and damages his property. However, in the absence of SDCL 46-8-1.2, which we hold cannot be invoked by Seeba, he points to no authority indicating he has a right to control the location of the pipeline on the neighboring property. Because a landowner’s right to control the location of the pipeline route ends at his property line, we reverse the circuit court on this issue.

[¶ 46.] KONENKAMP, Justice, and VON WALD, Circuit Judge, concur.

[¶ 47.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent.

[¶ 48.] ZINTER, Justice

(dissenting).

[¶ 49.] In order to establish standing, Seeba must demonstrate some actual or threatened injury due to Lewis & Clark’s proposed route of the pipeline. See H & W Contracting, 2001 SD 107, ¶9, 633 N.W.2d at 171. To analyze this question, it must be remembered that in order to utilize eminent domain, Lewis & Clark must show that its proposed taking complies with all statutory conditions on the exercise of that right. Illinois Cent. R. Co. v. East Sioux Falls Quarry Co., 33 S.D. 63, 144 N.W. 724, 726 (1913). Although SDCL 46-8-1 generally authorizes Lewis & Clark to utilize eminent domain, SDCL 46-8-1.2 creates restrictions or conditions on the exercise of that right. SDCL 46-8-1.2 provides that “no routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling.”

[¶ 50.] In applying such statutory conditions, this Court has emphatically stated that the party exercising the statutory right of eminent domain must establish compliance with all statutory conditions. Our seminal case on this subject provides:

[I]t 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.

Illinois Cent. R. Co., 144 N.W. at 726 (emphasis original). And, in determining whether a statutory condition has been satisfied, this Court has further required strict compliance.

The power of eminent domain being a power which is possessed by [an entity] solely by being delegated to such [entity] 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).

Id.; Ehlers v. Jones, 81 S.D. 351, 135 N.W.2d 22, 22 (1965) (stating that “[proceedings to take private property by condemnation are special in character and must be conducted in strict accordance with governing statutes”). We finally note that in determining whether a statutory condition has been satisfied, we look to the purpose of the statute. Illinois Cent. R. Co. 144 N.W. at 726.

[¶ 51.] As previously noted, the purpose of SDCL 46-8-1.2 is to protect individuals from the danger and inconvenience of having a pipeline located within 250 feet of their dwelling. See supra ¶¶ 23-24. However, Lewis & Clark proposes to locate the pipeline approximately 140 feet from Seeba’s dwelling. Therefore, Seeba will be subjected to a threatened injury as a result of Lewis & Clark’s placement of the pipeline. More importantly, Lewis & Clark’s proposed location violates a statutory condition on the exercise of the right of eminent domain. “[C]ondemnation proceedings in which statutes have been ignored or with which there have been no substantial compliance are void.” Ehlers, 135 N.W.2d at 23. Therefore, for both reasons, Seeba has standing to question Lewis & Clark’s right to exercise eminent domain under SDCL ch 46-8.

[¶ 52.] Although the Court correctly observes that the proposed route of the pipeline is physically located on neighboring property, there can be no question that Lewis & Clark’s proposed route will subject Seeba to a threatened injury because the pipeline will be approximately 140 feet from his dwelling. Furthermore, SDCL 46-8-1.2 is a condition precedent to the exercise of. eminent domain. Therefore, Seeba has standing to assert the setback restriction even though the pipeline is not on his property. Were that not the case, a pipeline could be located on a neighbor’s property immediately adjacent to the foundation of another property owner’s home. Under the language of the statutes, the Legislature could not have intended such a result.

[¶ 53.] The Court finds no standing because: 1) Seeba would be a stranger to the ultimate condemnation proceeding and 2) the statute grants no right to “dictate” or “control” the location of a pipeline easement on another’s property. Supra ¶¶ 44, 45. However, even if true, these propositions are irrelevant because SDCL 46-8-1.2 does not purport to permit one landowner to dictate or control the terms of a taking on another landowner’s property. Rather, as previously noted, the statute is a restriction and condition precedent to Lewis & Clark’s right to utilize eminent domain. See supra ¶ 16. Thus, the proper question is not, as the majority opinion phrases it, whether Seeba may control the location of the pipeline on someone else’s property. The proper question, as our cases firmly demonstrate, is whether Lewis & Clark may exercise eminent domain under SDCL ch 46-8 when Lewis & Clark proposes to locate the pipeline in violation of a statutory condition on the exercise of that right.

[¶ 54.] Because Lewis and Clark has not established compliance with the 250 foot setback condition for the exercise of eminent domain under SDCL ch 46-8, I would affirm and hold that under SDCL 46-8-1.2, Seeba’s proximity to the pipeline provides standing to object to the exercise of eminent domain at that location.

[¶ 55.] GILBERTSON, Chief Justice, joins this dissent.

[¶ 56.] ZINTER, Justice, writing the opinion on Issues 2(e) and 2(f).

2(e) May a Landowner, Who has Actual Knowledge of the Intended Pipeline Route, Construct a Dwelling House, Other Building, or Noncommercial Orchard or Garden to Block or Alter Construction of the Intended Pipeline?

[¶ 57.] The circuit court concluded that:

A landowner may construct a dwelling house or other building on the premises, or plant a noncommercial garden or orchard, anywhere the owner desires at any time before a condemnation action is completed, and invoke the restrictions contained in SDCL 46-8-1.2, notwithstanding such owner’s actual knowledge of the intended pipeline route, or the filing of a public notice or condemnation case declaring the intended pipeline route.

Lewis & Clark contends that the circuit court erred in its ruling on this issue. We agree with Lewis & Clark.

[¶ 58.] The rules of property ownership at the time of taking are relatively well-established in South Dakota. Article XVII, section 18 of the South Dakota Constitution provides:

[m]unicipal 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.

(emphasis added). This right of compensation does not become vested until the date of the takings decision or the date on which the takings hearing is waived. SDCL 21-35-25. See also SDCL 21-35-10.1 (stating that the right to take may be challenged.) Thus, the condemning authority gains no right to possession of the property until it pays the full amount of condemnation judgment and costs. City of Sioux Falls v. Missouri Basin Mun. Power Agency, 2004 SD 14, ¶ 2, 675 N.W.2d 739, 740. However, the landowner’s right to retain possession during this period is not the same as the right to benefit from collateral rights associated with a taking.

[¶ 59.] The question here is whether a landowner may, before possession is transferred, obstruct a pipeline route by intentionally constructing buildings or planting orchards or gardens to invoke collateral setback restrictions. Although the parties have not directed this Court to any authority addressing this issue, we note a helpful analogy in the law that prohibits a landowner from benefiting from rising land values after the location of a taking and the scope of the project have been announced.

[¶ 60.] This scope of the project rule prohibits a landowner from asserting a claim for increased compensation as a result of increasing land values after the taking has been announced. This Court follows the test set forth in United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970), stating that: “[I]f the ‘lands were probably within the scope of the project from the time the Government was committed to it’ no enhancement in value attributable to the project is to be considered in awarding compensation.” City of Sioux Falls v. Johnson, 1999 SD 16, ¶ 42, 588 N.W.2d 904, 912-13 (citing Reynolds, 397 U.S. at 21, 90 S.Ct. at 807, 25 L.Ed.2d at 18 (quoting United States v. Miller, 317 U.S. 369, 377, 63 S.Ct. 276, 281, 87 L.Ed. 336, 344 (1943))). Under this rule, the land taken need not “be actually specified in the original plans for the project.” Id. All that must be shown is “that during the course of the planning or original construction it becomes evident that the land so situated would probably be needed for public use.” Id. In those situations, landowners may not seek the collateral benefit of enhanced land values arising from the announced taking. Similarly, we believe that if land is within the scope of a noticed taking, landowners should not be able to block or alter the route by constructing a dwelling house, other building, orchard or garden and thereafter claim entitlement to the collateral setback restrictions in SDCL 46-8-1.2.

[¶ 61.] Here, Lewis & Clark committed to the scope of the project and publicly began negotiations to obtain easements along the intended route. Therefore, just as landowners are not entitled to benefit from any advanced value attributable to the announced scope of this project, they are also not entitled to benefit from the setback limitations if they construct a building or plant an orchard or garden to obstruct or alter the announced route. Although landowners need not surrender possession until the taking, and although they may construct buildings or plant orchards or gardens at any time prior to the taking, landowners may not thereafter benefit from the collateral benefits of the setback limitation if it was evident that the land would be needed for the project.

2(f) Does a Circuit Court have Authority to Modify the Setback Restrictions in SDCL 16-8-1.2 if the Court Finds that a Modification Does the “Least Possible Injury to Private Property, Consistent with Sound Engineering Principles and with Economic Feasibility” Under SDCL 16-8-1.1?

[¶ 62.] Lewis & Clark contends that the circuit court erred when it concluded that it could judicially modify the restrictions of SDCL 46-8-1.2. The circuit court apparently anticipated that the restrictions could be onerous under certain circumstances. Therefore, it concluded that if a modification of the proposed pipeline route does the “ ‘least possible injury to private property, consistent with sound engineering principles and with economic feasibility,’ the restrictions contained in SDCL 46-8-1.2 may be judicially modified” under the authority of SDCL 46-8-l.l. We disagree with the circuit court’s legal conclusion on this issue.

[¶ 63.] The language of SDCL 46-8-1.1 and 46-8-1.2 reflects that section

I.1 creates a general restriction limiting use of eminent domain in a manner that creates the least possible injury to private property consistent with sound engineering principles and with economic feasibility. Section 1.2, however, creates additional specific setback restrictions. Thus, we construe the specific setback restrictions in section 1.2 to prevail over the general provisions of section 1.1. We do so because we have often noted that where more than one statute touches upon the same subject matter, we presume that the statute with the more specific language “relating to a particular subject will prevail over the general terms of another statute.” Martin-maas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14,17).

[¶ 64.] We also note that although SDCL 46-8-1.1 does not authorize any modification of the setback conditions in SDCL 46-8-1.2, the circuit court’s construction would repeal them. However, absent express language authorizing that repeal, we do not presume that one statute repeals the other. On the contrary, “[w]here statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them ‘harmonious and workable.’ ” City of Sioux Falls v. Eiooldt, 1997 SD 106, ¶ 14, 568 N.W.2d 764, 767 (citing Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789).

[¶ 65.] Considering these provisions together to make them harmonious and workable, we conclude that the circuit court may not judicially modify the specific limitations of SDCL 46-8-1.2 through the general provisions of SDCL 46-8-1.1. We further conclude that section 1.1 was only intended to govern general pipeline parameters not addressed in section 1.2, such as the general route, size of the pipe, or width of the easements.

[¶ 66.] Affirmed in part and reversed in part and remanded.

[¶ 67.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and YON WALD, Circuit Judge, concur.

[¶ 68.] VON WALD, Circuit Judge, sitting for MEIERHENRY, Justice, disqualified.

      . At the time of this appeal, Lewis & Clark had obtained easements on approximately seventy properties in South Dakota.

      . 1890 SD Sess Laws ch 103, § 2; RPolC 1903, § 2629; RC 1919, § 8273; SDC 1939, § 61.0416.

      . 1955 SD Sess Laws ch 431, § 1; SDC Supp 1960, § 61.0416; SDCL 46-8-2 (1967).

      . Section 138 amended SDCL 46-8-6 to now read: "[T]he right of eminent domain may not be exercised to allow two or more pipelines, canals, ditches or other water conduits to be constructed on lands owned by any person when a single pipeline, canal, ditch or other water conduit can feasibly covey the water.” 1983 SD Sess Laws ch 314, § 138 (emphasis added).
      Section 139 amended SDCL 46-8-7 to now read: "[W]hen the route for any pipeline, canal, ditch or other water conduit mentioned in this chapter is located, a correct survey and plat of the route shall be made....” 1983 SD Sess Laws ch 314, § 139 (emphasis added).

      . The lack of inadvertence is also demonstrated by examining the closely related legislative history of SDCL 46-8-1.1 (previously codified as SDCL 46-8-1), which was first enacted in 1907 and then codified in 1919 and 1939. See 1907 SD Sess Laws ch 180, § 3; RC 1919, § 8222; SDC 1939, § 61.0103. It was reenacted in 1955, codified in 1960 and 1967, and remained unchanged until 1983. See 1955 SD Sess Laws ch 430, § 1; SDC Supp 1960, § 61.0156; SDCL 46-8-1 (1967). Under these pre-1983 versions, the restriction in SDCL 46-8-1.1 was limited to canal rights-of-way: "Any canal right of way so acquired shall be so located as to do the least injury to private or public property, consistent with proper and economical engineering construction.” SDCL 46-8-1(1967) (emphasis added). Again, however, the 1983 amendment broadened the restriction by removing the "canal” limitation and broadly stating: "Any exercise of eminent domain under the provisions of this chapter shall do the least possible injury to private property, consistent with sound engineering principles and with economic feasibility.” 1983 SD Sess Laws ch 314, § 132 (emphasis added); SDCL 46-8-1.1. Thus, this amendment also broadened eminent domain restrictions from "canal right[s] of way” to "any exercise of eminent domain,” which clearly includes pipelines. 1983 SD Sess Laws ch 314, § 132.

      . This conclusion is supported by the terms of the easement taken in this case. Once this pipeline has been constructed, the easement imposes substantially less danger and inconvenience in the easement area because Lewis & Clark must: 1) restore the surface of the construction area to its original contour and character as nearly as practicable; 2) repair or relocate any agricultural drain tiles; 3) replace the topsoil at the top of the backfill over the pipe trench; 4) repair all fences; 5) maintain the pipe trench area as necessary to remedy any problems relating to soil compaction; 6) indemnify and defend the landowners from all claims, actions, liabilities, damages, costs, and expenses arising out of or in connection with the presence and activities of Lewis & Clark on the easement; and 7) pay the landowners reasonable compensation for crop damages and damages to personal property arising out of or in connection with Lewis & Clark’s presence and activities on the easement. Further, after construction is completed, the landowners retain the right to grant other easements, licenses, rights or interests with respect to the easement that do not materially interfere with the easement given to Lewis & Clark. Specifically, upon completion of construction, landowners retain: 1) the right to cultivate and harvest crops on and the right of access over and across the easement so long as such use does not interfere with Lewis & Clark's rights and 2) the right to make improvements (including structures or other objects) and to plant trees and shrubs with permission of Lewis & Clark, which permission shall not be unreasonably withheld. Thus, it is evident that following construction, the landowners and adjacent property owners will suffer substantially less danger and inconvenience in the seventy foot easement area.

      . This holding would not apply to any building. The owner must show that the building has a geographical nexus and legitimate use connected with the premises on which the dwelling house is located. For example, an old, abandoned building on an occupied farmstead would not be considered an "other building on the premises.” Similarly, a new building constructed in a field with no nexus to the dwelling would not be considered an "other building on the premises.”

      . Although this appears to have been disputed at trial, counsel for W. Buse acknowledged at oral argument that W. Buse lacked standing.

      . Although a landowner may not obstruct the pipeline within the scope of the project by intentionally constructing buildings, the circuit court found that the machine shed constructed by Buse was not constructed to try to obstruct the route. That factual finding has not been challenged on appeal.

      . SDCL 46-8-1.1 provides:
      Any exercise of the right of eminent domain under the provisions of this chapter shall do the least possible injury to private property, consistent with sound engineering principles and with economic feasibility.

      . Although the landowners in these cases also disagree with the circuit court's ruling, they contend that the issue is not before this Court as the circuit court has not modified any of the restrictions of SDCL 46-8-1.2 and may never do so. However, we see an imminent conflict and address the issue.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2006 SD 10
    Steve KRIER, Plaintiff and Appellant, v. DELL RAPIDS TOWNSHIP, Defendant and Appellee.
    No. 23669.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 7, 2005.
    Decided Jan. 25, 2006.

      Steve Krier, Sioux Falls, SD, pro se appellant.
    Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD, for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Steve Krier (Krier) appeals the circuit court’s grant of summary judgment to Dell Rapids Township on his claims of nuisance and inverse condemnation. We affirm.

Facts

[¶2.] In 1980, the Dell Rapids Township (Township) received a section of Highway 115 from the State of South Dakota. The Township named that section “Garfield Avenue.” At issue in this case is the portion of Highway 115, renamed Garfield Avenue, which runs south from Dell Rapids to South Dakota Highway 115.

[¶ 3.] Over the years, Garfield Avenue fell into a state of disrepair. A portion of the road was surfaced in blacktop, but was badly cracked. At the point where the blacktop ended, the road consisted of dirt, grass, and sinkholes. The Township used a gate to block this portion of the road because it believed it was hazardous.

[¶4.] In 1997, Krier built a house on four acres just south of Dell Rapids, adjacent to Garfield Avenue. To the north of Krier’s property was the portion of Garfield Avenue that was cracked blacktop. To the south of Krier’s property was the portion of Garfield Avenue that was blocked by the gate. As a result, there was little traffic on the portion of Garfield Avenue that abutted the Krier property.

[¶ 5.] In 2001, the Township decided to repair and resurface Garfield Avenue. Instead of resurfacing Garfield Avenue with asphalt, the Township decided to use gravel. The road was bladed, gravel was put down, and the road was bladed again. The entire one mile portion of Garfield Avenue is now a gravel road.

[¶ 6.] Krier was upset with the Township because he wanted Garfield Avenue to be a hard surface road. According to Krier, the gravel made the ruts and potholes worse. Krier complains of an accumulation of dust and dirt on his property.

[¶ 7.] Krier brought suit against the Township alleging (1) that Garfield Avenue has become a nuisance in violation of SDCL 21-10-1, and (2) that the Township was in violation of SDCL 31-13-49 for refusing to return Garfield Avenue to “its original paved surface.” Krier requested damages for loss of enjoyment and use of his property and an order directing the Township to return Garfield Avenue “to a condition that no longer constitutes a nuisance.”

[¶ 8.] The Township counterclaimed that its actions in maintaining the road were reasonable. Following discovery, the Township moved for summary judgment, which was granted.

[¶ 9.] The circuit court relied on SDCL 21-10-2 in ruling the Township’s actions did not constitute a nuisance, and that although the Township had a duty to maintain Garfield Avenue, Krier had no right to dictate the details.

[¶ 10.] Krier amended his complaint to state an inverse condemnation claim and requested damages in the amount of $30,000 for loss of value to his property. Both parties moved for summary judgment.

[¶ 11.] The circuit court granted summary judgment for the Township and denied Krier’s motion. The court found no physical invasion of Krier’s property occurred and that Krier failed to prove injuries peculiar to his land, not suffered by the public as a whole. The Township moved for taxation of disbursements. The circuit court granted the motion and awarded the Township $657.08 in taxable disbursements. Krier raises the following issues on appeal:

1. Whether the circuit court erred in granting summary judgment for the Township on the nuisance claim.
2. Whether the circuit court erred in granting summary judgment for the Township on the inverse condemnation claim.
3. Whether the circuit court erred in taxing disbursements in favor of the Township.

Standard of Review

[¶ 12.] Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15 — 6—56(c). All reasonable inferences derived from the facts are viewed in the light most favorable to the nonmoving party. Northstream Invs., Inc. v. 180k Country Store Co., 2005 SD 61, ¶ 11, 697 N.W.2d 762, 765 (citing Morgan v. Baldivin, 450 N.W.2d 783, 785 (S.D. 1990)). However, the nonmoving party must present facts showing that a genuine and material issue for trial exists. Cromwell v. Rapid City Police Dept., 2001 SD 100, ¶ 7, 632 N.W.2d 20, 23. Once we determine that the material facts are undisputed, our review is limited to whether the law was correctly applied. Schulte v. Progressive N. Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438. We will affirm the trial court if there is any legal basis to support its ruling. Id. (citing Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635).

[¶ 13.] 1. Whether the circuit court erred in granting summary judgment for the Township on the nuisance claim.

[¶ 14.] Krier argues that by failing to pave Garfield Avenue, the Township is in violation of its duty to maintain it, which is a nuisance.

[¶ 15.] Nuisance is defined in SDCL 21-10-1 as:

[U]nlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;
(4) In any way renders other persons insecure in life, or in the use of property.

(emphasis added).

[¶ 16.] SDCL 31-13-1 provides that “[t]he board of township supervisors shall construct, repair, and maintain all of the secondary roads within the township.” The word “shall,” creates an affirmative duty on the Township to repair and maintain Garfield Avenue.

[¶ 17.] In Willoughby v. Grim, we examined SDCL 31-13-1 and held that although a Township can be compelled to maintain secondary roads, courts cannot impose specific standards by which the repairs are to be made. 1998 SD 68, ¶ 1, 581 N.W.2d 165, 166. Because no standards for road repair and maintenance exist in our laws, “[d]etails for repairing and maintaining secondary roads [] remain within the conscientious direction of ...” the Township. Id. ¶ 10. Krier has no legal right to dictate the manner in which the repairs are made.

[¶ 18.] The record shows that the Township has fulfilled its duty to maintain Garfield Avenue. The road has been graveled and graded on several occasions. The Township was under no obligation to make the repairs in accord with Krier’s demands. The trial court did not err in granting summary judgment on the nuisance claim.

[¶ 19.] Krier argued in the alternative that the Township’s affirmative act of graveling Garfield Avenue constituted a nuisance. However, SDCL 21-10-2 is clear that “[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Because the Township was repairing and maintaining Garfield Avenue pursuant to a statutory obligation, its acts do not constitute a nuisance. See HedeV-Ostrowski v. City of Spearfish, 2004 SD 55, ¶ 13, 679 N.W.2d 491, 497 (“The legislature exempts from the definition of nuisance those things done or maintained under statutory authority”).

[If 20.] 2. Whether the circuit court erred in granting summary judgment in favor of the Township on Krier’s inverse condemnation claim.

[¶ 21.] Krier brought his inverse condemnation claim under Article VI, section 13 of our State Constitution, which provides: “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.” Article VI, section 13 of our Constitution differs from the Fifth Amendment of the Federal Constitution in two key respects. First, and although not relevant to the present issue, we impose “public use” requirements that are more strict than the federal baseline. Benson v. State, 2006 SD 8, ¶42, 710 N.W.2d 131, 2006 WL 213746 (citing III. Cent. R.R. Co. v. E. Sioux Falls Quarry, 33 S.D. 63, 144 N.W. 724 (1913) (adopting the “use by the public” test)). ■ Second, our Constitution requires that the government compensate a property owner not only when a taking has occurred, but also when private property has been “damaged.” The Federal Constitution does not contain a “damage” clause. Compare SD Const, art. VI, § 13 with U.S. Const, amend. 5.

[¶ 22.] Under the Federal Constitution, a plaintiff must assert one of four types of takings: (1) a per se physical taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); (2) a per se regulatory taking which deprives a landowner of all economically viable use of his property pursuant to Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014,112 S.Ct. 2886, 2895,120 L.Ed.2d 798 ■ (1992); (3) a regulatory taking under Penn Central Transportation Co., v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); or (4) a land-use exaction violating the standards set forth in Nollan v. California Coastal Commission, 483 U.S. 825, 831-32, 107 S.Ct. 3141, 3147-49, 97 L.Ed.2d 677 (1987), and Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S.Ct. 2309, 2316, 129 L.Ed.2d 304 (1994). Benson, 2006 SD 8, ¶ 41, 710 NW2d at 145, 2006 WL 213746 (citing Lingle v. Chevron USA Inc., 544 U.S. 528, 125 S.Ct. 2074, 2087,161 L.Ed.2d 876 (2005)).

[¶ 23.] Our case law provides that the “damage” clause in our State Constitution affords more rights to our citizens than the Fifth Amendment to the Federal Constitution. Searle v. City of Lead examined the history of the damage clause:

The constitutional provision is unquestionably a wise and just one, and well calculated to protect property owners from injustice and wrong on the part of municipal or other corporations or individuals invested with the privilege of taking private property for public use, and should be given a liberal construction by the courts, in order to make it effectual in the protection of the rights of the citizen. The words “or damaged” were, without doubt, added to the usual provisions contained in earlier constitutions for the purpose of extending the remedy to incidental or consequential injuries to property, not actually taken for public use, in the ordinary acceptation of that term[.]

10 S.D. 312, 317-18, 73 N.W. 101, 103 (1897). Thus, the South Dakota Constitution provides an additional theory by which a plaintiff may bring a claim for damages against the state. In State Highway Commission v. Bloom, we noted that:

Under the taking and damaging clause of our constitution ... it is a basic rule of this jurisdiction governing compensation for consequential damages that where no part of an owner’s land is taken but because of the taking and use of other property so located as to cause damage to an owner’s land, such damage is compensable if the consequential injury is peculiar to the owner’s land and not of a kind suffered by the public as a whole.

77 S.D. 452, 461, 93 N.W.2d 572, 577 (1958). We further noted that “[t]his rule has been applied in a number of South Dakota cases involving a change of street grade to the damage of abutting property not physically invaded.” Id. (citing Searle, 10 S.D. 312, 73 N.W. 101; Whittaker v. City of Deadwood, 12 S.D. 608, 82 N.W. 202 (1900)).

[¶ 24.] In Hurley v. State, we recognized that the consequential damages rule extends beyond the change of street grade cases. 82 S.D. 156, 161-62, 143 N.W.2d 722, 725 (1966). Specifically, we held that under the damage clause “a landowner may claim compensation for the destruction or disturbance of easements of light and air, and of accessibility, or of such other intangible rights as he enjoys in connection with and as incidental to the ownership of the land itself.” Id. at 161, 143 N.W.2d at 725 (citation omitted). Hurley involved the state’s creation of a barrier that impaired the plaintiffs right of access to a road abutting their property. Id. at 159, 143 N.W.2d at 724. Ultimately, the state was required to compensate the plaintiffs for the obstruction. Id. at 164, 143 N.W.2d at 726.

[¶ 25.] Our precedent involving the damage clause is not entirely consistent. In Hyde v. Minnesota D. & P. Railway Co., the Court stated that the words “or damaged” did not broaden the effect of our constitutional provision over what it would have been had the word “taken” been used alone. 29 S.D. 220, 228-29, 136 N.W. 92, 96 (1912). Hyde held that the damages clause did not extend the right of recovery “to include that for any injury for which damages could not have been recovered at common law.” Id. Hyde is a two-to-one plurality opinion that is nearly one hundred years old. It has been impliedly overruled by both Bloom and Hurley. To the extent that Hyde conflicts with Bloom, Hurley, and the plain language of Article VI, section 13, it is expressly overruled.

[¶ 26.] A plaintiff can recover under the consequential damages rule if he or she can prove “the consequential injury is peculiar to [their] land and not of a kind suffered by the public as a whole.” Bloom, 77 S.D. at 461, 93 N.W.2d at 577; see also Hurley, 82 S.D. at 162, 143 N.W.2d at 725. The injury to the plaintiff “must be different in kind and not merely in degree from that experienced by the general public.” Hurley, 82 S.D. at 162, 143 N.W.2d at 726 (citing Hendrickson v. State, 267 Minn. 436, 127 N.W.2d 165 (1964)).

[¶ 27.] Krier brought this action under the consequential damages theory. He does not argue that the Township changed the grade of Garfield Avenue, or that it blocked his right of access to Garfield Avenue or his property. Indeed, the Township, through its repair of the road and removal of the gate, has actually increased access to Krier’s property from the south. Krier’s argument is that the dust and gravel from Garfield Avenue continually invades his property and has diminished its value.

[¶28.] Krier does not claim the injury to his property is unique from that suffered by other landowners, except that he built his home prior to the resurfacing of Garfield Avenue, whereas the other homes were built afterwards. Thus, Krier contends that only his property has diminished in value as a result of the resurfacing. Krier is confusing the damages resulting from the injury with the injury. The injury to Krier’s property is the same as the injury to the other properties. It differs only in amount or degree. The fact that a plaintiff suffers a higher degree of injury or damages will not entitle him to recovery under the consequential damages rule. Hurley, 82 S.D. at 163, 143 N.W.2d at 726. Krier has failed to produce any evidence of a separate and distinct injury and, as a result, has made no showing the circuit court erred in granting summary judgment for the Township.

[¶ 29.] 3. Whether the circuit court erred in taxing disbursements in favor of the Township.

[¶ 30.] Krier’s final argument is that the circuit court erred in taxing disbursements of $657.08 in favor of the Township. SDCL 15-17-37 provides:

The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter’s attendance fees, court appointed experts, and other similar expenses and charges. These expenditures are termed “disbursements” and are taxed pursuant to [SDCL] 15-6-54(b).

Krier fails to specify his objections to the taxation of disbursements by the circuit court. Instead, he generally relies on SDCL 15-17-52, which provides that “[t]he court may limit the taxation of disbursements in the interests of justice,” and SDCL 15-17-53, which provides that a trial court may disallow taxation of disbursements that would be “oppressive or work a hardship.” However, in the absence of specific objections to the taxation of disbursements, there is no showing of error.

[¶ 31.] The statutes are clear that disbursement awards are within the discretion of the trial court. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994). Krier has failed to show where the trial court has abused its discretion.

[¶ 32.] Affirmed.

[¶ 33.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Krier amended his complaint to request damages for an alleged incident in which a Township snow plow damaged his mailbox and landscaping. That matter is not before us on appeal.

      . Although Willoughby involved an action for mandamus, it applies because Krier’s nuisance action is based on the Township’s alleged omission to perform a duty.

      . Krier claims the Township neglected its duty under SDCL 31-13-49. That statute provides:
      In the resolution of necessity it may be provided that the township will pay any portion or all of the cost of resurfacing, rebuilding, or repaving the portion of any street in which pavement has previously been placed or which has been previously constructed within the township.

        Id. Krier does not argue that the Township has refused to pay for any portion of resurfacing Garfield Avenue. Instead, he argues that the Township is under an obligation to repave it. However, the statute is clear that the Township can ”resurfac[e], rebuild[], or re-pav[e].” Id. Thus, Krier’s contentions are at odds with the express language of the statute.

      . The North Dakota Supreme Court recognized that the words "or damaged” affords more protection than the federal constitution. King v. Stark County, 67 N.D. 260, 271 N.W. 771, 773-74 (1937). By 1937, almost every state had amended its constitution to include the "or damages” words. Id. at 774 (citing Lewis, Eminent Domain (3d Ed.) §§ 363-64).

      . The Township invites us to address the extreme burden that would be placed on rural townships if compensation was required every time they graveled a secondary road. However, we need not address the Township's argument to reach our decision in the present case.


author: MEIERHENRY, Justice.

text:
    2006 SD 9
    In the Matter of Marvin M. SCHWAN 1992 GREAT, GREAT GRANDCHILDREN’S TRUST.
    No. 23525.
    Supreme Court of South Dakota.
    Argued on Oct. 5, 2005.
    Decided Jan. 25, 2006.

      Mark F. Marshall of Davenport, Evans, Hurwitz & Smith, L.L.P., Sioux Falls, SD, Eric J. Magnuson, Larry R. Henneman of Rider, Bennett, L.L.P., Minneapolis, MN, for appellants Trustees of Marvin M. Schwan 1992 Great, Great Grandchildren’s Trust.
    Thomas J. Welk, Darin W. Larson of Boyce, Greenfield, Pashby & Welk, Sioux Falls, SD, Adíen I. Saeks, Jane F. Godfrey of Leonard, Street & Deinard, P.A., Minneapolis, MN, for appellees, Guardian Ad Litem Lorrie Schwan-Okerlund, Mark D. Schwan, David J. Schwan, and Paul M. Schwan.
   MEIERHENRY, Justice.

[¶ 1.] Trustees of the Schwan Great, Great Grandchildren’s Trust (3G Trust) appeal from an order regarding accounting and trustee’s fees wherein the circuit court disapproved of trustee fees paid to the trustee Lawrence Burgdorf. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Estate Plan of Marvin M. Schwan

[¶ 2.] Marvin M. Schwan (Schwan) was the founder and chief executive officer of Schwan Food Company (Schwan Food), formerly known as Schwan’s Sales Enterprises, Inc., a large frozen food company based in Marshall, Minnesota. Before his death, Schwan established a comprehensive estate plan which included a will, a revocable trust, and various other trusts. Part of Schwan’s estate plan was to transfer his Schwan Food shares to entities created by the estate plan. Thus, upon Schwan’s death, all of his Schwan Food voting and nonvoting stock was transferred from the revocable trust, which then held the stock, to the Schwan Foundation Trust (Foundation), a charitable trust. His estate plan also provided for Schwan Food to redeem the stock from the Foundation. A majority of the voting stock eventually was transferred to the 3G Trust, which was created for the benefit of Schwan’s unborn great, great grandchildren and descendents. This appeal involves the 3G Trust and the Foundation.

[¶ 3.] Schwan named himself, his brother Alfred Schwan (Alfred), and Schwan’s long-time friend and associate Lawrence Burgdorf (Burgdorf) as co-trustees of the 3G Trust and the Foundation. Alfred and Burgdorf had worked with Schwan for many years in the management of Schwan Food. Alfred served as chief executive officer and chairman of the board, and Burgdorf served as director of corporate contributions. The three men served as co-trustees of the Foundation and 3G trusts until Schwan’s death. After Schwan’s death, Alfred and Burgdorf continued to serve as trustees.

[¶ 4.] Under the terms of the 3G Trust, a separate succession committee selects successor trustees and sets annual trustee fees. The original members of the succession committee were Schwan, Alfred, Burgdorf, and a fourth individual. Only Alfred and Burgdorf remain from the original committee. Three new members have been added. The committee sets trustee fees based on the guidelines in the 3G Trust document. The guidelines require that the annual trustee fees be “not less than One Hundred Thousand Dollars ($100,000) and not more than Two Hundred Thousand Dollars ($200,000).” The trustee fees are offset: (1) by compensation earned as a trustee from other Schwan trusts; or (2) by compensation earned as an employee of Schwan Food or an “affiliated organization.” Whether the Foundation is considered an “affiliated organization” of Schwan Food forms the basis of this dispute.

[¶ 5.] The Foundation was created as a charitable trust under section 501(c)(3) of the Internal Revenue Code of 1986. The Foundation instrument originally appointed Schwan, Alfred, and Burgdorf as trustees. When this dispute arose, Alfred and Burgdorf served as its sole trustees. Like the 3G Trust, the Foundation instrument also established a trust succession committee responsible for setting fees and appointing successor trustees of the trust. The Foundation instrument, however, merely provided that the trustees receive “reasonable compensation” without an offset provision.

Events Following Schwan’s Death

[¶ 6.] Schwan died on May 9, 1993. As directed by his estate plan, the trustees of his revocable trust transferred all of Schwan’s voting and nonvoting stock in Schwan Food to the Foundation. Thus, after Schwan’s death, the Foundation owned a majority of the voting and nonvoting stock of Schwan Food. Pursuant to Sehwan’s estate plan directive, Schwan Food subsequently redeemed all of the stock held by the Foundation. This transaction effectively stripped the Foundation of any ownership interest in Schwan Food and fully funded the Foundation. At the time that this action arose, the Foundation had assets of approximately one billion dollars.

[¶ 7.] In 1996, Burgdorf resigned from his position as Schwan Food’s director of corporate contributions. He then became the executive director of the Foundation. In addition, he continued to serve as a trustee for both the Foundation and the 3G Trust. The Foundation paid Burgdorf an annual director’s salary of $150,000. The 3G Trust paid him annual trustee fees of $150,000. The propriety of Burgdorf receiving trustee fees from 3G Trust in addition to his Foundation director’s salary first arose in 2003. Burgdorf and Alfred, as trustees of the 3G Trust, addressed the issue of whether the 3G Trust provision required an offset. They concluded that the offset provision did not apply because the Foundation and Schwan Food were not “affiliated organizations.”

[¶ 8.] In early 2004, the 3G trustees sought court supervision of the 3G Trust. The trustees asked the court to appoint Schwan’s children to serve as guardians ad litem for the 3G Trust beneficiaries, Schwan’s yet unborn great, great grandchildren and future descendents. The circuit court ordered supervision and appointed Schwan’s children as guardians ad litem (guardians).

[¶ 9.] In June 2004, the 3G trustees petitioned for court approval of the payment of trustee fees. The guardians objected to Burgdorfs trustee fees. They claimed that the offset provision of the 3G Trust required the reduction of Burgdorfs trustee fees by the amount of Burgdorfs Foundation director’s salary.

[¶ 10.] The circuit court ruled that the trustees of the 3G Trust did not have absolute power, to interpret the trust’s terms and that the court had the power to review the trustees’ interpretation. The circuit court then determined that the Foundation and Schwan Food were “affiliated organizations” for the purposes of the 3G Trust’s offset provision. Consequently, the court ordered the reduction of fees received by Burgdorf as trustee of the 3G Trust by the amount of his salary as executive director of the Foundation. Burg-dorf and Alfred, as trustees of the 3G Trust, now appeal.

ISSUE

Whether the circuit court erred by interpreting the trust provision to require an offset of Burgdorfs salary as executive director of the Foundation against his trustee fee from the 3G Trust.

STANDARD OF REVIEW

[¶ 11.] The interpretation of the terms of a trust is a. question of law and is reviewed de novo. See In re Estate of Stevenson, 2000 SD 24, ¶¶7, 14, 605 N.W.2d 818, 820-21; cf. In re Estate of Klauzer, 2000 SD 7, ¶ 10, 604 N.W.2d 474, 477 (providing that a trial court’s interpretation of a will is reviewed de novo).

DECISION

[¶ 12.] The duty of the court is to carry out the wishes of the trust creator. Estate of Stevenson, 2000 SD 24, ¶ 14, 605 N.W.2d at 821. In order to do so, we look to the language of the trust instrument. Id. “In interpreting a trust instrument, we must first attempt to ascertain and give effect to the settlor’s intention. Thus, we must interpret the instrument as written.” Id. In the 3G Trust instrument, Schwan specifically designates the amount and manner of determining trustee fees for the 3G Trust. The 3G Trust provides:

Trustees’ Fees; Committee Fees. Each Trustee shall receive an annual fee (in addition to reimbursement of reasonable expenses), payable in quarterly installments, determined by the Trustee Succession Committee in an amount not less than One Hundred Thousand Dollars ($100,000) and not more than Two Hundred Thousand Dollars ($200,000), which limits shall be increased annually on the anniversary of the signing of this instrument by the percentage, if any, by which the United States Department of Labor Consumer Price Index for All Urban Consumers for the district which includes Marshall, Minnesota, shall have increased prior to said anniversary. Said fee shall be offset by any Trustee’s fees earned during the year by a Trustee as Trustee of another trust created by the Grantor, and shall be offset by the aggregate amount of the salaries and other cash compensation, if any, received during the year by a Trustee from Schwan’s Sales Enterprises, Inc., or an affiliated organization or from any one or more organizations whose stock or other securities are held in trust hereunder other than an organization less than 2% of any class of whose stock or other securities of any class is held in trust hereunder,

(emphasis added). This trust provision clearly requires that each trustee “receive an annual fee (in addition to reimbursement of reasonable expenses).” The annual amount is set by the 3G Trust Succession Committee “in an amount not less than One Hundred Thousand Dollars ($100,000) and not more than Two Hundred Thousand Dollars ($200,000).” The language of the 3G Trust specifically requires that the annual fee “be offset by any Trustee’s fees earned during the year as a Trustee of another trust created by [Schwan].” The language further requires an offset by salaries from affiliated organizations.

[¶ 13.] This dispute involves the meaning of the term “affiliated organization.” The language in question specifies that trustee fees from the 3G Trust are offset as follows:

Said fee ... shall be offset by the aggregate amount of the salaries and other cash compensation, if any, received during the year by a Trustee from Schwan’s Sales Enterprises, Inc., or an affiliated organization....

In other words, the question is which organizations did Schwan regard as affiliated with Schwan Food. To answer the question, we must first look at the words he chose to use in expressing his intention and in the words he did not choose.

[¶ 14.] The trial court equated the phrase “affiliated organization” with the term “affiliate” found in the Uniform Trusts Act and relied on the legislative definition of “affiliate” found in SDCL 55-4-1(1). The problem with equating these two terms, as the guardians point out in their brief, is that the plain meaning of the term “affiliated organization” is different from the term “affiliate.” In the 3G Trust document, Schwan included the term “affiliate” in the overall definition of “Schwan’s Sales Enterprises, Inc.” (Schwan Food). In the 3G Trust, Schwan directed that “[a]ny reference to ‘Schwan’s Sales Enterprises, Inc.’ in this document shall be deemed to refer to said corporation ... and to any affiliate of said corporation.” (emphasis added). The trust provides:

Provisions Relating to Schwan’s Sales Enterprises, Inc. The Grantor expects to transfer to the Trustees certain voting securities of Schwan’s Sales Enterprises, Inc., and expects that such securities will be the sole or principal holding of the Trustees. Any reference to “Schwan’s Sales Enterprises, Inc.” in this document shall be deemed to refer to said corporation, to the proceeds of any reorganization, merger, division or similar transaction affecting its identity or capitalization, and to any affiliate of said corporation (including, without limitation, any member of a controlled group as defined in section 1563 of the Code in which said corporation is included). A principal purpose of the Grantor in establishing this trust is to provide for the continuation and prosperity of Schwan’s Sales Enterprises, Inc., under centralized management....

(emphasis added). Since any “affiliate” is already included in any reference to Schwan Sales Enterprises, Inc., the offset “from Schwan’s Sales Enterprises, Inc.”' already includes an offset from its affiliates. Thus, the additional phrase requiring an offset from “an affiliated organiza tion” suggests something in addition to and different from the term “affiliate.”

[¶ 15.] One of the principles of interpretation requires us to attempt, as much as possible, to give meaning to all the words and provisions in the trust. See Estate of Klauzer, 2000 SD 7, ¶ 10, 604 N.W.2d at 477; In re Bock’s Estate, 85 S.D. 113, 115, 177 N.W.2d 734, 735. In applying this principle when interpreting a will, we stated, “[i]n ascertaining a testator’s intent all the words and provisions appearing in his will must be given effect as far as possible, and none should be cast aside as meaningless. To hold otherwise would be to convict a testator of performing useless acts.” Bock’s Estate, 85 S.D. at 115, 177 N.W.2d at 735 (citation omitted). This same principle applies to ascertaining a settlor’s intent in a trust document. When interpreting provisions of a trust, ordinary words are given their usual and ordinary meaning. See Rowett v. McFarland, 394 N.W.2d 298, 301 (S.D. 1986).

[¶ 16.] Consequently, we look to the usual and ordinary meaning of the words Schwan used. Schwan does not use the noun “affiliate” in the offset provision. The noun he uses is “organization.” Salaries from organizations either “affiliated” with Schwan Foods or whose stock or securities are held by the 3G Trust are required to be offset. The focus is on the word “organization.” To substitute the term “affiliate” for the term “an affiliated organization” would render the word “organization” redundant and meaningless. Thus, to give effect to the term “an affiliated organization,” we assume that Schwan must have intended an entity other than an “affiliate” of Schwan Food as defined elsewhere in the trust.

[¶ 17.] “Organization” is defined as “something organized” or “a group of people that has a more or less constant membership, a body of officers, a purpose, and usually a set of regulations.” Webster’s Third New International Dictionary 1590 (1986). The modifying word “affiliated,” means “attach[ed] as a member or branch” or positioned or associated “in close connection.” Id. at 35. It therefore follows from these definitions that the common and ordinary meaning of the phrase “affiliated organization,” in the context of the 3G Trust, means an organization closely associated with Schwan Food.

[¶ 18.] Historically, the Foundation was closely associated with Schwan Food. There were times in the administration of the Schwan trusts and estate plans when the Foundation would have been considered an affiliated organization of Schwan Food. At. one point, all of Schwan’s voting and nonvoting stock in Schwan Food was held by the Foundation. Thus, at Schwan’s death, the Foundation controlled a majority of the voting and nonvoting stock of Schwan Food. At that time, it would have met the broad category of “an affiliated organization.” The affiliation, however, changed, after Schwan’s death. Schwan’s estate plan directed that Schwan Food was to redeem all of the stock held by the Foundation. Upon redemption of the stock, the affiliation of the two organizations was severed. The infusion of cash resulting from the redemption funded the Foundation. The control of the stock shifted to Schwan Food and subsequently, in part, to the 3G Trust. At the time Burgdorf assumed the Foundation director position, the Foundation was no longer affiliated with Schwan Food, nor is it today. Therefore, under the plain meaning of the 3G Trust’s terms and based upon the facts, we conclude that the Foundation is not an affiliated organization of Schwan Food.

[¶ 19.] The trial court’s only basis for finding an affiliation is the indirect connection between Schwan Food and the Foundation through the people who currently serve as the trustees of the 3G Trust. The trial court reasoned as follows: the 3G Trust controls Schwan Food; Burgdorf and Alfred are trustees of the 3G Trust; Burgdorf and Alfred are also trustees of the Foundation; therefore, Burgdorf and Alfred control both Schwan Food and the Foundation, making the Foundation an “affiliate” of Schwan Food. The trial court arrived at his conclusion by finding the phrase, “an affiliated organization” ambiguous and turning to statutory definitions of “affiliate” and “person.”

[¶ 20.] The trial court’s finding of affiliation based solely on the individual identities of the trustees is in error. South Dakota trust law specifically states that “[u]nless it is otherwise provided by the trust instrument, or an amendment thereof, or by court order, all powers of a trustee shall be attached to the office and shall not be personal.” SDCL 55-4-2. Therefore, for both the 3G Trust and the Foundation, the powers of the trustee attach to the office, not to the individual holding the office. The trustee’s power exists independent and regardless of the individual in the position. The 3G and Foundation trusts have separate and independent boards of trustees. Each board of trustees has a separate trustee succession committee. In both trusts, the established succession committee has the power to appoint individuals as trustees. Although Alfred and Burgdorf currently serve as trustees for both trusts, clearly the terms of the trust do not require or even contemplate such overlap in the future. Thus, under the facts of this case, the identities of individuals acting as trustees cannot be used to connect the Foundation and Schwan Food in order to make them “affiliated organizations.”

[¶ 21.] Even if the term “affiliated organizations” is considered ambiguous, as the trial court determined, we cannot say that the interpretation and application by the trustees was unreasonable or in bad faith. Ambiguity requires the court first to look at the other provisions of a trust to determine the testator’s intent. In doing so, it is apparent that Schwan intended to give the trustees broad discretion in their interpretation of ambiguities. He directed in the 3G Trust as follows:

All powers and discretion given to the Trustees shall be exercisable in their sole discretion, and all their decisions and determinations (including determinations of the meaning and reference of any ambiguous expression used in this instrument or the identification of any beneficiary) made in good faith and in the exercise of a reasonable judgment shall be conclusive upon all persons....

Under South Dakota law, “discretionary power conferred upon a trustee is presumed not to be left to his arbitrary discretion but may be controlled by the circuit court, if not reasonably exercised, unless an absolute discretion is clearly conferred by the declaration of trust.” SDCL 55-3-9.

[¶ 22.] In this case, the trust provision gives the trustees “sole discretion” to exercise their powers and discretion within the bounds of good faith and reasonable judgment. This discretion includes decisions concerning the meaning of any “ambiguous expression” of the trust instrument. Although the guardians may not agree with the determination of the trustees, we cannot say the trustees’ determination was unreasonable.

[¶ 23.] We reverse.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . A third trustee was not appointed after Marvin's death. Under the trust instrument, the Foundation may operate with only two trustees. ’

      . The 3G Trust now owns a majority of the voting stock in Schwan Food and as of December 31, 2003, the assets of 3G Trust were valued at $54 million. The Grandchildren’s Trust, another of the trusts Schwan established, owns about 99% of the nonvoting stock in Schwan Food.

      . The propriety of Burgdorf serving in that capacity is not at issue in this appeal.

      . Burgdorf received the trustee fees for 2003 and the first two quarters of 2004.

      . In January 2003, a third trustee was appointed for the 3G Trust. While it is disputed whether the decision regarding the offset was made before or after the appointment of the third trustee, it is undisputed that the third trustee did not take part in the decision.

      . Marvin's four children are Lorrie Schwan-Okerlund, Mark Schwan, David Schwan, and Paul A. Schwan.

      . In their brief, the guardians argue that Burgdorf “was in a conflict of interest position” and that "[pjursuant to his duty of loyalty to the beneficiaries, Burgdorf should not have even participated” in the decision concerning the offset. The trial court made no findings in that regard nor did the guardians file a notice of review. Consequently, this argument is not properly before the Court.

      . Schwan's Sales Enterprises, Inc. is now known as Schwan Food Company.

      . The trial court applied statutory definitions in SDCL 55-4-1(1) and (2) to arrive at the following analysis:
      The Foundation is controlled by the Trustees of the Foundation, i.e., Burgdorf and Alfred. [Schwan Food] is controlled by the Board of Directors, who answer to the stockholders. Alfred is Chairman of the Board of Directors of [Schwan Food], and the 3G Trust owns over 50% of the voting stock of [Schwan Food], giving the trustees of the 3G Trust control over [Schwan Food], and control over the Board of Directors of the company. Alfred and Burg-dorf are two of the three trustees of the 3G Trust. Therefore, Alfred and Burgdorf collectively have control of [Schwan Food]. Alfred and Burgdorf, as sole trustees of the Foundation, and as the majority of the trustees in control of the 3G Trust, control both the Foundation and [Schwan Food], Under South Dakota law, the Foundation and [Schwan Food] are therefore under common control and are affiliated organizations.

      . Regardless of whether a trustee receives any compensation, the trustee must also "use at least ordinary care and diligence in the execution of his trust.” SDCL 55-3-10.