South Dakota Department of Health v. Owen

WOLLMAN, Justice

(dissenting in part, concurring in part).

As I read the record, there is no need to remand on the issue whether the Owens are entitled to compensation for the elk that were destroyed by the State because that issue has already been decided by the trial court. On May 2, 1983, the trial court entered findings of fact and conclusions of law with respect to the matter of compensation. Finding of Fact IV states that: “The South Dakota Department of Health has damaged the property of the Owens for public use without just compensation.” Conclusion of Law II states that: “The destruction of the Owens’ elk is a taking of private property for public use amounting to condemnation for which the Owens are entitled to just compensation.” This finding and this conclusion reflects the trial court’s decision, as set forth in its supplemental memorandum opinion of March 15, 1982, that

the Court has condemned the property of Owen’s for the health and welfare of the People of the State of South Dakota. Based on the recent Supreme Court case of Boland, et al, vs. Rapid City vs. State, this condemnation, negative of inverse as it may be, requires the compensation of the Owen’s for the loss of the diseased Elk.

*53Now it very well may be, as the State pointed out during oral argument in this ease, that there is an inconsistency between the trial court’s findings of fact and conclusions of law with respect to the necessity of the destruction of the elk and its subsequent findings of fact and conclusions of law regarding the award of compensation, but it is quite clear from the record that the trial judge was aware of our decision in Boland v. City of Rapid City, 315 N.W.2d 496 (S.D.1982), which was handed down on February 3, 1982, and that he based his decision to award compensation on our decision in the Boland case. That being the state of the record, I see no point in remanding the case to the trial court for a finding that has already been made.

I agree with the majority opinion that the case must be remanded for a redetermination of the amount of the compensation to be awarded for the elk that were destroyed.