STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

March 12, 1969

Lyndon V. Hanson, Director
State of South Dakota
Aeronautics Commission

Pierre, South Dakota 57501

OFFICIAL OPINION NO. 69-26

Legality of claim of the Northwestern Public Service Company against the South Dakota  Aeronautics Commission and the City of Kimball

Dear Mr. Hanson:

This letter is in response to your request for an official opinion as to the legality of the claim of the Northwestern Public Service Company against the South Dakota Aeronautics Commission and the City of Kimball, as the co-sponsors of the Kimball Municipal Airport being designated as Project No. 9-29-054-6201. The Airport Development Project is located on the NE 1/4, Township 103 North, Range 68 West in Brule County, South Dakota, and the public section line highway along said tract of land, upon which the Northwestern Public Service Company has erected its pole and transmission lines which intersect and cross the clear zone approaches to said airport and their removal became essential and necessary. The record in this proceeding clearly discloses that on the 12th day of November, 1946, the Central Electric and Gas Company, predecessor of the Northwestern Public Service Company, obtained a franchise or right-of-way to erect poles and wires along and upon the subject highway and on that portion of the land devoted for public use of a highway, which rights were purchased by the present occupant and present holder of the easement.

On the 11th day of January, 1962, a contract was entered into between the South Dakota Aeronautics Commission and the Northwestern Public Service Company to relocate the pole and transmission line and clear the runway approaches of the airport, under the terms of which contract the Northwestern Public Service Company was to be paid not over $5,000. The itemized statement submitted pursuant to the contract revealed that the entire expense was in excess of that amount and the Northwestern Public Service Company has fully performed its obligations under the terms of the contract. The question now arises whether the $5,000 provided for in the contract constitutes a legal and binding obligation on the South Dakota Aeronautics Commission and the City of Kimball to discharge the agreement therein made between the parties.

Pursuant to the provisions of Section 28.1001 and 28.1002 of the South Dakota Code, the Central Electric and Gas Company acquired a valid right-of-way permit from the Board of County Commissioners of Brule County, South Dakota, the rights over which were acquired by the Northwestern Public Service Company.

It is my opinion that the item of $5,000 constitutes a valid, legal and binding obligation on the part of the South Dakota Aeronautics Commission and the City of Kimball as the co-sponsors of the airport improvement.

Respectfully submitted,

Gordon Mydland
Attorney General