STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 13, 1968

J. B. Lammers
State's Attorney, Lake County
Madison, South Dakota 57042

OFFICIAL OPINION NO. 68-47

Acquisition by Housing & Redevelopment Commission of property dedicated to municipality for a public square

Dear Mr. Lammers:

You have requested my official opinion to determine whether or not a Housing & Redevelopment Commission of the City of Madison, Lake County, South Dakota may obtain property dedicated to the City of Madison, Lake County, South Dakota for use as a public square, for the purpose of erecting buildings for low rent housing for the elderly.

You have suggested that perhaps a gift or sale of such land by the City to such Commission would be proper, or, if such were not proper, that a condemnation proceedings be commenced, with stipulations and out-of-court settlement.

It is my opinion that your question is subject to the principle as set forth by our Supreme Court in Patrick v. Blake, 70 SD 494, 19 NW 2d 220. From your description this property was accepted by the municipality for certain specified purposes. The City of Madison is a voluntary trustee of such property. It may be used only for the purposes as expressed in the dedicated trust. The construction of housing units, no matter how laudable the purpose may be, is inconsistent with the purposes of the trust.

Because of this inconsistency there is no question that the City of Madison cannot lawfully dedicate, grant, donate, or sell this property. The only method that may be open is by condemnation.

This condemnation suit, however, could not be commenced by the municipality, for it is the voluntary trustee. The question of whether or not an inferior body, created by the municipality through legislative sanction, could maintain such an action to destroy a trust is serious and one that I feel I should not answer.

Certainly in such condemnation proceeding there could be no stipulations and out-of-court settlements. The City of Madison, as the voluntary trustee, has a moral, if not a legal duty, to oppose the change of use from that stipulated and accepted, as any other voluntary trustee.

Whether or not such suit will lie at all, in view of the trust aspect of such dedication, is one for the Court to determine and a matter upon which it would be improper for me to comment. If the Court would permit such condemnation suit to proceed, there seems little question that the amount of damages to be paid would have to be fixed by the jury. Any capitulation or stipulation by the municipality would be foreign to its fiduciary duties as trustee.

Respectfully submitted,

Frank L. Farrar
Attorney General