#24602-rev & rem-JKK

2008 SD 54

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  * * * *

KENNETH M. TONSAGER, SR. and
DARLENE M. TONSAGER,                    Plaintiffs and Appellants,

      v.

DAVID LEROY LAQUA,                      Defendant and Appellee,

WALL LAKE SANITARY DISTRICT,            Third Party Defendant and Appellee.

                                  * * * *

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                  * * * *

                   HONORABLE KATHLEEN K. CALDWELL
                               Judge

                                  * * * *

MICHAEL E. UNKE of
Unke Law Office                               Attorney for plaintiffs
Salem, South Dakota                           and appellants.

JENNIFER L. LARSEN of
Hagen, Wilka & Archer, PC                     Attorneys for defendant and
Sioux Falls, South Dakota                     appellee David Laqua.

PAUL H. LINDE of                              Attorneys for defendant and
Schaffer Law Office, Prof., LLC               appellee Wall Lake Sanitary
Sioux Falls, South Dakota                     District.

                                  * * * *
                                             CONSIDERED ON BRIEFS
                                             ON JANUARY 7, 2008

                                             OPINION FILED 06/25/08
#24602

KONENKAMP, Justice

[¶1.]        This is a dispute between adjoining landowners on the extent and

meaning of an easement granted to a sanitary sewer district. The circuit court

concluded that the easement was private, and therefore, the neighboring landowner

could not access the public sewer system through the adjoining landowner’s

property. Because the easement was granted to a sanitary sewer district, a

governmental entity, and the district clearly accepted the grant by its use of the

sewer facilities, the court erred in declaring the easement private. We reverse and

remand.

                                     Background

[¶2.]        Kenneth, Sr. and Darlene Tonsager (plaintiffs) brought suit against

their neighbor David Laqua (defendant), seeking a permanent injunction and

damages for covenant and easement violations. Defendant counterclaimed for a

permanent injunction and damages on allegations that plaintiffs’ sewer pipes

passed under his property without his permission and without an easement

allowing the encroachment. Both properties are served by a centralized sanitary

sewer system, owned and maintained by the Wall Lake Sanitary District. Just

inside defendant’s lot line there is a sewer lift station dedicated to the Sanitary

District. When plaintiffs bought their property in 1998, plaintiffs’ sewer line was

connected to that lift station, as required by the Sanitary District. Defendant

acquired his property in 2004 from his father, who purchased it from Donald E.

Larson, the owner who executed the easement in question.




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[¶3.]         Plaintiffs responded to defendant’s counterclaim by bringing a third-

party complaint against Wall Lake. They asserted that Wall Lake was liable for

any damages plaintiffs suffered as a result of Wall Lake’s failure to obtain the

proper easement for the sewer lines. Wall Lake moved for summary judgment on

plaintiffs’ third-party complaint, contending that plaintiffs failed to provide notice

as required by SDCL 3-21-2, the statute of limitations had expired, and sovereign

immunity barred the suit. All parties moved for summary judgment.

[¶4.]         In its grant of summary judgment to defendant on his counterclaim,

the court ruled: “I find that the easement granted to Wall Lake is an easement in

gross. There is no language in the easement dedicating the easement to public use

and it can be inferred that [defendant] did not intend and would not want this

easement to Wall Lake to be extended to the public at large.” In so holding, the

court concluded that only a private easement existed. Plaintiffs were ordered to

immediately disconnect and remove all sewer piping on defendant’s property. As to

Wall Lake’s motion, the circuit court granted summary judgment against plaintiffs

for all the reasons asserted by Wall Lake. Plaintiffs appeal both grants of summary

judgment. 1 Because we conclude that the court erred in granting summary

judgment to defendant, the summary judgment for Wall Lake becomes moot.



1.      Under our familiar standard, “[w]hen reviewing a grant of summary
        judgment, we decide only whether there were genuine issues of material fact
        and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98,
        ¶19, 704 NW2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza
        Condominiums Ass’n v. Eastep, 2004 SD 28, ¶8, 676 NW2d 842, 846). “We
        view the evidence in a light most favorable to the nonmoving party.” Toben
        v. Jeske, 2006 SD 57, ¶9, 718 NW2d 32, 35 (citing Wilson v. Great Northern
        R.R. Co., 83 SD 207, 212, 157 NW2d 19, 21 (1968)). The moving party has
                                                                  (continued . . .)
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                                Analysis and Decision

[¶5.]         Plaintiffs assert error in the circuit court’s decision to grant summary

judgment on defendant’s sewer line counterclaim. According to plaintiffs, the Wall

Lake easement unambiguously dedicates defendant’s property to the public. They

point out that Larson, the previous owner of defendant’s property, “knew that two

other property owners would connect” to the sewer line on his property. Plaintiffs

also argue that because the easement’s purpose is for Wall Lake to construct and

maintain sewer facilities for the benefit of multiple users, “the nature of the

enjoyment by which [the easement] was acquired” gives them the right to cross

defendant’s property to connect to those facilities. 2 See SDCL 43-13-5. Wall Lake

Sanitary District joins in plaintiffs’ position, noting that “the trial court’s order

essentially prevents Wall Lake from providing access to a necessary sewer system.”

[¶6.]         An easement’s extent must be ascertained from the document itself: if

its words are plain and unambiguous, “the matter is concluded.’” Salmon v.

Bradshaw, 84 SD 500, 505-06, 173 NW2d 281, 284 (1969) (citation omitted). “The

__________________
(. . . continued)
         the burden of showing “the absence of any genuine issue of material fact and
         entitlement to judgment as a matter of law.” Yarcheski v. Reiner, 2003 SD
         108, ¶15, 669 NW2d 487, 493 (citing S.D. Dept. of Rev. v. Thiewes, 448 NW2d
         1, 2 (SD 1989)).

2.      As further proof for the existence of a public dedication, plaintiffs point to the
        plat filed by defendant with the Minnehaha Register of Deeds office. This
        plat was only submitted by plaintiffs after the court granted summary
        judgment against them, when they moved for reconsideration. The court
        denied the motion. Defendant objects to our consideration of this plat
        because it was not considered by the circuit court. In keeping with our long-
        standing policy, we will not accept evidence not considered by the circuit
        court.

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#24602

terms of the grant, as they can be learned either by words clearly expressed, or by

just and sound construction, will regulate and measure the rights of the grantee.”

Id. (citation omitted). When the terms are “clear, definite and unambiguous” it is

“unnecessary to resort to extrinsic facts or circumstances to determine its meaning

or extent.” Id.

[¶7.]         In support of his motion for summary judgment, defendant submitted

an affidavit stating, “At no time have I granted an easement for the public use of

the sewer facilities located on my property, and have no knowledge that any prior

owner of my property has granted an easement dedicated to the public use for such

purposes.” In 1991, however, the prior owner of defendant’s property, Donald E.

Larson, executed a “Sewer System Easement,” which states in part:

             GRANTOR, hereby grant [sic] to the Wall Lake Sanitary
             District, . . . a permanent easement for the purpose of surveying,
             locating, staking, constructing, installing, maintaining and
             inspecting sewer lines, manholes, cleanouts, pump vaults, valves
             and other facilities related thereto over, under, across and
             through the following described real property in Minnehaha
             County, South Dakota . . . together with the right of ingress and
             egress over such lands and any adjacent lands owned by
             GRANTOR, his successors and assigns for the purposes of this
             easement.
             ...
             The rights, conditions and provisions of this easement shall
             inure to the benefit of, and is binding upon, the heirs, successors
             and assigns of the parties hereto and shall constitute a covenant
             running with the land for the perpetual benefit of the
             GRANTEE, its successors and assigns.3




3.      This document was prepared by the engineering firm of DeWild Grant
        Reckert and Associates Company of Rock Rapids, Iowa, presumably on behalf
        of the Sanitary District.


                                         -4-
#24602

From reading this document, our question is whether a plain reading or a “just and

sound” construction will render this easement a public dedication.

[¶8.]         Wall Lake Sanitary District is a political subdivision incorporated

expressly to provide a sewage system for the residents of its district. See SDCL

34A-5-1; SDCL 34A-5-14; SDCL 34A-5-26(4). Although the word “public” cannot be

found in the easement, the language of this document clearly grants a “perpetual”

easement to a public entity. Binding on the grantor’s “heirs, successors and

assigns,” the easement is specifically for “constructing, installing, maintaining and

inspecting sewer lines, manholes, clean outs, pump vaults, valves and other

facilities thereto over, under, across and through” defendant’s property.

[¶9.]         An easement may be dedicated to public use if the owner clearly acts to

so dedicate it and the public entity accepts the dedication. Tinaglia v. Ittzes, 257

NW2d 724, 728-29 (SD 1977) (citations omitted); see also Bergin v. Bistodeau, 2002

SD 53, ¶¶15-17, 645 NW2d 252, 255-56. Defendant concedes that in certain

circumstances, when the grantee of an easement is a public entity, such easement

may grant rights to public use. 4 Nonetheless, defendant contends that a dedication

to public use was not plainly manifested in this easement. But this Court has long

recognized “the universal rule of law that no particular form of dedication is

necessary[;] if the same is in writing, no particular wording is necessary.” City of

Watertown v. Troeh, 25 SD 21, 125 NW 501, 503 (1910) (citation omitted).




4.      SDCL 34A-5-14 provides: “Such sanitary district, created and established
        under this chapter, shall be a governmental subdivision of this state and a
        public body, corporate and politic.”

                                          -5-
#24602

Moreover, as Justice Whiting wrote in Troeh, “the intent to dedicate may be shown

by the use of the land in question.” Id. (citing Mason v. City of Sioux Falls, 2 SD

640, 51 NW 770 (1892). While the grantor of the easement, Larson, still owned the

property defendant now occupies, plaintiffs hooked their sewer pipe to the lift

station on Larson’s land. 5

[¶10.]         Still, defendant persists that Wall Lake Sanitary District never

accepted the public dedication of the easement. Although a minority of courts have

required a formal acceptance, the “well-bedded” rule, acknowledged in South

Dakota for almost a century, is that “if the principals have, by their conduct,

accepted the dedication, it is of no great importance that the agents have taken no

action in the matter.” Id. No one questions that Wall Lake has continued to use

the sewer lines and facilities here since the easement was granted.

[¶11.]           To accept defendant’s claim that this “easement is for the benefit of

the Sanitary District only” is to forsake the very reason the sanitary district exists

— for the benefit of its residents. See SDCL 34A-5-1. The circuit court erred as a

matter of law in granting summary judgment to defendant on his sewer pipe

counterclaim. We remand for entry of an order of summary judgment for plaintiffs

on this issue.


5.       See also Wildwood Ass’n v. Harley F. Taylor, Inc., 2003 SD 98, ¶16, 668
         NW2d 296, 302:
               A dedication may occur by express grant or by legal implication.
               Brown v. Bd. of County Comm’rs for Pennington County, 422 NW2d
               440, 442 (SD 1988) (citation omitted). A dedication is implied where “it
               arises by operation of law from the owner’s conduct and the facts and
               circumstances of the case.” Tinaglia v. Ittzes, 257 NW2d 724, 729 (SD
                                                                    (continued . . .)

                                            -6-
#24602

[¶12.]       Reversed and remanded.

[¶13.]       GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.




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(. . . continued)
               1977) (quoting McQuillin, Municipal Corporations § 33.02 (3rd Rev
               Ed)).

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