#27692-a-DG
2016 S.D. 69

                              IN THE SUPREME COURT
                                      OF THE
                             STATE OF SOUTH DAKOTA


                                     ****

RON UNDERHILL,                                Plaintiff and Appellant,

v.

ROCKY MATTSON, BARBARA
MATTSON, CARMEN WALTON and
ALL OCCUPANTS WHO HAVE OR
CLAIM ANY INTEREST OR ESTATE
IN OR LIEN OR ENCUMBRANCE
UPON THE PREMISES DESCRIBED
IN THE COMPLAINT,                             Defendants and Appellees.


                                     ****

                   APPEAL FROM THE CIRCUIT COURT OF
                     THE FOURTH JUDICIAL CIRCUIT
                   LAWRENCE COUNTY, SOUTH DAKOTA
                                ****
                     THE HONORABLE RANDALL L. MACY
                                 Judge

                                     ****


DAVID L. CLAGGETT of
Claggett & Dill, Prof. LLC
Spearfish, South Dakota                       Attorneys for plaintiff and
                                              appellant.

TIMOTHY R. JOHNS of
Johns & Kosel, Prof. LLC
Lead, South Dakota                            Attorneys for defendants and
                                              appellees.

                                     ****
                                              CONSIDERED ON BRIEFS
                                              ON AUGUST 29, 2016
                                              OPINION FILED 09/28/16
#27692

GILBERTSON, Chief Justice

[¶1.]         Ron Underhill appeals the circuit court’s denial of his claims for quiet

title and conversion in relation to a garage located on his land. The circuit court

denied these claims after determining that Carmen Walton and Rocky and Barbara

Mattson (collectively, “Defendants”) acquired the garage and a small area of land

surrounding it (collectively, “the Property”) 1 through adverse possession. We

affirm.

                          Facts and Procedural History

[¶2.]         This suit involves several properties located along Taylor Avenue in

Deadwood, South Dakota: Lots 8A, 59, 60, and 61 of Block 35. Taylor Avenue is a

north–south street that terminates in a dead end on the north. Lot 59 is the

northernmost lot abutting Taylor Avenue on the west, with Lots 60 and 61

sequentially lying to the south of Lot 59. Lot 8A abuts Taylor Avenue on the east,

opposite Lot 61. Taylor Avenue’s northern terminus curves slightly to the

northwest and actually lies on Lots 59 and 60. The disputed property in this case

consists of a one-car garage and the land on which it sits, which also lies on Lots 59

1.      A survey conducted in 2003 describes the disputed area as follows:
              A parcel of ground beginning at a point where the SE Corner of
              Lot 60, Block 35 of the P.L. Rogers Map of the City of Deadwood
              intersects with Taylor Avenue and running N 54° 05′ 33″
              43.76 feet to the point of beginning of said parcel claimed by
              adverse possession; thence N 52° 31′ 01″ W 30.41 feet to point
              #2; thence N 52° 10′ 00″ W 38.69 feet to point #3; thence
              S 19° 52′ 43″ 11.72 feet to point #4; thence S 54° 27′ 37″ E
              76.85 feet to point #5; thence N 10° 58′ 54″ W 2.77 feet to point
              #6; thence along the curved line, the arc length of which is
              36.13 feet with a chord bearing N 57° 13′ 07″ E to the point of
              beginning. All which is located on a portion of Lots 59 and 60,
              Block 35, Original Townsite of the City of Deadwood, Lawrence
              County, South Dakota.
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and 60, abutting Taylor Avenue’s northern terminus. The property sits on a hillside

with an ascending slope to the north and steep drop-offs to the south and west.

[¶3.]         Carmen Walton is the current record owner of Lot 8A, where she

resides with her parents. 2 Walton purchased Lot 8A and the home located thereon

from the Mattsons on January 30, 2001. The Mattsons purchased the lot and home

from James and Doris Kennedy on February 10, 1976. The Kennedys purchased

the lot and home from Ole and Mary Peterson on April 23, 1952. The Petersons

acquired the property in 1914, and Ole constructed the garage in 1935. Each of the

foregoing owners used the garage during their ownership of Lot 8A.

[¶4.]         The various owners of Lot 8A have a history of using and maintaining

the garage. During the time Mattsons owned Lot 8A, their children used the area

around the garage as a playground, and Rocky Mattson installed fencing to prevent

their children from falling down the steep slopes. He also conducted repairs to the

property, including reroofing the garage and stabilizing the hillside adjoining one

wall of the garage. Walton and her father poured a concrete floor and driveway,

raised and straightened the building, adjusted the garage doors, inserted new

supports in the interior, painted the exterior, removed a tree behind the garage, and

replaced the roof. Mr. Walton landscaped the property by placing 10 tons of gravel

around the garage to improve water drainage. He also used a skid loader to level

areas of the property and built a retaining wall to help prevent the garage from

losing structural integrity.



2.      The lot on which the home sits was originally designated Lot 8. In 2001,
        following a survey of the area, lot lines were adjusted and the portion of the
        former Lot 8 on which the home sits was designated Lot 8A.
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[¶5.]         Underhill is the current record owner of Lots 59, 60, and 61. Underhill

resides in a home located on Lot 61, which he acquired sometime in the year 2000.

Underhill purchased Lots 59 and 60 from Martin C. Guth around September 26,

2012. Guth obtained a total of 19 lots, including Lots 59 and 60, from RTD

Development Co. on April 6, 1973.

[¶6.]         Ownership of the garage did not come into question until the 1990s. In

1995, Mattsons first learned that the garage was located on Lots 59 and 60 and that

those lots were owned by Guth. In 1997, the Deadwood City Attorney notified Guth

that the garage and Taylor Avenue’s northern terminus were located on Lots 59 and

60. Guth, who lived in Wisconsin at the time, was unaware that the garage existed

or that the various property owners of Lot 8A had been using it for decades. 3

Mattsons communicated with Guth several times about formally purchasing the

property, but apparently no agreement was reached.

[¶7.]         Subsequent to purchasing Lots 59 and 60, Underhill initiated this suit

to quiet title in the disputed property on July 8, 2013. He also sought damages and

punitive damages, alleging that Walton’s continued use of the garage amounted to

conversion. A trial before the circuit court was held on October 14, 2015. The court

concluded that Walton had acquired the disputed property by adverse possession

through her predecessors in interest. The court denied Underhill’s request to quiet

title and held that consequently, Underhill’s conversion claim was moot.

[¶8.]         Underhill appeals, raising two issues:



3.      Guth was living in New Mexico at the time he sold Lots 59 and 60 to
        Underhill in 2012. The circuit court noted: “None of the witnesses had ever
        met or seen Martin Guth.”
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             1.     Whether the circuit court erred by denying Underhill’s
                    claim for quiet title.

             2.     Whether the circuit court erred by denying Underhill’s
                    claim for conversion.

                                Standard of Review

[¶9.]        “Proof of the individual elements of adverse possession present

questions of fact for the [circuit] court, while the ultimate conclusion of whether

they are sufficient to constitute adverse possession is a question of law.” City of

Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 9, 607 N.W.2d 22, 25 (quoting Lewis v.

Moorhead, 522 N.W.2d 1, 3 (S.D. 1994)). Therefore, the circuit court’s factual

findings are reviewed for clear error, and its legal conclusions are reviewed de novo.

Id.

                               Analysis and Decision

[¶10.]       1.     Whether the circuit court erred by denying
                    Underhill’s claim for quiet title.

[¶11.]       The circuit court concluded that Defendants acquired the disputed

property by adverse possession. Adverse possession occurs when there is (1) an

occupation that is (2) open and notorious, (3) continuous for the statutory period,

and (4) under a claim of title exclusive of any other right. SDCL 15-3-12; Titus v.

Chapman, 2004 S.D. 106, ¶ 27, 687 N.W.2d 918, 925. As the parties asserting

adverse possession, Defendants have the burden of establishing these elements by

clear and convincing evidence. Summit, 2000 S.D. 29, ¶ 15, 607 N.W.2d at 26.

[¶12.]       The primary dispute in this case is whether Defendants actually

occupied the Property. Because Defendants’ claim is “not founded upon a written

instrument, or judgment, or decree,” the Property will only be deemed adversely

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possessed if it has been (1) “protected by a substantial [enclosure]” or (2) “usually

cultivated or improved.” SDCL 15-3-13. Although the circuit court concluded that

“the subject property has been continually occupied for a period of some 80 years by

Walton and her predecessors in title[,]” the court did not specify which of these

disjunctive conditions it relied on in reaching that conclusion. Defendants argue

that their occupation of the Property is established by either condition. Because we

conclude Defendants usually cultivated or improved the property, we do not address

whether the Property was substantially enclosed.

[¶13.]       The circuit court’s factual findings support the conclusion that

Defendants occupied the Property by virtue of cultivating and improving it. We

have explicitly held that “regular mowing of the property constitutes cultivation

under SDCL 15-3-13(2).” Lewis v. Aslesen, 2001 S.D. 131, ¶ 8, 635 N.W.2d 744, 747.

We have also explicitly held that “landscaping is an improvement to land under

SDCL 15-3-13(2).” Id.; see also Schultz v. Dew, 1997 S.D. 72, ¶ 15, 564 N.W.2d 320,

324 (recognizing the addition of gravel to a driveway as an improvement). On this

issue, the circuit court made a number of relevant factual findings:

             12. The garage sits on an excavated portion of Lots 59 and 60.
             Excavations have been made continuously at least since the
             time the garage was built.
             ....
             23. During the time the Mattsons owned [Lot 8A], Mr. Mattson
             did repairs to the garage including reroofing and stabilization of
             the hillside adjoining one wall of the garage.
             24. During the time the Mattsons and Ms. Walton have owned
             [Lot 8A], they have cut the grass on the subject property and
             continue to remove soil from the areas previously excavated by
             their predecessors in title, Ole Peterson and James Kennedy.
             25. The garage in question has been there for approximately
             80 years. The garage and the subject property on which it sits
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             has been continuously developed and maintained during that
             time.
             ....
             27. Defendant Walton and her father, Robert Walton, have done
             work to the garage (which is listed as a historical structure)
             including pouring a concrete floor in the garage and a concrete
             driveway; raising and straightening the building and adjusting
             the garage doors; inserting new supports in the interior;
             painting the exterior of the garage; removed a tree behind the
             garage which was impinging upon the structure; and tearing off
             the old roof covering and installing plywood on the roof and then
             putting new shingles on the roof. Mr. Walton has also
             landscaped the property to correct the drainage by means of
             tiling so that water will drain away from the garage and by
             placing 10 tons of gravel on the area around the garage. Mr.
             Walton used a [skid loader] to level out certain areas of the
             subject property and he built a retaining wall to keep the garage
             safe from sliding down the hill or otherwise losing its structural
             integrity.

These findings are sufficient to support the conclusion that Defendants and their

predecessors in title improved the Property within the meaning of SDCL 15-3-13(2).

[¶14.]       Even so, Plaintiff argues that a number of the circuit court’s factual

findings are erroneous. According to Plaintiff, “no evidence exists that anyone

actually ‘excavated’ the land[,]” “[n]o pictures or documentary proof of any . . . fence

were ever produced[,]” and “no retaining wall was constructed on the subject

property[.]” Yet, each of these assertions is contradicted by Defendants’ testimony,

which the court apparently found credible. The circuit court heard testimony that

Walton, the Mattsons, and the Kennedys excavated various areas of the Property.

Likewise, Rocky Mattson testified that he erected a fence and retaining wall behind

the garage. Defendants’ testimony is evidence even though disputed by Plaintiff,

see Magner v. Brinkman, 2016 S.D. 50, ¶ 16, 883 N.W.2d 74, 82, and Plaintiff’s

contrary view of the evidence is not sufficient to leave us with “a definite and firm

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conviction that a mistake has been made[,]” Summit, 2000 S.D. 29, ¶ 9, 607 N.W.2d

at 25. Therefore, the circuit court’s relevant factual findings are not clearly

erroneous, and we conclude Defendants established the first element of adverse

possession.

[¶15.]        The second element of adverse possession that Defendants must

establish is that their occupation of the Property was open and notorious. The

purpose of this element is to give the record owner notice of the occupation. “[T]he

adverse use must be made in such a way that a reasonably diligent owner would

learn of its existence, nature, and extent.” Hamad Assam Corp. v. Novotny,

2007 S.D. 84, ¶ 11, 737 N.W.2d 922, 926 (quoting Restatement (Third) of Property:

Servitudes § 2.17 (Am. Law Inst. 2000)). Notably, this standard is an objective one.

Although Guth was apparently unaware of the presence of the garage or its use by

the owners of Lot 8A, his lack of awareness is attributable solely to his absence from

the Property and not to any concealment of the occupation by Defendants and their

predecessors. Therefore, Defendants’ occupation of the Property was open and

notorious.

[¶16.]        Next, Defendants must prove that their occupation was continuous for

the statutory period. In South Dakota, the statutory period for adverse possession

is 20 years. SDCL 15-3-1; Estate of Billings v. Deadwood Congregation of Jehovah

Witnesses, 506 N.W.2d 138, 141 (S.D. 1993). Although Walton has not claimed

ownership of the Property for such a length of time, “the principle of ‘tacking’ allows

[her] to add [her] own claim[] to that of previous adverse possessors under whom

[she] claims a right of possession.” Estate of Billings, 506 N.W.2d at 141. Thus,


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Walton’s 12-year occupation of the Property is added to the Mattsons’ 25-year

occupation, the Kennedys’ 24-year occupation, and the Petersons’ 17-year

occupation. Moreover, “adverse possession occurs by operation of law and does not

require an action to commence it, nor to continue it.” Rotenberger v. Burghduff,

2007 S.D. 19, ¶ 16, 729 N.W.2d 175, 180 (quoting Johnson v. Biegelmeier,

409 N.W.2d 379, 382 (S.D. 1987)). In other words, the owners of Lot 8A may have

acquired ownership of the Property as early as 1955, and the duration of the

Mattsons’ occupation of the Property was alone sufficient to meet the statutory

period.

[¶17.]        Finally, Defendants’ occupation of the Property must have been under

a claim of title exclusive of any other right. This element does not require wrongful

intent on the part of the adverse possessor. “Possession of property is adverse to the

true owner . . . even though such occupancy . . . was due to mistake and without an

intention to claim the land of another.” Estate of Billings, 506 N.W.2d at 141. The

owners of Lot 8A have each used and treated the Property as their own since the

garage was first constructed. Additionally, the exclusivity of the title they claim is

demonstrated by Walton’s response to Plaintiff’s entry into and use of the garage in

December 2000 and January 2001. Just prior to Walton moving into Lot 8A,

Plaintiff moved personal property into the garage. Walton’s father advised Plaintiff

that he was trespassing on Walton’s property. Plaintiff capitulated and removed

his property from the garage. Thus, we also conclude that Defendants have

established the fourth element of an adverse-possession claim and that the circuit

court did not err in denying Plaintiff’s claim for quiet title.


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[¶18.]       2.     Whether the circuit court erred by denying
                    Underhill’s claim for conversion.

[¶19.]       Plaintiff argues that “Mattsons’ and Walton’s use of the property since

September of 2012, after Underhill purchased the property, clearly constitutes

conversion.” This argument is meritless. As Plaintiff acknowledges in his own

brief, “[c]onversion is the unauthorized exercise of control or dominion over personal

property in a way that repudiates an owner’s right in the property or in a manner

inconsistent with such right.” First Am. Bank & Tr., N.A. v. Farmers State Bank of

Canton, 2008 S.D. 83, ¶ 38, 756 N.W.2d 19, 31 (emphasis added) (quoting Chem-Age

Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 20, 652 N.W.2d 756, 766). Plaintiff has

failed to identify any property apart from the real property at issue in his quiet-title

claim. Even if Plaintiff’s view of the law was correct, he did not acquire Lots 59 and

60 until 2012—long after the 20-year statute of limitations had expired on

Defendants’ adverse possession of the Property. See supra ¶ 16. Thus, the circuit

court did not err in denying Plaintiff’s claim for conversion.

                                      Conclusion

[¶20.]       Defendants established by clear and convincing evidence that they and

their predecessors in interest have continually occupied the Property for at least 20

years and that such occupation has been open and notorious and under a claim of

title exclusive of any other right. Therefore, Defendants have met their burden of

proving the elements of adverse possession, and the circuit court did not err in

denying Plaintiff’s claim to quiet title. Plaintiff has failed to identify any personal

property taken by Defendants; therefore, the circuit court did not err in denying

Plaintiff’s claim for conversion.

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[¶21.]   We affirm.

[¶22.]   ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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