#25595-a-SLZ

2010 S.D. 88

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                 * * * *

DRD ENTERPRISES, LLC,                      Plaintiff and Appellant,

v.

TODD THOMAS FLICKEMA, DAWN AMY
FLICKEMA, and PSC PROPERTIES, LLC,         Defendants and Appellees,

AVENTURE ESTATES, LLC, FIVE
J INVESTMENT CO., LLC, and
PINNACLE HOLDINGS, LLC,                    Defendants.

                                 * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                  LAWRENCE COUNTY, SOUTH DAKOTA

                                 * * * *

                    HONORABLE WARREN G. JOHNSON
                               Judge

                                 * * * *
DYLAN A. WILDE of
Brady & Pluimer, PC
Spearfish, South Dakota                    Attorneys for plaintiff
                                           and appellant.

DWIGHT A. GUBBRUD of
Bennett, Main & Gubbrud, PC
Belle Fourche, South Dakota                Attorneys for defendants
                                           and appellees.

                                 * * * *
                                           CONSIDERED ON BRIEFS
                                           ON OCTOBER 4, 2010

                                           OPINION FILED 11/17/10
#25595

ZINTER, Justice

[¶1.]        Appellant DRD Enterprises, LLC commenced a declaratory action

against Todd and Dawn Flickema (Flickemas) and PSC Properties, LLC to obtain

an access easement across their properties. DRD based its claim upon a “Blanket

Easement” granted by Dakota Resorts Management Group (Dakota Resorts), a prior

owner of Flickemas’ and PSC’s properties. The circuit court concluded that the

Blanket Easement sufficiently described the servient tenement. Nevertheless, the

court entered judgment for Flickemas and PSC because the court concluded that

they were good faith purchasers without notice of the easement. We only address

the predicate question regarding the sufficiency of the easement description.

Because we conclude that the Blanket Easement failed to sufficiently describe the

servient tenement, we affirm the judgment.

                            Facts and Procedural History

[¶2.]        In 1999, the Gali Family Trust sold legally described real property to

Dakota Resorts on a contract for deed. For ease of reference we refer to the

property as the “Non-Emery Properties.” On February 16, 2000, while in possession

of the Non-Emery Properties, Dakota Resorts executed a document referred to as

the Blanket Easement. By the terms of the document, Dakota Resorts granted “the

rights of a to be determined, as requested, legal right of ingress and egress” for the

benefit of legally described properties. For ease of reference we refer to the

dominant tenement as “Emery No. 4” and “Emery No. 5.” The Blanket Easement

did not, however, provide a legal description of the servient tenement. It only

indicated that the easement “shall provide a reasonable route through the grantor’s


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land that will not cause undo [sic] and unreasonable work and engineering.”

(Emphasis added.) 1 The Blanket Easement was filed with the Lawrence County

Register of Deeds on February 22, 2000, and was recorded as Doc. No. 2000-704.

The Lawrence County Register of Deeds indexed the Blanket Easement against

Emery Nos. 4 and 5. But without a legal description, the Blanket Easement was

not indexed against any servient tenement. 2

[¶3.]         On March 30, 2000, a Gali-Dakota Resorts Short Form Contract for

Deed was recorded as Doc. No. 2000-1202. The short form evidenced the 1999 sale

of Non-Emery Properties to Dakota Resorts. It indicated that 378.3 acres, legally

described as “Mineral Survey 1356 . . . of Sections 11, 12, 13, and 14 . . . ,” had been

conveyed. Thus, the Lawrence County Register of Deeds’ records indicated that

Dakota Resorts had been the equitable owner of Non-Emery Properties at the time

it granted the Blanket Easement.

[¶4.]         Dakota Resorts sold the dominant tenement (Emery Nos. 4 and 5) to

Kenneth and Amy O’Neill around the time it executed the Blanket Easement. The

O’Neills sold Emery No. 5 to Aventure Estates, LLC in October 2004, and they sold

Emery No. 4 to DRD in November 2005. The warranty deeds given to Aventure and

DRD referenced the Blanket Easement recorded in Document No. 2000-704.




1.      The Blanket Easement indicates that it was not prepared by counsel in this
        case. It was prepared by Kenneth O’Neill, the purchaser of the dominant
        tenement.

2.      Instruments are indexed in numerical and grantor-grantee indexes. See
        SDCL §§ 7-9-8, 7-9-9.

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[¶5.]        Dakota Resorts also sold a portion of the Non-Emery Properties, the

purported servient tenement, to Aventure in October 2004. The warranty deed

conveying title to Aventure made no reference to the Blanket Easement. Aventure

subsequently subdivided and replatted its portion of the Non-Emery Properties into

lots. Aventure then sold Lot 5 to Flickemas on September 30, 2006. Aventure sold

Lot 6 to PSC Properties on October 17, 2006.

[¶6.]        Before closing on Lot 5, Lawrence Title Company issued Flickemas an

initial commitment for title insurance. The Blanket Easement was attached to the

commitment and was noted as a special exception. After reviewing the title

commitment, Flickemas asked their real estate agent, Kathy Whitelock, about the

Blanket Easement. Whitelock made an inquiry of the seller’s real estate agent, who

contacted the title company. Lawrence Title Company subsequently amended the

commitment for title insurance, removing the Blanket Easement as a special

exception. Neither Flickemas’ final title insurance policy nor their warranty deed

contained any reference to the Blanket Easement. Additionally, Todd Flickema

personally inspected Lot 5. He observed no access road, trail or path across Lot 5

suggesting the existence of an ingress/egress easement.

[¶7.]        Prior to closing on Lot 6, PSC obtained a title insurance commitment.

PSC’s commitment made no reference to the Blanket Easement. PSC’s principal

member, Dr. Paul Cink, inspected the land and did not observe any evidence

suggesting the presence of an ingress/egress easement on Lot 6. Neither PSC’s final

title insurance policy nor its warranty deed mentioned the Blanket Easement.




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[¶8.]         In 2006, DRD brought this declaratory action against several

landowners, including Flickemas and PSC, to utilize the Blanket Easement to

obtain an access easement from Terry Peak Summit Road to DRD’s nearby land

(Emery No. 4). Flickemas and PSC claimed the Blanket Easement was of “no

effect” because the easement’s mere reference to “grantor’s land” did not sufficiently

describe the servient tenement. The circuit court granted DRD summary judgment

on this issue. The court ruled that the servient tenement, described only as

“grantor’s land,” could be determined by resort to public records. According to the

court, “grantor’s land” included those Non-Emery properties Dakota Resorts had

owned lying between Emery Nos. 4 and 5 and the Terry Peak Summit Road (which

included Flickemas’ Lot 5 and PSC’s Lot 6). Therefore, the court held that the

Blanket Easement sufficiently described the servient tenement to be effective. The

court ruled, however, that there were factual issues precluding summary judgment

on whether the Blanket Easement burdened Flickemas’ and PSC’s properties

because they may have been good faith purchasers without notice of the Blanket

Easement. 3

[¶9.]         Following further discovery, the parties filed additional motions for

summary judgment. The circuit court then concluded that the easement was not in

Flickemas’ or PSC’s chain of title and that Flickemas and PSC were not burdened

by the Blanket Easement because they were good faith purchasers without notice of


3.      The circuit court reasoned: “The location of the servient tenement on
        ‘grantor’s lands’ [sic] obviously cannot be determined by a physical inspection
        of the property. Nor does the Blanket Easement appear in the chain of title
        to Defendants’ property.”


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#25595

the easement. 4 DRD appeals claiming that it was entitled to summary judgment

declaring that the Blanket Easement burdened Flickemas’ and PSC’s properties.

                                        Decision

[¶10.]         This Court’s standard of review on summary judgment is well-settled:

               Our standard of review on summary judgment requires this
               Court to determine whether the moving party has
               demonstrated the absence of any genuine issue of material fact
               and entitlement to judgment on the merits as a matter of law.
               The circuit court’s conclusions of law are reviewed de novo.
               However, all facts and favorable inferences from those facts
               must be viewed in a light most favorable to the nonmoving
               party. We will affirm the circuit court’s ruling on a motion for
               summary judgment when any basis exists to support its ruling.

United Bldg. Centers v. Ochs, 2010 S.D. 30, ¶ 10, 781 N.W.2d 79, 82.



4.       Bernardy v. Colonial & U. S. Mortgage Co., 17 S.D. 637, 648-49, 98 N.W. 166,
         169 (1904), and Fullerton Lumber Co. v. Tinker, 22 S.D. 427, 430-32, 118
         N.W. 700, 702-03 (1908), suggest that the Blanket Easement was within
         Flickemas’ and PSC’s chain of title and they were on notice of the existence of
         the Blanket Easement. In Bernardy, this Court stated that conveyances in a
         person’s chain of title are conveyances made by parties under whom the
         person claims title. 17 S.D. at 649, 98 N.W. at 169. “[A] purchaser of
         property is necessarily charged with notice of all [recorded] conveyances or
         mortgages made by the party under whom he claims.” Id. at 648, 98 N.W. at
         169. The recorded Blanket Easement was conveyed by Dakota Resorts, a
         party under whom Flickemas and PSC claimed title.
               In Fullerton Lumber, this Court held that a purchaser has constructive
         notice of all instruments recorded in either the “indexes of grantors and
         grantees, mortgagors and mortgagees, in [the purchaser’s] chain of title” or
         the numerical index describing the purchaser’s property. 22 S.D. at 430-32,
         118 N.W. at 702-03. See also Lunstra v. Century 21 GKR-Lammers Realtors,
         442 N.W.2d 448, 450 (S.D. 1989). The record indicates that the Blanket
         Easement was recorded in the Lawrence County Register of Deed’s grantor-
         grantee index. Therefore, Fullerton Lumber and Bernardy suggest that the
         Blanket Easement was in Flickemas’ and PSC’s chain of title, and they were
         charged with notice of its existence. See SDCL §§ 43-25-3, 43-25-12, 43-28-
         15, 43-28-17 (statutes on recording, good faith purchasers, and constructive
         notice).


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[¶11.]          DRD argues that Flickemas had “express information of the Blanket

Easement” through the title insurance commitment, which included a copy of the

easement and listed it as a special exception. DRD argues that PSC had actual

knowledge because Dr. Cink received a copy of the Blanket Easement in connection

with the purchase of Lot 9 (another Non-Emery property in the Aventure

subdivision). Alternatively, DRD contends that Flickemas and PSC had

constructive knowledge through the easement itself (Flickemas’ title commitment)

and through PSC’s agency relationship with its realtor who knew of the easement.

DRD claims that with constructive knowledge, Flickemas and PSC were burdened

with a duty of inquiry, and a diligent inquiry would have disclosed “the existence” of

the easement.

[¶12.]          Flickemas and PSC argue that they were good faith purchasers of Lots

5 and 6 without notice of the Blanket Easement. They contend that because the

Blanket Easement did not appear on their final title insurance commitments or on

any deeds within their chain of title, they did not have notice that the Blanket

Easement burdened their properties. They also argue that any constructive

knowledge they had of the existence of the Blanket Easement was irrelevant

because they made a reasonable inquiry and were presented with information from

the title company leading them to believe the easement did not burden their

properties. 5



5.       Flickemas and PSC rely on the rule stated in Betts v. Letcher, 1 S.D. 182,
         193-94, 46 N.W. 193, 196-97 (1890) (indicating that “[n]otice of a prior
         unrecorded conveyance, or of any title, legal or equitable, to the premises, or
         knowledge and notice of any facts which would put a prudent person upon
                                                               (continued . . .)
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#25595

[¶13.]       To resolve this appeal, it is necessary to highlight DRD’s specific

argument. DRD contends Flickemas and PSC knew the Blanket Easement

expressly provided “that there was an easement for the benefit of Emery number 4

and Emery number 5.” But it may be assumed without deciding that Flickemas and

PSC had knowledge of the existence of the Blanket Easement benefiting Emery

Nos. 4 and 5. The pertinent question is: What knowledge did that easement convey

regarding the purported servient tenement, Lots 5 and 6? Because the Blanket

Easement legally described Emery Nos. 4 and 5 as the dominant tenement while

only describing the servient tenement as “grantor’s land,” the public record only

disclosed that an easement on some undisclosed land, which Dakota Resorts once

owned, benefited Emery Nos. 4 and 5. Obviously, knowing that some undescribed

Blanket Easement benefited Emery Nos. 4 and 5 does not support DRD’s contention

that Flickemas and PSC had knowledge that the easement burdened Lots 5 and 6.

To impute such knowledge, the Blanket Easement must have contained some

property description or reference suggesting Flickemas’ and PSC’s properties were

burdened by the easement.

[¶14.]       With respect to what knowledge the Blanket Easement conveyed, DRD

argues that the Blanket Easement’s reference to the servient tenement as “grantor’s

________________________
(. . . continued)
         inquiry, impeaches the good faith of the subsequent purchaser”; however,
         “presumptive notice from possession, like that arising from any other fact
         putting one upon inquiry, is subject to rebuttal by proof showing that an
         inquiry, duly and reasonably made, failed to disclose any legal or equitable
         title in the occupant”). See also Williamson v. Brown, 15 N.Y. 354 (1857)
         (stating that party who makes a reasonable inquiry but fails to discover an
         unrecorded conveyance will be protected). This rule, however, only applies to
         unrecorded instruments.

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#25595

land” put Flickemas and PSC on constructive notice demanding “a prudent

investigation into the extent of grantor’s land such that they could provide an

easement for ingress and egress to Emery number 4 and Emery number 5.” DRD

contends that an investigation of the public records would have disclosed that the

Blanket Easement burdened Lots 5 and 6 because Dakota Resorts, the easement’s

grantor, at one time owned the Non-Emery Properties, and before the Aventure

subdevelopment, Lots 5 and 6 were a part of the Non-Emery Properties. DRD also

relies on the circuit court’s initial ruling that the Blanket Easement sufficiently

described the servient tenement.

[¶15.]       DRD points out that the circuit court’s initial order regarding the

sufficiency of the servient tenement’s description has not been appealed by notice of

review and is therefore not subject to challenge by Flickemas or PSC. Although an

appellee may not generally raise issues on which it filed no notice of review,

Appellant DRD’s argument in this appeal incorporates the reasoning of that earlier

order. And, “[o]n appeal from a judgment the Supreme Court may review any order,

ruling, or determination of the trial court . . . involving the merits and necessarily

affecting the judgment and appearing upon the record.” SDCL 15-26A-7. See also

Lang v. Burns, 77 S.D. 626, 631, 97 N.W.2d 863, 866 (1959) (“On an appeal from a

judgment this [C]ourt may review intermediate orders [that] involve the merits and

necessarily affect the judgment appealed from.”)




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[¶16.]         Additionally, under Federal Rule of Appellate Procedure 3(c)(1)(B), the

counterpart of SDCL 15-26A-4(1), 6 “an appeal from a final judgment preserves all

prior orders intertwined with the final judgment.” New York Life Ins. Co. v.

Deshotel, 142 F.3d 873, 884 (5th Cir. 1998) (quoting Trust Co. v. N.N.P. Inc., 104

F.3d 1478, 1485 (5th Cir. 1997)). “Ordinarily, a notice of appeal that specifies the

final judgment in a case should be understood to bring up for review all of the

previous rulings and orders that led up to and served as a predicate for that final

judgment.” Greer v. St. Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001)

(allowing appeal of final summary judgment order to include appeal of earlier

summary judgment order). See also Badger Pharmacal, Inc. v. Colgate-Palmolive

Co., 1 F.3d 621, 626 (7th Cir. 1993) (“Ordinarily, an appeal from a final judgment

brings up for review all previous orders entered in the case.”); United States v. One

1977 Mercedes-Benz, 708 F.2d 444, 451 (9th Cir. 1983) (stating appeal from final

judgment puts at issue all prior nonfinal orders and all rulings which produced the

final judgment). See generally 20 James Wm. Moore et al., Moore’s Federal Practice

§ 303.21[3][c][iii] (3d ed. 2010) (“An appeal from the final judgment usually draws

into question all prior nonfinal orders and all rulings which produced the

judgment.”).

[¶17.]         In this case, the circuit court’s initial ruling and order led to and was

the predicate for the summary judgment now challenged by DRD. Without the

circuit court’s initial order ruling the description of the servient tenement sufficient,


6.       Both rules require that a notice of appeal shall “designate the judgment,
         order, or part thereof” being appealed. SDCL 15-26A-4(1); Fed. R. App. P.
         3(c)(1)(B).

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the court would not have rendered the summary judgment DRD now appeals.

Moreover, DRD’s current arguments regarding actual and constructive notice

incorporate the reasoning of the circuit court’s initial order; i.e., that the legal

description in the Blanket Easement was sufficient to be effective against

subsequent purchasers. Indeed, DRD expressly relies on the circuit court’s initial

order. Because the initial order affects and involves the merits of the summary

judgment challenged by DRD, we review that initial order to determine whether the

Blanket Easement sufficiently described the servient tenement.

[¶18.]         Many jurisdictions have considered the sufficiency of an easement

description necessary to burden a subsequent purchaser of property. Like South

Dakota, the Supreme Court of Washington requires a conveyance creating an

easement to comply with the statute of frauds. Berg v. Ting, 125 Wash.2d 544, 551,

886 P.2d 564, 568-69 (1995). 7 To comply with the statute of frauds, a conveyance

creating an easement must contain either 1) a description of the land sufficient to

locate the servient tenement or 2) a reference to another document which contains a

description sufficient to locate the servient tenement. Id. Although “‘a deed [of

easement] is not required to establish the actual location of an easement, [it] is

required to convey an easement’ which encumbrances a specific servient estate.

The servient estate must be sufficiently described.” Id. (emphasis added) (internal

citation omitted) (quoting Smith v. King, 620 P.2d 542, 543 (Wash. App. 1980)).




7.       “An easement is an interest in land subject to the statute of frauds.” Vander
         Heide v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 25, 736 N.W.2d 824, 833.

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[¶19.]       The Supreme Court of New Mexico stated that “the description of real

estate in a deed inter partes is sufficient if it identifies the property intended to be

conveyed by it, or furnishes means or data which point to evidence that will identify

it.” Heron v. Ramsey, 45 N.M. 483, 117 P.2d 242, 246 (1941). The court

summarized the rules in various decisions, which included a decision by this Court,

concerning the sufficiency of real estate descriptions. A description is sufficient only

if:

              “[T]he description furnish[es] the key to the identification of the
              land intended to be conveyed,” Smith v. Fed[.] Land Bank, 181
              Ga. 1, 181 S.E. 149, 150 [(1935)]; or if the description is “either
              certain in itself, or capable of being reduced to certainty by a
              reference to something extrinsic to which the deed refers,”
              Buckhorn Land & T. Co. v. Yarbrough, 179 N.C. 335, 102 S.E.
              630, 631 [(1920)]; or “if there appears therein enough [in the
              description] to enable one, by pursuing an inquiry based upon
              the information contained in the deed, to identify the particular
              property to the exclusion of [all] others,” Coppard v. Glasscock,
              [ ] 46 S.W.2d 298, 300 [(Tex. Com. App. 1932)]; or if the deed
              itself furnishes “the means of identification,” Ault v. Clark, 62
              Ind. App. 55, 112 N.E. 843, 845 [(1916)]; or if the description
              “can be made certain [by] inquiries suggested by the description
              given in such deed,” Ford v. Ford, 24 S.D. 644, 124 N.W. 1108
              [(1910)]; or the description in a deed must be sufficiently
              certain to identify the land therefrom or furnish the means
              with which to identify it, Hamilton v. Rudeen, 112 Or. 268, 224
              P. 92 [(1924)].

Id. The same sufficiency-of-description rules that apply to descriptions in deeds,

apply to descriptions of easements. See Cummings v. Dosam, Inc., 273 N.C. 28, 33,

159 S.E.2d 513, 518 (1968).

[¶20.]       The Massachusetts Supreme Court acknowledged the sufficiency-of-

description requirement when it struck down a conservation easement on grounds

of an insufficiently described servient tenement. Parkinson v. Bd. of Assessors of

Medfield, 395 Mass. 643, 645, 481 N.E.2d 491, 493 (1985). That easement
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prohibited construction on eighty-two acres of land yet allowed the use of “[o]ne

single-family residence with usual appurtenant outbuildings and structures.” Id. at

643-44, 481 N.E.2d at 492. The court found that the servient tenement was the

eighty-two acres minus an ambiguous amount of property required for the use of

the residence. Id. at 646, 481 N.E.2d at 493. Because nothing in the instrument

creating the easement identified the amount of property required for the residence,

the servient tenement was insufficiently described and invalid. Id. The

Massachusetts Supreme Court explained:

             “While no particular words are necessary for the grant of an
             easement, the instrument must identify with reasonable
             certainty the easement created and the dominant and servient
             tenements.” Dunlap Investors, Ltd. v. Hogan, 133 Ariz. 130,
             132, 650 P.2d 432 (1982) [(]quoting Oliver v. Ernul, 277 N.C.
             591, 597, 178 S.E.2d 393 (1971)[)]. Hynes v. Lakeland, 451
             So.2d 505, 511 ([Fla. Dist. Ct. App.] 1984). Germany v.
             Murdock, 99 N.M. 679, 681, 662 P.2d 1346 (1983). Vrabel v.
             Donahoe Creek Watershed Auth., 545 S.W.2d 53, 54 ([Tex. Civ.
             App.] 1976). See McHale v. Treworgy, 325 Mass. 381, 385, 90
             N.E.2d 908 (1950). The instrument must be sufficiently precise
             that “a surveyor can go upon the land and locate the easement.”
             Vrabel[, 545 S.W.2d at 54]. If the instrument does not describe
             the servient land with the precision required to render it
             “capable of identification . . . the conveyance is absolute[ly]
             nugatory.” McHale[, 325 Mass. at 385, 90 N.E.2d 908 at 911].
             Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267 (1984).

Id. at 645-46, 481 N.E.2d at 493.

[¶21.]       The North Carolina Supreme Court has discussed the sufficiency of an

easement’s description in many cases. In Allen v. Duvall it explained:

             When an easement is created by deed, either by express grant
             or by reservation, the description thereof “must either be
             certain in itself or capable of being reduced to a certainty by a
             recurrence to something extrinsic to which it refers. . . . There
             must be language in the deed sufficient to serve as a pointer or a
             guide to the ascertainment of the location of the land.”

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311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984) (quoting Thompson v. Umberger, 221

N.C. 178, 180, 19 S.E.2d 484, 485 (1942)). When an easement’s description is

patently ambiguous, the language is insufficient to identify the land with certainty,

and so the purported easement will be void. Id. “When . . . the ambiguity in the

description is not patent but latent—referring to something extrinsic by which

identification might be made—the reservation will not be held void for uncertainty.”

Id. at 251, 316 S.E.2d at 271.

[¶22.]       The North Carolina Supreme Court later struck down a portion of an

easement remarkably analogous to the one we consider today. Cummings, 273 N.C.

at 34, 159 S.E.2d at 518. The North Carolina easement purported to burden land

identified as “this tract and adjoining tracts being acquired by Grantee.” Id. The

court upheld the validity of the easement on “this tract” because it was legally

described in the deed. Id. But the court invalidated the purported easement on

“adjoining tracts being acquired by Grantee” because the adjoining tracts were not

otherwise described. Id. The court pointed out that the language “adjoining tracts

being acquired by Grantee,” was patently ambiguous. Id. “‘The description must

identify the land, or it must refer to something that will identify it with certainty.’

The same principle applies to the description of the servient estate in a deed

granting an easement.” Id. at 33, 159 S.E.2d at 518 (quoting Deans v. Deans, 241

N.C. 1, 7, 84 S.E.2d 321, 325 (1954)).

[¶23.]       Also like the case at bar, a Texas appellate court considered an

easement described as “111.0 acres, more or less, out of a 250.5 acre tract of land in

the Basil Durbin Survey.” Vrabel v. Donahoe Creek Watershed Auth., 545 S.W.2d


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53, 54 (Tex. Civ. App. 1977). The instrument did not describe the location of the 111

acre servient tenement, nor did the instrument reference another writing describing

the location of the 111 acre servient tenement. Id. The court concluded that the

description rendered the easement void as to third parties. Id. The court explained

that for an easement to be sufficiently described, “the description must be so

definite and certain upon the face of the instrument itself, or, in some writing

referred to, that the land can be identified with reasonable certainty.” Id. (citing

Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948)). In Matney, the court stated:

“Since the description, or the key thereto, must be found in the language of the

contract, the whole purpose of the statute of frauds would be frustrated if parol

proof were admissible to supply a description of land which the parties have omitted

from their writing. So, while a defect in description may be aided by the description

shown on a map, in such case the map must be referred to in the contract[.]” 147

Tex. at 31-32, 210 S.W.2d at 984 (quoting 1 Jones, Cyclopedia of Real Property Law

329).

[¶24.]       The common denominator in these cases is that the conveying

instrument must either describe the servient tenement with certainty or make

reference to something else that makes the servient tenement identifiable with

certainty. South Dakota follows this view. In Ford v. Ford, this Court stated:

              The office of a description in a deed is not to identify the lands,
              but to furnish the means of identification, and that a
              description is considered sufficiently certain which can be made
              certain, and that a description in a deed would be deemed
              sufficient if a person of ordinary prudence, acting in good faith
              and making inquiries suggested by the description given in
              such deed, would be enabled to identify the property.


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24 S.D. 644, 648, 124 N.W. 1108, 1110 (1910) (holding description of property in a

homestead conveyance sufficient to convey the property). 8

[¶25.]         In Schlecht v. Hinrich, this Court again required a real estate

description to furnish means to identify the property. 50 S.D. 360, 363, 210 N.W.

192, 193 (1926). This Court stated, “A description of property in a chattel mortgage

is sufficient where it will enable a third person, aided by inquiries which the

instrument itself suggests, to identify the property.” Id. (emphasis added) (holding

that a misleading property description was sufficient to put third parties on notice

of a mortgage).

[¶26.]         In DRD’s Blanket Easement, the only identifying words in the

description are “grantor’s land.” These two words do not suggest any point of

reference by which one could identify the specific property burdened. See Ford, 24

S.D. at 648, 124 N.W. at 1110; Schlecht, 50 S.D. at 363, 210 N.W. at 193. “Grantor’s

land” certainly does not itself, or by reference to an outside aid, identify the

burdened land with certainty. See Cummings, 273 N.C. at 33, 159 S.E.2d at 518;

Vrabel, 545 S.W.2d at 54. The broad description “grantor’s land” is insufficient to

create an easement under the analogous descriptions considered in Cummings, 273

N.C. 28, 159 S.E.2d 513, and Vrabel, 545 S.W.2d 53. Indeed, “grantor’s land” could



8.       DRD’s Blanket Easement described the purported servient tenement only as
         “grantor’s land.” The easement did not give a description or even suggest a
         nonlegal, commonly understood point of reference like in Ford, where the
         conveyance described the land as being “situated on Belle Fourche [R]iver,
         Butte [C]ounty” and “commonly known as the headquarters of Ford Bros.
         Cattle Company on Belle Fourche [R]iver, Butte [C]ounty.” Id. at 646, 124
         N.W. at 1109.


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have included any property that was owned by Dakota Resorts in the vicinity of

Emery Nos. 4 and 5 on February 16, 2000. Contrary to the circuit court’s opinion,

there is certainly nothing in the language of the purported easement suggesting

that the burdened land was located between Emery Nos. 4 and 5 and “Terry Peak

Summit Road,” the latter descriptor being parole evidence not mentioned in the

Blanket Easement. 9

[¶27.]         We conclude that the words “grantor’s land” are not by themselves

“sufficient to serve as a pointer or a guide to the ascertainment of the location of the

land.” See Thompson, 221 N.C. at 180, 19 S.E.2d at 485. This non-descriptive

language, neither describes the land sufficiently enough to locate the servient

tenement nor references another document which does so. See Berg, 125 Wash.2d

at 551, 886 P.2d at 569. The description furnishes no means or data pointing to

evidence that identifies the servient tenement. See Heron, 117 P.2d at 246. It

clearly does not enable a person to identify what lots in Aventure’s

subdevelopment—to the exclusion of all other lots—are burdened as the servient

tenement. See Coppard v. Glasscock, 46 S.W.2d 298, 300 (Tex. Com. App. 1932).

The description was inadequate to give notice or be legally effective as to Flickemas

and PSC.




9.       There is no Terry Peak Summit Road reference in the easement. Therefore,
         there is nothing in the easement limiting “grantor’s land” to a location
         between Emery Nos. 4 and 5 and Terry Peak Summit Road. The sole
         reference to Emery Nos. 4 and 5 and “grantor’s land” means that the servient
         tenement could have included any land Dakota Resorts may have owned that
         was contiguous to Emery Nos. 4 and 5 at any location.

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[¶28.]       “Although we may not agree with the rationale of the circuit court, we

will uphold summary judgment if there is a valid basis to do so.” Hoekman v.

Nelson, 2000 S.D. 99, ¶ 6, 614 N.W.2d 821, 823. “[A] trial court may still be upheld

if it reached the right result for the wrong reason.” Schmiedt v. Loewen, 2010 S.D.

76, ¶ 20 n.3, 789 N.W.2d 312, 318 n.3 (quoting Flugge v. Flugge, 2004 S.D. 76, ¶ 35,

681 N.W.2d 837, 846). Because the Blanket Easement was insufficient to create an

easement burdening Flickemas’ Lot 5 or PSC’s Lot 6, the circuit court’s judgment is

affirmed.

[¶29.]       GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY

and SEVERSON, Justices, concur.




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