#28114-a-GAS
2017 S.D. 62

                        IN THE SUPREME COURT
                                OF THE
                       STATE OF SOUTH DAKOTA

                               ****
NOEL CHICOINE and
TERESA CHICOINE,                        Plaintiffs and Appellants,

     v.

WILLIAM DAVIS and
CAROL DAVIS,                            Defendants and Appellees,
     and
GREG PEARSON and PAMELA
PEARSON as TRUSTEES OF
PAMELA G. PEARSON REVOCABLE
TRUST, JAMES HALLING, DEBRA
HALLING, JAMES BRUNDISH,
KEVIN FETERL and JANET FETERL,          Defendants.


                             ****
                APPEAL FROM THE CIRCUIT COURT OF
                   THE FOURTH JUDICIAL CIRCUIT
                 LAWRENCE COUNTY, SOUTH DAKOTA
                             ****
                THE HONORABLE MICHELLE K. COMER
                              Judge
                             ****

GREGORY J. BERNARD of
Thomas Braun Bernard
 & Burke, LLP
Rapid City, South Dakota                Attorneys for plaintiffs and
                                        appellants.

JOHN R. FREDERICKSON
Deadwood, South Dakota                  Attorney for defendants and
                                        appellees William and Carol
                                        Davis.

                               ****
                                        CONSIDERED ON BRIEFS
                                        ON AUGUST 28, 2017
                                        OPINION FILED 10/25/17
#28114

SEVERSON, Justice

[¶1.]        Noel and Teresa Chicoine (the Chicoines) commenced this action

asking that the circuit court declare that they have an access easement across

Mineral Survey 1758 (M.S. 1758) into the adjoining Mineral Survey 1794. The

circuit court found that no easement exists, either by grant or prescription. The

Chicoines appeal the circuit court’s determination, asserting that a public right-of-

way exists across M.S. 1758 by grant. They do not appeal the denial of a

prescriptive easement. We affirm.

                                    Background

[¶2.]        The Chicoine own real property within M.S. 1794 (a/k/a Clondyke

subdivision). The Chicoines own lot 4 within the Clondyke subdivision. Lot 1 of the

Clondyke subdivision shares a border with Mineral Survey 1758 and is north of the

Chicoines’ property. Five lodes comprise M.S. 1758: Lillah Fraction, Truro, Red

Coat, Monday, and Red. Defendants William and Carol Davis own the Monday and

Red Coat lodes. As the circuit court found below, a primitive road enters M.S. 1758

on the Lillah Fraction lode to the north and traverses southward across each lode.

As the road traverses further south across the lodes, it becomes more primitive and

overgrown. This is the road over which the Chicoines claim a right of way. Two

relevant maps (Exhibits 2 and 33) are roughly combined below for reference. The

map of M.S. 1758 is a surveyor drawing; the map of the Clondyke subdivision is a

plat map. No plat of M.S. 1758 was entered into evidence.




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[¶3.]        The Chicoines’ complaint alleged that they have an easement over the

road, either by way of prescription or through the various plats and deeds to the

Clondyke subdivision and M.S. 1758. The circuit court determined that the

Chicoines do not have a prescriptive easement and that the road across M.S. 1758 is

private. On appeal to this Court, the Chicoines do not challenge the circuit court’s

determination that no prescriptive easement exists. Instead, they claim that the

M.S. 1758 conveyances preserve a public right of way on the existing road.

                               Standard of Review

[¶4.]        “Construction of a deed is a question of law.” Swaby v. N. Hills Reg’l

R.R. Auth., 2009 S.D. 57, ¶ 22, 769 N.W.2d 798, 808. “We examine the instrument

as a whole to determine what type of conveyance was intended.” Id. (quoting Tripp

v. F & K Assam Family, LLC, 2008 S.D. 78, ¶ 9, 755 N.W.2d 106, 109). “If the

language of a deed leaves doubt on the intention of the parties, we will consider all

the attendant circumstances existing at the time of execution.” Id.

                                      Analysis

[¶5.]        In 1995, a group of grantors owned all of M.S. 1758 and conveyed it to

James Peterson and Gail Peterson as tenants in common. The warranty deed to the

Petersons stated that the property was “[s]ubject to a statutory easement for a 66’

road right of way along section line bounding or within the land herein described.”

Over the years, James Peterson conveyed the lodes to others.

[¶6.]        In 1996, James Peterson entered into a purchase agreement with

William and Carol Davis for the purchase of the Monday lode. The agreement

provided in section 33 that “[e]asements for road right-of-way will be 66’ wide. (Not


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road surface)” and in section 36 that “Buyers give Seller the right-of-way across

Monday to Red for road and utilities in the approximate location of the present dirt

road. Seller will provide a gravel access drive approximately 10’ wide (width of

vehicle) from the approximate north boundary of M.S. 1758 to the north boundary of

Red following present location of the present dirt road as much as possible. There

will be no cul de sac at the end of the drive.”

[¶7.]        In 1997, James Peterson executed a warranty deed to Gregory and

Pamela Pearson, granting them the Red lode of M.S. 1758. The deed provided that

the property was subject to terms and conditions, including that “[e]asements for

road-right-way are reserved across each lode of M.S. 1758 and will be 66’ wide. (Not

road surface.).” It also provided that “Seller will provide a gravel access drive

approximately 10’ wide (width of a vehicle) from the approximate north boundary of

M.S. 1758 to the north boundary of Red following present location.” A warranty

deed from the Pearsons conveying the property to Pamela G. Pearson and Gregory

C. Pearson, Trustees of the Pamela G. Pearson Revocable Trust, contained the same

language.

[¶8.]        In 2001, James Peterson executed a warranty deed for the Truro lode

of M.S. 1758, granting it to Scott and Marcia McGregor. It included in its terms and

conditions that “[e]asements for road right-of-way are reserved across each lode of

M.S. 1758 and will be 66’ wide.” A warranty deed from the McGregors to James and

Debra Halling granted the Hallings the Truro lode “SUBJECT TO existing road

across M.S. 1758 for access to adjoining properties; statutory easement for 66’ right




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of way along section lines bounding or within the land herein described; and road

easement and Restrictions for M.S. 1758 as set out in Plat Doc. No. 97-4078.”∗

[¶9.]          Also in 2001, James Peterson granted, by warranty deed, to James

Brundish the Red Coat lode of M.S. 1758. The deed provided that the property was

subject to terms and conditions, which included “easements for section lines and

road right-of-way are reserved across each lode of M.S. 1758 and will be 66’ wide.”

In 2005, James Brundish conveyed the property through warranty deed to William

and Carol Davis. The deed provided that the land was “[s]ubject to all reservations,

easements and rights-of-way expressly conveyed or reserved in prior grants and/or

deeds, or created by operation of Federal or State law.”

[¶10.]         Finally, in 2002, James Peterson conveyed the Lillah Fraction lode of

M.S. 1758 to Howard and Kate Sickler. The warranty deed to the Sicklers also

provided that “[e]asements for road right-of-way are reserved across each lode of

M.S. 1758 and will be 66’ wide. (Not road surface.).” The Sicklers executed a

warranty deed in 2006 conveying Lillah Fraction to Maverick Motors, LLC and The

4L, LLC. The deed also provided that “[e]asements for road right-of-way are

reserved across each lode of M.S. 1758 and will be 66’ wide. (Not road surface).” A

warranty deed from Maverick Motors, LLC and The 4L LLC conveyed the property

to Kevin and Janet Feterl. The deed contained the same right-of-way language as

the prior two deeds.

[¶11.]         The Chicoines only appeal the circuit court’s determination that the

road is private. They contend that the language in the 1995 deed subjecting the


∗        It does not appear that the plat for M.S. 1758 was introduced into evidence.

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land to a “statutory easement for a 66’ road right of way along section line bounding

or within the land herein described”—which was repeated in subsequent deeds

related to the various lodes—refers to a public easement for a road. They further

contend that a statutory, public road currently crosses each lode of M.S. 1758.

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

to dedicate the easement and the public entity accepts the designation.” Knight v.

Madison, 2001 S.D. 120, ¶ 5, 634 N.W.2d 540, 542. No governmental entity has

been joined to these proceedings. And no party has asserted that the government is

an indispensable party. The government must be joined to an action seeking to

declare a road public. See J.K. Dean, Inc. v. KSD, Inc., 2005 S.D. 127, ¶ 18, 709

N.W.2d 22, 25-26 (“When an action is brought seeking or having the effect of

declaring a road as dedicated to the public, the public entity that will be forced to

maintain the dedicated road is an indispensable party to the action.”); Busselman v.

Egge, 2015 S.D. 38, ¶ 8, 864 N.W.2d 786, 789-90 (“[E]ven though Busselman is not

attempting to force any governmental authority to maintain the service road, that is

the effect of declaring it to be a dedicated road.”). No party to these proceedings has

indicated which governmental authority would be responsible for maintaining this

road if it were declared to be public. Without the proper governmental entity joined

in this action and no argument by the Chicoines that the road has been dedicated

and accepted by the appropriate governmental entity, they have failed to

demonstrate that the road is anything other than private. And it does not appear

that the Chicoines even attempt to argue before this Court that they have a private

interest in the road.


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[¶13.]       We agree with the circuit court’s determination that the language in

the deeds subjecting the property to a “statutory easement” unambiguously refers to

the easements established by SDCL 31-18-1 and SDCL 31-18-2. SDCL 31-18-1

provides:

             There is along every section line in this state a public highway
             located by operation of law, except where some portion of the
             highway along such section line has been heretofore vacated or
             relocated by the lawful action of some authorized public officer,
             board, or tribunal.

(Emphasis added.) SDCL 31-18-2 provides:

             Every statutory section-line highway shall be sixty-six feet wide
             and shall be taken equally from each side of the section line,
             unless changed as provided in this title, but nothing herein
             contained shall prevent the highway authority charged with the
             construction, reconstruction, or repair of any public highway
             along a section line from purchasing or condemning right-of-way
             for widening the highway to more than sixty-six feet or from
             purchasing or condemning more right-of-way on one side of the
             section line than on the other, provided they deem it necessary
             so to do in order to provide a better highway, to avoid
             destruction of trees or valuable buildings or to avoid unsuitable
             terrain.

There is no dispute that the road is not along a section line, and there has been no

argument that the road is a relocated section-line highway. See SDCL 31-18-3

(providing for the vacation or change of location of section-line highways).

Therefore, on the record before this Court, we cannot determine whether the road in

dispute is a section-line highway.

                                     Conclusion

[¶14.]       The deeds to M.S. 1758 that include a “statutory easement”

unambiguously refer to the section-line highways established by SDCL chapter 31-

18. Alternatively, the requirements for a public easement by grant would need to

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be demonstrated. The Chicoines have not met either burden in this case as they

have failed to establish a right in the disputed road that traverses M.S. 1758 by

grant in deeds or by statute. Therefore, we affirm.

[¶15.]       GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and

WILBUR, Retired Justice, concur.




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