#26107, #26108, #26116-rev & rem-SLZ

2012 S.D. 32

                                      IN THE SUPREME COURT
                                              OF THE
                                     STATE OF SOUTH DAKOTA
                                               ****
                                              #26107

DALE E. SPRINGER, DOROTHY M.
SPRINGER, ROGER A. SPRINGER
and DANIEL L. SPRINGER,                                            Plaintiffs and Appellants,

         v.

ANDY CAHOY,                                                        Defendant and Appellee,

         and

DONALD L. MCCLUNG,
AS TRUSTEE OF THE DONALD L.
MCCLUNG TRUST, LEONARD M.
MCCLUNG, AS TRUSTEE OF THE
LEONARD M. MCCLUNG TRUST and
ALL OTHER PERSONS UNKNOWN
CLAIMING ANY RIGHT, TITLE, ESTATE,
LIEN OR INTEREST IN THE COMPLAINT
ADVERSE TO PLAINTIFFS’
OWNERSHIP OR ANY CLOUD ON
PLAINTIFF’S TITLE,                                                 Defendants.
---------------------------------------------------------------------------------------------------------------------
                                         #26108, #26116 (N.O.R.)

DALE E. SPRINGER, DOROTHY M.
SPRINGER, ROGER A SPRINGER
and DANIEL L. SPRINGER,                                            Plaintiffs and Appellees,

         v.

ANDY CAHOY,                                                        Defendant and Appellant,

         and

DONALD L. MCCLUNG, AS TRUSTEE
OF THE DONALD L. MCCLUNG TRUST,
LEONARD M. MCCLUNG, AS TRUSTEE
OF THE LEONARD M. MCCLUNG TRUST
and ALL OTHER PERSONS UNKNOWN
CLAIMING ANY RIGHT, TITLE, ESTATE,
LIEN OR INTEREST IN THE COMPLAINT
ADVERSE TO PLAINTIFFS’ OWNERSHIP
OR ANY CLOUD ON PLAINTIFF’S TITLE,       Defendants.

                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    CLARK COUNTY, SOUTH DAKOTA

                                  ****

                    THE HONORABLE RONALD K. ROEHR
                                Judge

                                  ****

GARY W. SCHUMACHER of
Wilkinson & Wilkinson
De Smet, South Dakota                    Attorneys for plaintiffs and
                                         appellants #26107, for plaintiffs
                                         and appellees #26108, #26116
                                         (N.O.R.).


GORDON P. NIELSEN of
Delaney, Vander Linden,
Delaney, Nielsen & Sannes, P.C.
Sisseton, South Dakota                   Attorneys for defendant and
                                         appellant #26108, for defendant
                                         and appellee #26107.

                                         CONSIDERED ON BRIEFS
                                         ON MARCH 19, 2012

                                         OPINION FILED 05/02/12
#26107, #26108, #26116

ZINTER, Justice

[¶1.]        The central issue in these consolidated appeals is whether an

easement implied from prior use exists. Dale Springer, Dorothy Springer, Roger

Springer, and Daniel Springer (Springers) own a forty-acre parcel of property. Andy

Cahoy owns an adjoining forty-acre parcel. After Springers purchased their parcel,

they began using Cahoy’s parcel to access their property. When Cahoy prohibited

Springers from crossing Cahoy’s parcel, Springers filed suit claiming an implied

easement on Cahoy’s parcel. The circuit court concluded that an easement implied

from prior use exists with certain limitations. Both parties appealed, and the

appeals have been consolidated. We reverse the circuit court’s determination that

an implied easement exists.

                            Facts and Procedural History

[¶2.]        From 1947 to 1967, Lester Harrington owned the two forty-acre

parcels at issue. Harrington farmed the east and west parcels as one tract. On

October 13, 1967, Harrington deeded the east forty-acre parcel to his son George

Harrington and the west forty-acre parcel to his daughter Lylia McClung. After a

number of additional transfers of the then-separate parcels, the parties in this

litigation ultimately acquired title. Cahoy purchased the west parcel in November

2007. Springers purchased the east parcel in May 2008.

[¶3.]        From 1967 until 2007, when Cahoy purchased his property, the two

parcels were owned separately but were rented to one person and were operated as

one unit. After the Springer-Cahoy purchases, the east parcel became an isolated

tract in the sense that it had no direct access to a public highway. There is also no


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#26107, #26108, #26116

written document, either recorded or unrecorded, granting an easement across the

west parcel for the benefit of the east parcel.

[¶4.]         In the spring of 2008, Cahoy put up no trespassing signs attempting to

restrict Springers from crossing his parcel. Springers, however, continued to cross

Cahoy’s parcel to access their property. Consequently, in 2009, Cahoy locked the

gates that provided access to his parcel. Springers subsequently filed this suit

claiming an implied easement on Cahoy’s parcel.

[¶5.]         Following a court trial, the circuit court concluded that an easement

implied from prior use exists.1 The court limited the easement to use for ingress

and egress in the spring and fall over a meandering route proposed by Springers.

The court also limited the easement’s use to agricultural purposes, including

pasturing, haying, farming, and the care of trees. Tractors and other agricultural

equipment were required to be of seventy horsepower or less with “flotation” tires so

as to limit damage to Cahoy’s parcel. Nonagricultural uses, such as hunting,

fishing, trapping, or recreation, were not permitted.

[¶6.]         Cahoy appeals the circuit court’s order declaring the existence of the

implied easement. Cahoy argues that: (1) the circuit court erred in determining

that an easement exists; (2) South Dakota’s Marketable Title Act bars a claim of

interest (an implied easement) first asserted forty-two years after the claim

allegedly arose; and (3), in the alternative, that Cahoy, the owner of the servient

tenement, is entitled to locate the easement so long as the location is reasonably


1.      Having determined that an easement implied from prior use exists, the
        circuit court did not address Springers’ claim of entitlement to an easement
        implied by necessity. We express no opinion on that claim.

                                           -2-
#26107, #26108, #26116

suited to the servitude. Springers, by appeal and notice of review, argue that the

circuit court erred in restricting the uses of the easement. Because Cahoy’s first

argument disposes of the appeal, we only address the issue of the existence of an

easement implied from prior use.

                                       Decision

[¶7.]        “The common law recognizes two types of implied easements:

easements by necessity and easements implied from prior use.” Thompson v. E.I.G.

Palace Mall, LLC, 2003 S.D. 12, ¶ 11, 657 N.W.2d 300, 304. To establish an

easement implied from prior use, the party claiming the easement must establish

the following four elements:

             (1) the relevant parcels of land had been in unitary ownership;
             (2) the use giving rise to the easement was in existence at the
             time of the conveyance dividing ownership of the property; (3)
             the use had been so long continued and so obvious as to show
             that it was meant to be permanent; and (4) at the time of the
             severance, the easement was necessary for the proper and
             reasonable enjoyment of the dominant tract.

Id. ¶ 14. “A party seeking an implied easement has the burden of proving the

existence of the easement by clear and convincing evidence.” Griffeth v. Eid, 573

N.W.2d 829, 832 (N.D. 1998); accord Cobb v. Daugherty, 225 W. Va. 435, 442, 693

S.E.2d 800, 807 (2010).

[¶8.]        Cahoy argues that to prevail on their claim, Springers were required to

present clear and convincing evidence that at the time of the 1967 severance of title,

a servitude on the west parcel to access the east parcel was so obvious that it

indicated an easement was intended to be permanent. We agree. See Thompson,

2003 S.D. 12, ¶ 14, 657 N.W.2d at 305 (stating that the use “had been so long

continued and so obvious as to show that it was meant to be permanent”); Wiege v.
                                        -3-
#26107, #26108, #26116

Knock, 293 N.W.2d 146, 148 (S.D. 1980) (stating that to establish an easement

implied from prior use, there must be “during unity of title, an apparently

permanent and obvious servitude”); Townsend v. Yankton Super 8 Motel, Inc., 371

N.W.2d 162, 165 (S.D. 1985) (“[W]here an owner conveys part of his land, he

impliedly grants all those apparent or visible easements upon the part retained,

which were at the time used by the grantor for the benefit of the part conveyed and

which are reasonably necessary for the use of that part.” (emphasis added) (citing 1

Thompson on Real Property § 392, at 636)). See also Black’s Law Dictionary 1492

(9th ed. 2009) (defining an “apparent servitude” as “[a] servitude appurtenant that

is manifested by exterior signs or constructions, such as a roadway”).

[¶9.]         In this case, Springers produced no evidence that at the time of the

1967 severance of title, an obvious or visible trail, path, roadway, or servitude

existed from the west parcel to access the east parcel on the meandering route

proposed by Springers. The only witness who had any personal knowledge of the

property around 1967 was Donald McClung. He testified that the west parcel was

just a pasture with no obvious servitude crossing it.2 Further, the only


2.      Donald McClung testified:

              Q. What’s your first recollection of being out to that property,
                 Mr. McClung?
              A. Probably, way back as a kid, you know. I mean, you know,
                 through the years there’s different times. You know, I
                 remember riding on that property with my grandfather
                 ([Lester Harrington]). So, it had to be a long time.
              Q. Do you ever recall seeing a permanent roadway leading
                 across your property to the Springer property?
              A. No. There never was. Because that was a – like a pasture,
                 basically.


                                          -4-
#26107, #26108, #26116

photographic evidence around the time of severance was a 1971 aerial photograph.

That photograph did not reveal any path, trail, or obvious servitude from the public

road across the west parcel to the east parcel. Springers did present some evidence

of a visible pathway, but that evidence related to conditions existing long after the

severance of title. Thus, there was no clear and convincing evidence of the existence

of an apparently permanent and obvious servitude in use in 1967.

[¶10.]         We acknowledge that the circuit court concluded that the “[u]se of

[Cahoy’s] parcel to access the [Springers’] parcel has been so long[,] continuous and

so obvious that it was meant to be permanent.” We also agree one may infer that

general, unspecified access to the east parcel occurred from the west parcel over the

years. But a trial court’s conclusions of law must be supported by its findings of

fact, Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D. 1984), and the court did not find

that there was a historical use of Springer’s proposed trail that was so continuous,

obvious, and visible to make it an apparently permanent easement at the time of

severance.3 Indeed, as we have previously pointed out, there is no evidence of any




3.       The circuit court’s findings simply reflect that because the parcels were
         historically one unit and the public road bounded the property on the western
         side, Lester Harrington accessed all of the property from the public road. The
         court found:

               Access to the parcel held by the Plaintiffs has historically been
               across the parcel held by Defendants. Lester Harrington gained
               access to the property from the public road adjacent to the west
               boundary of the property. There is no evidence that he accessed
               it in any other manner during his twenty years of unitary
               ownership. There were no other adjacent public roads. Lester
               Harrington did not own other adjacent property.

                                                             (continued . . .)
                                           -5-
#26107, #26108, #26116

continuous, obvious, and visible path or trail suggesting an apparently permanent

easement at the time of severance.

[¶11.]       We conclude that Springers failed to present clear and convincing

evidence of an easement implied from prior use. In light of this holding, we do not

consider the other arguments of the parties. Reversed and remanded for further

proceedings not inconsistent with this opinion.

[¶12.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




________________________
(. . . continued)
         These findings do not reflect that Springer’s proposed servitude so obvious or
         visible that an apparently permanent easement was being used at the time of
         severance.

                                          -6-
