#24437-r-SLZ
2007 SD 121
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
RALPH WILLIAM BOYER, Plaintiff and Appellant,
v.
KATHRYN DENNIS, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE THOMAS L. TRIMBLE
Judge
* * * *
ROLAND E. GROSSHANS Attorney for plaintiff
Rapid City, South Dakota and appellant.
TINA M. HOGUE of
Finch, Bettmann, Maks & Hogue, P.C. Attorneys for defendant
Rapid City, South Dakota and appellee.
* * * *
CONSIDERED ON BRIEFS
ON OCTOBER 1, 2007
OPINION FILED 11/20/07
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ZINTER, Justice
[¶1.] Ralph Boyer appeals the circuit court’s judgment concluding that
Boyer’s easement for ingress and egress over Kathryn Dennis’ property was
extinguished by nonuse and intent to abandon. We reverse.
[¶2.] Boyer and Dennis own adjoining parcels of land. The northern border
of Boyer’s property (Lot B) is the southern border of Dennis’ property (Lot L1 ).
Boyer purchased Lot B with his wife Angela on May 15, 1982, from Dorothy Storm.
Storm acquired the property from her husband Clemens Storm on December 20,
1976. Clemens Storm purchased Lot B from Arthur and Katherine Heligas on
March 29, 1973.
[¶3.] While Arthur and Katherine Heligas were owners of Lot B, they also
were owners of Lot L. During the time they owned both lots, they granted an
express easement for ingress and egress over Lot L for the benefit of Lot B. 2 Dennis
1. Although Dennis’ property also includes 34 feet of Lot M directly to the west
of Lot L, for simplicity we refer to the property in its entirety as Lot L.
2. A visual depiction of the properties and easement follows:
(continued . . .)
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acquired ownership of Lot L from Arthur Heligas on August 4, 1972. The deed
acknowledged the easement. At the time the property was conveyed, a wire fence
separated Lots B and L. In 1973, Dennis built her home on Lot L.
[¶4.] After Dennis purchased Lot L, Arthur Heligas never utilized the
easement for access to Lot B. Instead, Heligas accessed Lot B through two
alternative routes: (1) via Canyon Lake Drive, Lilac Lane, and a sixteen foot
easement over a lot south of Lot B; or (2) via Lakeview Drive, crossing private
property directly south of Lot B (the Alternate Routes).
[¶5.] When Clemens Storm purchased Lot B in 1973, Storms sporadically
used the easement. The majority of the time they used the Alternate Routes to
access Lot B. Dennis had informed Dorothy Storm that Dennis was not in
agreement with Storm’s use of the easement for ingress and egress. When Dorothy
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(. . . continued)
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Storm became title holder of Lot B in 1976, the Storms discontinued all use of the
easement.
[¶6.] On May 15, 1982, Dorothy Storm sold Lot B to Boyers. Although
Boyers purchased the property, Angela’s parents, the Winchesters, occupied the
property until the Boyers divorced in 2006. In that same year Ralph Boyer became
the sole owner of Lot B, he moved onto the property, and made his first personal
attempt to utilize the easement on Lot L for ingress and egress to Lot B. Boyer’s
attempt to utilize the easement was the catalyst for the suit, and the Winchester
family’s use or nonuse of the easement during their occupancy from 1982 to 2006
was the focus of the trial.
[¶7.] The trial court found: (1) that from May 15, 1982 until April 1, 2006,
neither Boyer nor the Winchesters used the easement as a means of ingress and
egress to Lot B, rather they accessed Lot B via the Alternate Routes; (2) that
Winchesters impeded the use of the easement by placing “junk cars” and wood piles
at its entry; (3) that Boyer/Winchesters failed to maintain the easement, allowing
bushes, shrubs, and lawn to encroach; and (4) that Winchesters had closed and
bolted shut the easement’s access gate, essentially destroying the right to use the
right-of-way. Although there was evidence of extremely limited vehicle use and
some foot and bicycle use during this time, the court concluded that foot and bicycle
traffic of a “kid” was not the type of ingress and egress contemplated by the express
grant. The court stated, “[t]he fact that some kid walks down the road or rides his
bicycle down it, I don’t think that’s the intended use of the easement.” The court
also discounted the Winchesters’ vehicular use of the easement, some of which was
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the result of city construction on the Alternate Routes. The trial court ultimately
concluded that Boyer’s easement had been extinguished.
[¶8.] Boyer appeals, contesting both the trial court’s findings of fact and
conclusion of law. “‘We review a trial court’s findings of fact under a clearly
erroneous standard.’ Clear error is shown only when, after a review of all the
evidence, ‘we are left with a definite and firm conviction that a mistake has been
made.’” Graves v. Dennis, 2004 SD 137, ¶9, 691 NW2d 315, 317 (citation omitted).
Conclusions of law are reviewed de novo. Northstream Inv., Inc. v. 1804 Country
Store Co., 2007 SD 93, ¶8, 739 NW2d 44, 47.
[¶9.] An easement may be extinguished by “the performance of any act upon
either tenement, by the owner of the servitude, or with his assent, which is
incompatible with its nature or exercise.” SDCL 43-13-12. Intent to abandon the
easement is also required.
Under this statute, “there must be an affirmative act of
abandonment on the part of the owner of the easement to
extinguish the easement. Mere nonuse of an easement, created
by grant, is insufficient to satisfy this requirement.” Hofmeister
v. Sparks, 2003 SD 35, ¶13, 660 NW2d 637, 641 (citing Clark v.
Redlich, 147 CalApp2d 500, 305 P2d 239, 244 (1957)). However,
a substituted access may serve as evidence of abandonment, but
that by itself is not dispositive. Id. Use of a substitute road may
be evidence of an abandonment of the old road; however, “[t]he
mere use of a new right-of-way will not extinguish the old.
There must also be an abandonment by non-use of the old right-
of-way.” Id. (quoting Shippy v. Hollopeter, 304 NW2d 118, 122
(SD 1981)). Those claiming abandonment carry the burden of
showing by clear and convincing evidence an intent to abandon
the easement. Cleveland v. Tinaglia, 1998 SD 91, ¶26, 582
NW2d 720, 725; see Mueller v. Bohannon, 256 Neb 286, 589
NW2d 852, 859 (1999).
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Graves, 2004 SD 137, ¶11, 691 NW2d at 318. The clear and convincing evidence of
intent to abandon was emphasized in Graves:
Failure to take advantage of a servitude benefit, even for a
lengthy period, is seldom sufficient to persuade a court that
abandonment has occurred. Some additional action on the part
of the beneficiary inconsistent with continued existence of the
servitude is normally required, although the amount of
additional evidence required tends to diminish as the period of
nonuse grows longer. In cases where a very long period of time
has passed, abandonment may be found even without other
evidence of intent.
Id. ¶12, 691 NW2d at 318 (quoting RESTATEMENT (THIRD) OF PROPERTY, § 7.4 cmt. c
(2000)). Ultimately, because of the nature of these cases: “A finding of
abandonment is usually based on circumstantial evidence rather than on direct
expressions of intent . . . .” Id.
[¶10.] Boyer argues that the acts of the Winchesters, the tenants in
possession, did not reflect an intent to abandon the easement. He specifically
contends the trial court erred in finding that the easement had not been used for
ingress and egress from 1982 through 2006. With respect to the trial court’s
conclusions, he contends that the trial court erred as a matter of law in concluding
that the pedestrian, bicycle, and sporadic vehicular use did not constitute ingress
and egress sustaining his easement. We agree with Boyer.
[¶11.] In reaching its decision, the trial court placed significant weight on
the fact that at some points in time Winchesters closed, and at one point even
bolted, the access gate to the easement. This conduct, however, did not reflect an
intent to abandon. The testimony was undisputed that the gate was shut to stop a
neighbor’s (a non-dominant tenant’s) constant vehicular use of the private easement
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and to keep trespassing children out of Winchesters’ workshop. Rather than
reflecting an intent to abandon, these actions reflected an intent to protect Lot B
from trespassers and to limit use of the private easement to those individuals who
had a right to use it. Moreover, in 1994, the chain on the gate was exchanged for a
rope to permit access to the easement by the Winchesters’ children who used it to
get back and forth to school and deliver newspapers. This gated use by the
possessors of the dominant tenement reflected intent to use the easement for
ingress and egress.
[¶12.] The trial court also found that foliage had encroached on the easement,
and on occasion junk cars and wood piles partially or temporarily blocked its
entrance. This encroachment and storage of items that partially or temporarily
blocked the easement was not, however, dispositive evidence of abandonment.
It has often been held that an unintentional or a partial blocking
is insufficient to disclose abandonment and so long as the
purpose of ingress and egress is not substantially interfered
with, no rights of the owners are lost. . . . As a general rule, a
mere neglect of the condition of a way is not enough in addition
to nonuser to show abandonment.
Harrington v. Kessler, 247 Iowa 1106, 1111, 77 NW2d 633, 635 (Iowa 1956)
(citations omitted). We conclude that the trial court erred in viewing the
encroachment and Winchesters’ conduct of storing these items in front of the
easement as demonstrating intent to abandon. All items alleged to have been
stored were moveable, they were not stored the entire twenty-four year period, and
as we explain below, none of this conduct substantially precluded ingress and
egress. Therefore, the encroachment and the storage of these items did not clearly
and convincingly evince the intent to permanently abandon the easement.
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[¶13.] We finally observe that there was uncontested evidence that this
easement was used for ingress and egress between 1982 and 2006. The record
reflects a number of examples of the tenants’ use of the easement for ingress and
egress by foot, bicycle and vehicle. With regard to vehicle use, Jeff Winchester was
specifically asked if from 1982 to 1986 he, his father or brothers had used the
“easement for ingress and egress to the property.” Although Jeff indicated that the
easement had been used for ingress and egress “seldom” or only “[o]nce in awhile,”
he testified that they used the easement at times when “moving vehicles out and
about.” Jeff also testified that the easement had been used by the entire family
when the Alternate Routes were torn up by a utility company in 1988. Additionally,
a neighbor testified that in 1986, “the gate was open and cars were going back and
forth on the easement.” Finally, the evidence reflected that Boyer’s former father-
in-law used the easement for ingress and egress prior to his death in 1997. 3
[¶14.] With respect to other uses, the evidence was uncontested that in 1983,
Jeff, who was in ninth grade at the time, used the easement “daily” on his bicycle, to
get to and from high school. He also used the easement to deliver papers in 1984.
In 1998, Loren Winchester, Jeff’s child and tenant of Lot B, used the easement for
ingress and egress to catch the Headstart bus. The bus would actually “stop over on
the easement” (on the north end of the easement directly in front of Dennis’ house)
to pick up Loren. Finally, Loren, along with his parents, used the easement
3. Although evidence established that the City of Rapid City had provided a
temporary easement over Lots B and L for the entire neighborhood’s use at
one time, none of the above listed uses were associated with this temporary
(continued . . .)
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“regularly” to deliver newspapers and occasionally to pick up the family’s mail
around 2002 through 2003.
[¶15.] These uses to get to and from school and Headstart, to pick up mail,
and to deliver newspapers demonstrated use for ingress and egress by the tenants
in possession. Furthermore, these uses cannot be discounted merely due to the type
of transportation or the age of the tenant. The easement grant did not limit ingress
and egress to vehicular traffic for adults. Because vehicular use for adults was not
the exclusive use specified by the grant, “bicycles, handcarts, and foot travel must
also be given consideration” when evaluating whether the owner intended to
abandon the easement. Harrington, 247 Iowa at 1112, 77 NW2d at 636.
[¶16.] We conclude the trial court erred as a matter of law and fact in finding
that the easement had not been used for ingress and egress for twenty to thirty
years. Although Boyer’s tenants accessed Lot B via the Alternate Routes most of
the time, the trial court erred as a matter of law in failing to give consideration to
the uses that did occur. Those uncontested uses did not reflect clear and convincing
evidence of nonuse and intent to abandon the easement.
[¶17.] Reversed.
[¶18.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and
MEIERHENRY, Justices, concur.
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(. . . continued)
easement. The temporary easement was strictly confined to a 30 day period
around July of 2004.
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