Vander Heide v. Boke Ranch, Inc.

#24273, #24285-aff in pt & rev in pt-DG

2007 SD 69

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *
TIMOTHY VANDER HEIDE and
RUTH McLAUGHLIN, Plaintiffs and Appellants,

v.

BOKE RANCH, INC., a South Defendant, Third Party
Dakota Corporation, Plaintiff and Appellee,

v.

BARRY D. BENDER and
MARJORIE J. BENDER, Third Party Defendants.

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

* * * *
HONORABLE RANDALL L. MACY
Judge
* * * *

COURTNEY R. CLAYBORNE of
Clayborne, Loos, Strommen & Gusinsky
Rapid City, South Dakota Attorneys for appellants.

BRAD P. GORDON
ROGER A. TELLINGHUISEN of
Tellinghuisen & Gordon
Spearfish, South Dakota Attorneys for appellees.

* * * *
CONSIDERED ON BRIEFS
ON APRIL 23, 2007

OPINION FILED 07/11/07
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GILBERTSON, Chief Justice

[¶1.] On July 13, 2005, Timothy Vander Heide (Timothy) and his wife Ruth

McLaughlin (Ruth) (collectively “Vander Heides”) filed a complaint in the South

Dakota Fourth Judicial Circuit against James Boke (James) and Boke Ranch, Inc.

(collectively “Boke”). Vander Heides’ complaint alleged an oral agreement

modifying a written easement and sought a declaratory judgment as to same, as

well as to a determination of the location of the easement and scope of access

restrictions. On August 22, 2005, Boke filed his answer. Subsequently, Boke

amended his answer and filed a third-party complaint against Barry D. and

Marjorie Bender (collectively “Benders”) alleging that Benders had expanded the

use of the easement beyond its express provisions. On June 12, 2006, a trial was

held after which the circuit court entered its memorandum decision, findings of fact,

and conclusions of law in favor of Boke as to the issues of oral modification and

location of the easement, in part for Boke as to the issue of restriction on access,

and in favor of Benders as to the use issue. We affirm in part and reverse in part.

FACTS AND PROCEDURE

[¶2.] In June 1982, Lawrence County vacated a road and right-of-way

running east and west through the adjoining properties of Loren R. Dodds and

Dwaine D. Dodds (collectively “Dodds”), on the west end and the estate of Elvin F.

Mitchell (Mitchell), on the east end. The right-of-way reverted to the adjacent

property owners, Dodds and Mitchell. The roadway had fallen into disrepair and

had essentially become a grass-grown, two-wheel path after years of minimal

maintenance. In July 1982, Dodds and Mitchell executed a written easement that
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provided for the mutual access and use of the roadway through their respective

properties. 1 Some time during the mid-1980s, Mitchell sold its property to Ruth.

In 1999, Dodds sold their property to Boke.

1. The July 1982 easement provides in pertinent part:

WHEREAS, Lawrence County, acting through its Board of County
Commissioners, has indicated a willingness to vacate that certain right-of-
way running from East to West across portions of the above described
property as owned by the above respective individual owners, and

WHEREAS, it is the mutual intention of the parties hereto that there be
retained an easement across their respective properties and following the
current established right-of-way and road for the private use of the parties
hereto, their successors and assigns, now therefore, in consideration of the
mutual easements hereby granted, the parties do hereby agree as follows:

(1) That Mitchell does hereby give and grant to Dodds, their
successors and assigns, a perpetual easement and covenant
running with the land for a continued use of the present
roadway across the real property described hereinabove being
owned by Mitchell;

(2) That Dodds does hereby give and grant to Mitchell a
perpetual easement and covenant running with the land for
the continued use by Mitchell of the present roadway across
the real property described hereinabove being owned by
Dodds;

(3) That the granting of the mutual easements hereunder, in no
way obligates the grantor to maintain any part of said roadway;

(4) That the parties, by the execution of this mutual easement,
intend to restrict future travel along said roadway and to that
extent gates may be placed on the respective properties,
provided however, that if such gates are locked by any grantor,
such grantor shall be obligated to provide the grantee with the
means of opening such gates for their private use in traveling
along said roadway covered by these mutual easements.

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[¶3.] Thereafter, Boke applied to the Lawrence County Board of

Commissioners to rezone his property for development purposes from agricultural

to rural residential. 2 Some time during the Fall of 2000, in advance of the rezoning

hearing, Boke and Timothy had a discussion about the rezoning application and

Boke’s intentions. Boke located Timothy in his driveway on the Vander Heide

property. The record evinces that the nature of that discussion is in dispute.

[¶4.] At the time Boke was applying to rezone his property, there were

several groups opposing any rural development in the area. Timothy has stated

that the conversation constituted a negotiation for his agreement not to oppose

Boke’s rezoning application. At a preliminary hearing he testified, “we weren’t big

fans of seeing this property developed,” but that “I would refrain from objecting to

the rezoning of the property if [Boke] would agree to abandon his right to exit any

traffic along the existing easement towards the east through our property. . . . [I]t

was his property. That was the agreement.” Timothy also testified that he believed

this to be a one-way restriction, while Boke testified at trial that he believed

Timothy reciprocally intended to use that portion of the roadway on the Vander

Heide property to provide ingress and egress for any future development

established on their property.

[¶5.] In disputing the claim that an oral agreement was consummated

during the conversation, Boke indicated that on the day he met with Timothy, their

discussion was “casual” and that it actually had a twofold purpose. At trial he

2. Boke’s parcel consists of 160 acres. His redevelopment plan establishes a
subdivision on the property consisting of 32 five-acre parcels.

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testified that first, he wanted to thank Timothy for helping his daughter with a

weed sprayer. Second, Boke testified that since Ruth, as the deed holder to the

Vander Heide property, had been given notice of his rezoning application, he

wanted to make himself available prior to the rezoning hearing, as a courtesy, to

answer any questions she or Timothy might have about the development plan.

Moreover, in refuting the claim of an oral agreement, Boke, a real estate agent

testified, “When I make agreements concerning real estate, I have an attorney draw

up an agreement. We were discussing what the intent was for the easement and

what the intent was for the rezoning.”

[¶6.] According to Boke, Timothy had two concerns about the project; the

potential affect on the creek that traversed the Vander Heide property, and

increased traffic on the portion of the roadway located on their land. Boke testified

that he told Timothy “the plans for the rezoning were not to exit any primary traffic

that way.” He also testified that due to the condition of that part of the roadway, to

do otherwise would require making considerable improvements and “that that was

not [his] intent.” He indicated that the county wanted to maintain the roadway

through Vander Heides’ property as an emergency access that the two discussed

that use and that Timothy did not object.

[¶7.] According to Boke, Timothy expressed no intent to appear at the

rezoning hearing to object to the Boke application. He testified that to the contrary,

Timothy “was not real pleased with the other parties in the area fighting all the

development and he was rather pleased to see [Boke’s development] going forward

as long as he did not get a lot of extra traffic his way.” Boke stated that despite

Timothy’s interest in creek flow and traffic issues, at no point during the discussion
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did he offer a quid pro quo wherein he would refrain from objecting to the rezoning

in exchange for Boke’s favorable consideration of his concerns. Neither did the two

discuss the potential for future development of the Vander Heide property nor

what, if any, access to such a project Boke would allow over its property.

[¶8.] The events giving way to the dispute between the parties began in

2005. Boke’s rezoning application was approved, although through 2005, no work

had commenced on the development. In 2003, Ruth quit claimed Timothy an

interest in the Vander Heide property. In 2005, Timothy contacted Boke to inform

him about a potential sale of the west 200 acres of Vander Heide property adjoining

Boke’s.

[¶9.] Afterward, the two buyers went to see Boke to discuss access to the

property they were proposing to purchase. They had been told by Timothy that the

roadway easement would provide them access over Boke’s property. Boke testified

that during this meeting he told the buyers that there was an easement and since it

ran with the land they had a right to whatever it provided. However, he also told

them that what the easement provided was uncertain. Timothy testified at a

preliminary hearing that when the buyers told Boke that they planned to build a

road within that part of the easement on Boke’s property, Boke replied that if they

did, he would exit his development to the east over the property they were

proposing to purchase and the Vander Heide property it adjoined.

[¶10.] Boke then sent a letter to Vander Heides attempting to clarify his

understanding of what was provided for by the easement and his belief that if any

agreement had been reached between him and Timothy during their conversation in

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2000, it provided that neither party was entitled to exit its development traffic over

the property of the other. Subsequently, the prospective buyers backed out of the

purchase and Vander Heides filed a claim against Boke seeking a declaratory

judgment as to the alleged oral modification agreement as well as a determination

of the location of the easement and the scope of its access restrictions.

[¶11.] On September 30, 2005, during the pendency of this litigation, Vander

Heides sold the 200 acres adjoining Boke’s property to Benders. In late October or

early November 2005, Benders called Boke to inform him that on the following day

they would begin graveling the roadway extending west over Boke’s property.

Benders were about to start construction of a new home and needed to gravel the

roadway to facilitate access for construction and utility workers and their

equipment. Boke filed for injunctive relief to stop the graveling operation, but the

application was not heard until after the graveling had been completed. Thereafter,

Boke sent letters to the Benders and Vander Heides informing them that he would

be installing locking gates across the roadway on his property. The letter included

keys so that the Benders and Vander Heides could open the gates.

[¶12.] On February 13, 2006, the Vander Heides and Benders filed a motion

for a temporary order to restrain Boke from maintaining the locking gates. In his

affidavit in support of the application for a temporary restraining order, Timothy

again addressed the alleged oral agreement stating that he and Ruth had:

surrendered and forgave . . . rights to contest and resist
[Boke’s] petition for zoning change on the condition that and
not by way of limitation: (1) [Boke’s] development not in any
way compromise the direction, water quality, or flow of a certain
creek which runs over and through [the Vander Heide] real
property, and (2) that [Boke] would develop the property and

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mandate the flow of traffic in such a way that traffic from
[Boke’s] purchasers not proceed east to west past [the Vander
Heide] residence on the previously referenced roadway, and
on other conditions not specifically set forth herein.

(Emphasis added). In addition, Timothy alleged in his affidavit that Boke had

violated an oral agreement, stating:

In violation of both the easement . . . and the oral agreement
of the parties, [Boke] has erected fences and gates with a lock
across the aforesaid roadway, thus prohibiting and restricting
access by [the Vander Heides and Benders]. . . .

(Emphasis added). On April 10, 2006, the circuit court filed an interim order

whereby the parties were directed to keep the gates closed but unlocked.

[¶13.] Following a June 12, 2006 trial, the circuit court entered its final

judgment on August 30, 2006, finding that the Fall 2000 conversation between Boke

and Timothy was not an enforceable oral modification of the written easement; the

portion of the easement extending over Vander Heides’ property included a

deviation, from the original county roadway, around a bridge washout; the

easement entitled Boke to install the gates he had placed across that portion of the

roadway that extended across his property, but that only the west gate, located

between his property and the public right-of-way could be locked; and Benders’

graveling of the roadway, extending over Boke’s property was a permitted use of the

easement.

[¶14.] On appeal, Vander Heides raises the following issues:

1. Whether the circuit court erred in concluding that the
Fall 2000 conversation between Boke and Timothy did
not constitute an enforceable contract modifying the
terms of the July 1982 written easement.

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2. Whether the circuit court erred when it determined
that a portion of the easement was located on Vander Heides’
property beyond the confines of the
original county roadway.

[¶15.] Boke raises the following issue on appeal by notice of review:

3. Whether the circuit court erred by concluding that
Benders’ graveling of the roadway over Boke’s property
did not constitute an improper expansion of the
easement.

[¶16.] The following issue combines Vander Heides’ issue and Boke’s
issue as to gating and or the locking thereof:

4. Whether the circuit court erred when it concluded that
the terms of the easement permitted Boke to install
gates across that portion of the roadway on his property,
but that he was only entitled to lock the west gate, located
between Boke’s property and the public right-of-way.

STANDARD OF REVIEW

[¶17.] “We review the circuit court’s findings of fact under the clearly

erroneous standard.” City of Deadwood v. Summit, Inc., 2000 SD 29, ¶9, 607 NW2d

22, 25 (citations omitted). “Conclusions of law are reviewed under a de novo

standard, giving no deference to the circuit court’s conclusions of law.” Id. (citations

omitted).

Contract interpretation is a question of law reviewable
de novo. Because we can review the contract as easily
as the trial court, there is no presumption in favor of the
trial court’s determination. When the meaning of contractual
language is plain and unambiguous, construction is not
necessary. If a contract is found to be ambiguous the
rules of construction apply. Whether the language of a
contract is ambiguous is . . . a question of law. We review
a circuit court’s decision regarding an equitable remedy
under the abuse of discretion standard.
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Ziegler Furniture and Funeral Home, Inc. v. Cicmanec, 2006 SD 6, ¶14, 709 NW2d

350, 354 (internal citations omitted).

ANALYSIS AND DECISION

[¶18.] 1. Whether the circuit court erred in concluding
that the Fall 2000 conversation between Boke
and Timothy did not constitute an enforceable
contract modifying the terms of the July 1982
written easement.

[¶19.] Vander Heides argue that there was a clear expression of Timothy’s

agreement to forbear from objecting to Boke’s rezoning application in exchange for

his agreement not to use that portion of the roadway on Vander Heides’ property for

Boke development ingress and egress. However, the circuit court concluded in its

memorandum decision, incorporated by reference in its findings of fact and

conclusions of law, that the Fall 2000 discussion between Timothy and Boke did not

contain a sufficient agreement and understanding between the parties to constitute

a modification of the written agreement.

[¶20.] “An agreement is the result of a mutual assent of two parties to certain

terms, and, if it be clear that there is no consensus, what may have been written or

said becomes immaterial.” Geraets v. Halter, 1999 SD 11, ¶16, 588 NW2d 231, 234

(quoting Watters v. Lincoln, 29 SD 98, 100, 135 NW 712, 713 (1912) (citation

omitted)). “There must be mutual assent or a meeting of the minds on all essential

elements or terms in order to form a binding contract.” Read v. McKennan Hosp.,

2000 SD 66, ¶23, 610 NW2d 782, 786 (citations omitted). Whether there is mutual

assent is a fact question determined by the words and actions of the parties. Id.

¶25 (citation omitted).

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[¶21.] Consent is an essential element of a contract. SDCL 53-1-2(2).

“Consent must be free, mutual and communicated.” Richter v. Industrial Finance

Co. Inc., 88 SD 466, 472, 221 NW2d 31, 35 (1974) (citing SDCL 53-3-1). “Consent is

not mutual unless the parties all agree upon the same thing in the same sense.”

SDCL 53-3-3. The existence of mutual consent is determined by considering the

parties’ words and actions. In re Estate of Neiswender, 2003 SD 50, ¶20, 660 NW2d

249, 253 (citing Coffee Cup Fuel Stops v. Donnelly, 1999 SD 46, 592 NW2d 924).

[¶22.] In this case, the parties’ conflicting testimony, as to their respective

understandings about the purpose and result of the Fall 2000 discussion between

Boke and Timothy, is sufficient to support the circuit court’s determination that no

oral agreement was reached. According to Timothy there was a quid pro quo in that

he agreed to forbear from objecting to Boke’s rezoning application in exchange for

an agreement to modify the easement such that traffic from Boke’s development

would not utilize that portion of the roadway on Vander Heides’ property. However,

Boke indicated that no such agreement was discussed and that Timothy expressed

no intention to object to the rezoning application. According to Boke, the two

merely met so that he could explain the development plan and his intent to exit

traffic to the west as well as answer any questions that Timothy might have.

Timothy also indicated his understanding that the intent to limit development

traffic was a one-way restriction upon Boke, while Boke stated during his deposition

testimony that he believed Vander Heides would reciprocate by routing any traffic

originating from their property over their portion of the roadway. Boke, a real

estate agent, further evinced his understanding that there was no agreement when

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he indicated that it was his practice to commit to writing any agreement involving

real estate, which in this case was not done.

[¶23.] The parties’ actions also support the circuit court’s determination. The

concerns about the development plan that Timothy expressed during his meeting

with Boke were limited to traffic and creek-flow issues. Boke later installed locking

gates across the roadway on Boke’s property. Subsequently, in his February 13,

2006 affidavit, Timothy asserted additional conditions to his alleged agreement to

forbear objecting to Boke’s rezoning application. Timothy alleged in the affidavit

that the traffic and creek-flow conditions were “not by way of limitation” on further

conditions and that there were “other conditions not specifically set forth” therein.

Still, Timothy goes on to allege in the affidavit that one of these conditions involved

Boke’s agreement not to install locking gates across the roadway. No evidence was

presented to the circuit court as to what the other conditions consisted of nor did

Boke express any knowledge as to other concerns that Timothy may have had

beyond traffic and the creek.

[¶24.] There was evidentiary support to find that no meeting of the minds or

consensus as to the alleged oral agreement was ever demonstrated in the words and

actions of Boke and Timothy. In this regard, the essential contract element of

consent was missing. Consequently, there was a sufficient basis for the circuit

court to determine that there was no oral agreement to modify the written

easement.

[¶25.] Moreover, had Boke and Timothy consummated an oral agreement, it

would have been subject to the statute of frauds. Under the statute of frauds, “[a]n

agreement for the sale of real estate or an interest therein” is not enforceable unless
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the contract is in writing and signed by the party to be charged or his duly

authorized agent. SDCL 53-8-2(3). An easement is an interest in land subject to

the statute of frauds. Spawn v. South Dakota Cent. Ry. Co., 26 SD 1, 127 NW 648,

649 (1910); see also Picardi v. Zimmiond, 2004 SD 125, ¶16, 689 NW2d 886, 890

(citing Knight v. Madison, 2001 SD 120, ¶4, 634 NW2d 540, 542 (quoting Gilbert v.

KTI, Inc., 765 SW2d 289, 293 (MoApp 1988))). A contract subject to the statute of

frauds cannot be modified by oral agreement. Rooney v. Dayton-Hudson Corp., 246

NW2d 170, 175 (Minn 1976) (citing Scheerschmidt v Smith, 77 NW 34 (Minn 1898)).

[¶26.] Vander Heides read SDCL 53-8-2(3) to mean that the 1982 written

easement agreement is not subject to the statute of frauds because the original

parties to the easement acquired their respective dominant tenements through

mutual grant rather than purchase by “sale” in exchange for money, as that term in

the statute is frequently used. However, we are unconvinced by this rationale. We

see no reason to distinguish an easement granted in exchange for money from one

granted in exchange for any other kind of lawful consideration.

[¶27.] Alternatively, Vander Heides argue that the 1982 easement is removed

from the purview of the statute of frauds by the equitable doctrine of promissory

estoppel because they forbore from objecting to Boke’s rezoning application in

reliance on his promise not to use the roadway on the Vander Heide property for

development ingress and egress. See Jacobson v. Gulbransen, 2001 SD 33, ¶26, 623

NW2d 84, 91 (citations omitted) (recognizing that an agreement otherwise subject

to the statute of frauds is removed therefrom by promissory estoppel when one

relies to his detriment on an unfulfilled oral promise).

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[¶28.] “To apply the doctrine of promissory estoppel, the [circuit] court must

find: 1) the detriment suffered in reliance must be substantial in an economic

sense; 2) the loss to the promisee must have been foreseeable by the promisor; and

3) the promisee must have acted reasonably in justifiable reliance on the promise

made.” Garrett v. Bank West, Inc., 459 NW2d 833, 848 (SD 1990) (citing Minor v.

Sully Buttes School Dist. No. 58-2, 345 NW2d 48, 51 (SD 1984)). Promissory

estoppel is not applicable if any of these elements are lacking or have not been

proven by clear and convincing evidence. Hahne v. Burr, 2005 SD 108, ¶18, 705

NW2d 867, 873 (citing Century 21 Associated Realty v. Hoffman, 503 NW2d 861,

866 (SD 1993) (citations omitted)).

[¶29.] The record does not reveal that Vander Heides ever submitted

evidence of a substantial economic detriment to the circuit court. The foregoing

analysis reveals that, short of a promise, Boke merely expressed intent not to use

the roadway on Vander Heides’ property for development ingress and egress.

Further, Timothy’s February 13, 2006 affidavit belies the existence of a promise

because there was no meeting of the minds. In the affidavit, Timothy alleges

conditions beyond those involving traffic and the creek, from which he originally

claimed the basis of an oral agreement with Boke was formed. 3

3. The circuit court found that Timothy is an attorney “experienced in
handling real estate transactions.” Boke contends that as such, he
should be held to a higher standard of care in the conduct of his
personal business activities. See Columbus Trade Exchange, Inc. v.
AMCA Intern. Corp., 763 FSupp 946, 956 (SDOhio 1991) (opining that
businesses represented by experienced businessmen should be held to a
higher standard in requiring compliance with the statute of frauds and
that when parties have extensive business experience they should be
(continued . . .)
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[¶30.] Vander Heides’ alleged reliance was not in anyway justified given the

absence of a promise or at best, one that was vague and uncertain. See Werner v.

Norwest Bank South Dakota N.A., 499 NW2d 138, 141-42 (SD 1993) (holding that

the agreement, to receive a loan in excess of $60,000 upon which the bank’s

customer relied was too vague and uncertain to support an estoppel claim where the

bank’s loan officer responded by saying “no problem” to the customer’s oral

statement estimating a need of $60,000-$80,000). Since Vander Heides’ promissory-

estoppel argument fails, the 1982 written easement is not removed from the statute

of frauds. Therefore, it could not have been modified by oral agreement even if one

had been accomplished.

[¶31.] The circuit court also found that Timothy did not acquire an ownership

interest in the Vander Heide property until three years after his Fall 2000

discussion with Boke. Therein, the court concluded that, in any case, Timothy had

no power to enter into an agreement modifying the easement without some showing

of proper authority, of which no evidence was presented. See Axtell v. Mueller, 44

SD 220, 183 NW 133, 133 (1921) (holding that a real estate transaction subject to

the statute of frauds was invalid when executed by seller’s agent without proper

authority). See also SDCL 43-13-4 (a servitude can be created only by one who has

a vested estate in the servient tenement).

________________________
(. . . continued)
required to exercise a greater degree of care in their business practices
than to merely seal an alleged deal with a handshake). Since Vander
Heides failed to satisfy the basic requirements of establishing promissory
estoppel, we find it unnecessary to address this additional issue
concerning attorneys and leave it for another day.

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[¶32.] As yet another alternative, Vander Heides argue that promissory

estoppel can also be invoked to salvage its claim in spite of Timothy’s lack of

authority in 2000 to enter into an agreement to modify the easement. They aver

that application of the equitable remedy is justified in this regard, not to compel

enforcement of the alleged oral agreement on the basis that Vander Heides forbore

objecting to the rezoning application in reliance on Boke’s alleged promise, but

rather on the basis that Timothy forbore a personal right to attend the rezoning

hearing in reliance on the same promise. Based on our foregoing analysis as to the

efficacy of promissory estoppel, we conclude there is no justification in its

application to this set of facts.

[¶33.] 2. Whether the circuit court erred when it determined
that a portion of the easement was located on
Vander Heides’ property beyond the confines
of the original county roadway.

[¶34.] A question as to the location of the easement over a portion of Vander

Heides’ property arose out of the dispute over the alleged oral modification. A creek

intersected the roadway near Vander Heides’ residence. There had originally been

a bridge over the creek, but it had been washed out. Consequently, the route over

the creek is by way of a deviation from the roadway around the washout. The

deviation passes over Vander Heides’ property near the front yard of their

residence. According to Dwaine Dodds (Dwaine), Boke’s predecessor in interest who

had acquired that property in or around 1957, the bridge had washed out some time

during the late 1940s or early 1950s. Dwaine testified at trial that since then the

route over the creek has always been by way of the deviation.

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[¶35.] While the 1982 easement provides that Dodds and Vander Heides’

predecessor in interest, Mitchell, intended to retain a mutual easement following

the “established right-of-way and road,” section (1) of the agreement also provides

that Mitchell grants a perpetual easement running with the land for use of the

“present roadway” across the Mitchell property. See supra note 1. Dwaine testified

that prior to 1982, Mitchells had “supplied a gate and allowed us to go down

through their property to get on the road on the other side of the wash.” Dwaine

also indicated that at the time he and Mitchell signed the easement it was their

intent that the deviation be included in the easement.

[¶36.] The circuit court found that the route over the creek was by way of the

deviation and in applying rules of contract construction concluded that the

deviation was included as part of the “present roadway” as provided in the 1982

easement. Vander Heides argue that the 1982 easement is unambiguous and clear

on its face and that the easement extends over the roadway within the original

county right-of-way with no deviation. Vander Heides thus aver it was error for the

circuit court to consider parole evidence in determining the intent of the parties as

to the location of the easement at the time it was executed. We disagree.

[¶37.] In reviewing provisions of the easement, we must first determine

whether it is ambiguous as to location. When contract language is unambiguous,

extrinsic evidence is not considered because the intent of the parties can be derived

from within the four corners of the contract. Spring Brook Acres Water Users

Ass’n, Inc. v. George, 505 NW2d 778, 780 n2 (SD 1993) (citation omitted). However,

when the language is ambiguous, we may go beyond the four corners to ascertain

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the intent of the parties. AFSCME LOCAL 1922 v. State, 444 NW2d 10, 12 (SD

1989).

A contract is not rendered ambiguous simply because the
parties do not agree on its proper construction or their
intent upon executing the contract. Rather, a contract is
ambiguous only when it is capable of more than one
meaning when viewed objectively by a reasonably
intelligent person who has examined the context of the
entire integrated agreement.

Pesicka v. Pesicka, 2000 SD 137, ¶10, 618 NW2d 725, 727 (quoting Singpiel v.

Morris, 1998 SD 86, ¶16, 582 NW2d 715, 719 (citations omitted)).

[¶38.] In this case, the language of the easement is ambiguous as to location

because viewed within its four corners the agreement is subject to more than one

interpretation. Since the terminology that reserves an easement following the

established right-of-way and road is ambiguous when juxtaposed with that which

provides for the perpetual use of the present roadway, we must go beyond the

agreement to determine the intent of the parties at the time the easement was

executed. Therefore, in light of the testimony of Dwaine, an original party to the

easement, we find no error in the circuit court’s finding that the easement includes

the deviation. 4

4. Moreover, we have long held that a party is charged with inquiry notice of an
easement when ordinary diligence would have revealed its existence.
See Picardi, 2004 SD 125, 689 NW2d 886; Tan Corp. v. Johnson, 555 NW2d
613 (SD 1996); Peterson v. Beck, 537 NW2d 375 (SD 1995);
Townsend v. Yankton Super 8 Motel, Inc., 371 NW2d 162 (SD 1985);
Steele v. Pfeifer, 310 NW2d 782 (SD 1981); Wiege v. Knock, 293 NW2d 146
(SD 1980).

Here, there can be no question that when Ruth acquired the Mitchell
property, she had knowledge that it was the deviation that afforded users of
(continued . . .)
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[¶39.] 3. Whether the circuit court erred by concluding
that Benders’ graveling of the roadway over Boke’s
property did not constitute an improper expansion
of the easement.

[¶40.] Boke argues that Benders’ graveling of the roadway constituted an

improper expansion of the easement in that the gravel surface, when finished,

extended beyond the allowed width and that the graveling operation in general was

not permissible maintenance, but rather impermissible as an improvement. The

circuit court concluded that Benders’ graveling of the roadway did not constitute an

improper expansion on either the question of width or improvement. Since the

easement is silent as to both questions we may go beyond the four corners of the

agreement to determine what it allows. AFSCME LOCAL 1922, 444 NW2d at 12

(recognizing that when contract language is ambiguous, and does not speak to a

subject it would normally be expected to, the court may go beyond the four corners

of the contract).

Width of the Easement

[¶41.] “An easement by grant does not require a definite statement as to

width, dimensions, or exact location. The extent of an easement by grant can be

ascertained either by the words clearly expressed, or by just and sound construction

________________________
(. . . continued)
the roadway a route across the creek, and not a daredevil jump from one
bridge abutment to the other. The roadway was used to access the property
owned by the Mitchells. The bridge washed out at least 35 years prior to
Ruth’s acquisition of the property. As Dwaine testified, the deviation had
been the only way to ford the creek since that time.

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of the easement document.” Picardi, 2004 SD 125, ¶16, 689 NW2d at 890 (citations

omitted).

[¶42.] Dwaine testified that while the easement provides that it follows the

roadway located within the right-of-way vacated by the county, the intent of the

parties was that its width would be confined to the roadway itself. According to

Dwaine, the roadway was 12-14 feet wide. He established this width by explaining

that it was the same as the width of the gates that he and Mitchell had placed

across the roadway. Dwaine stated that the roadway was not wide enough for two

vehicles to pass. He went on further to state that it was just wide enough for the

Mitchell’s “old Army 6x6” that could just pass through the gates.

[¶43.] Marjorie Bender testified at the trial that a contractor was hired to lay

the gravel. She stated that she and her husband wanted to keep the gravel “within

the existing area.” With that in mind, they asked the contractor to put down two

inches of gravel, 10-12 feet wide. Marjorie stated that the charge for the gravel was

accordingly based on those dimensions.

[¶44.] The circuit court concluded that the easement was 12-14 feet wide. Its

conclusion is supported by its determination, based on the testimony at trial, that

the roadway is also 12-14 feet wide. The circuit court then further determined that

Benders did not widen the roadway. This determination is not clearly erroneous

given Marjorie’s testimony that they paid for a 10-12 foot wide swath of gravel.

Accordingly, we find no error with the circuit court’s determination that Benders

did not expand the easement as to width.

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Maintenance of the Easement

[¶45.] Our Legislature has set out that “[t]he extent of a servitude is

determined by the terms of the grant, or the nature of the enjoyment by which it

was acquired.” SDCL 43-13-5. This Court has held that the following principle is

implicit in this statute:

the holder of a private easement has the right to limited use
or enjoyment of the property only if it is consistent with the
general use of the property by the owner, and “neither the
physical size nor the purpose or use to which an easement
may be put can be expanded or enlarged beyond the terms
of the grant of the easement.”

Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 SD 82, ¶27, 700 NW2d 729,

736 (quoting Selway Homeowners Ass’n v. Cummings, 2003 SD 11, ¶28, 657 NW2d

307, 315); see also Knight, 2001 SD 120, ¶6, 634 NW2d at 542. In that regard, this

Court has concluded that the expansion of an easement beyond the terms of the

grant is an undue interference with the reserved rights of the grantor. Picardi,

2004 SD 125, ¶21, 689 NW2d at 892 (citation omitted).

[¶46.] Roads deteriorate over time due to the elements and stress of use.

When maintenance or repair are necessary in order for the dominant tenement

owner to retain the enjoyment of his estate, he may enter upon the servient

tenement to perform such maintenance and repair, while in the process doing no

unnecessary injury to the servient estate. Nixon v. Welch, 24 NW2d 476, 481 (Iowa

1947) (holding that the dominant tenement owner had a right to enter onto the

servient tenement to clear a drainage ditch where it had an easement that

permitted it to drain surface water onto the servient tenement); Laden v. Atkeson,

116 P2d 881, 885-86 (Mont 1941) (affirming an award to the dominant tenement

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owner of a ditch right of a designated route across the servient tenement and

sufficient amount of land near the head of the ditch so as to accommodate necessary

maintenance and that said route and land constituted a “secondary easement”

implicit in the primary easement that established the ditch right); Sullivan v.

Donohoe, 191 NE 364, 365 (Mass 1934) (holding that the defendant was entitled to

take a sufficient amount of the plaintiff’s property to conduct repairs and preserve

an easement); compare Guthrie v. Hardy, 28 P3d 467, 477 (Mont 2001) (affirming

the order below enjoining the dominant tenement owner from using its easement for

all but ingress and egress since maintenance was performed in a manner that

imposed an undue burden upon servient estate).

[¶47.] Benders purchased the west 200 acres of Vander Heides’ property with

the intention of building a home. The roadway on Boke’s property, which by

easement afforded them ingress and egress had, according to Dwaine, been graveled

by the county prior to 1982 when it was vacated. However, as Boke, Timothy and

Dwaine testified, over the years the roadway had fallen into a state of disrepair

becoming little more than a grass-grown, two-wheel path.

[¶48.] Benders knew that they would be traveling the roadway on a regular

basis. Moreover, construction and utility workers, as Benders’ invitees, would be

traveling back and forth with their equipment between the construction site and the

public right-of-way. In order to make the easement safe and usable for the purpose

that it was intended, Benders reapplied gravel to the roadway. Boke, now claims

that applying gravel to the road constituted an impermissible improvement and

expansion of the easement.

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[¶49.] This claim is without merit. Benders had a right to put the easement

into a condition that would enable them to retain the enjoyment for which it was

intended and provide safe passage to those invitees to whom they authorized access.

However, that does not extend to further improvements or to allow public access

which were never contemplated by the terms of the easement nor agreed to by the

grantor. Boke offers no evidence to show how its reservation was burdened or

injured by the graveling. 5 Since Boke’s reservation in the servient estate was not

infringed upon in any way, we conclude that the graveling of the roadway by

Benders was a reasonable and permissible maintenance of the easement and that

the circuit court did not err in concluding as much.

[¶50.] 4. Whether the circuit court erred when it concluded
that the terms of the easement permitted Boke
to install gates across that portion of the roadway
on his property, but that he was only entitled to
lock the west gate, located between Boke’s property
and the public right-of-way.

[¶51.] Since the 1982 easement is unambiguous as to this issue and clear on

its face, our review of same is limited to the plain meaning of the pertinent

language within its four corners. See Spring Brook Acres Water Users Ass’n, Inc.,

505 NW2d at 780 n2.

[¶52.] The pertinent section of the easement provides:

That the parties, by the execution of this mutual easement,
intend to restrict future travel along said roadway and to that
extent gates may be placed on the respective properties, provided
however, that if such gates are locked by any grantor,

5. Contrary to a burden, it seems as though it would be a benefit considering
that Boke himself was planning on using the same stretch of roadway to
provide ingress and egress for his own 32 parcel development.

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such grantor shall be obligated to provide the grantee with
the means of opening such gates for their private use in traveling
along said roadway covered by these mutual easements.

(Emphasis added.)

[¶53.] The provision places no restriction on the number or location of gates

that either party may install on their respective properties. A landowner retains

the right to construct a gate unless he or she “explicitly give[s] this right away.”

Block v. Drake, 2004 SD 72, ¶25, 681 NW2d 460, 467. However, the landowner

must not unreasonably “interfere with the use or enjoyment of the easement.” Id.

¶22 (citing Knight, 2001 SD 120, ¶7, 634 NW2d at 543). Here, as a matter of law,

the only limitation on Boke’s right, as the servient tenement owner, to place locking

gates on his property is the extent to which the language of the easement granted

that right away to the dominant tenement owners, or any subsequent action by

Boke that unreasonably infringed on the ability of the Benders and Vander Heides,

as dominant tenement owners, to use and enjoy the easement in conformity

therewith. See Stanga v. Husman, 2005 SD 36, ¶9, 694 NW2d 716, 718 (citations

omitted). The language in the easement evinces the parties’ contemplation as to

whether “such gates are locked by any grantor” without limitation. (Emphasis

added). In addition, the easement provides that a means of access be made

available to the other party as dominant tenement owner in the event locking gates

are installed. Therefore, it is clear that the parties to the easement intended that

all gates could be locked as this right was retained by the landowner and not

conveyed away in the easement.

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[¶54.] We agree with the circuit court’s finding that one of the justifications

for Boke’s placement of gates is that livestock can be pastured on its property. See

Knight, 2001 SD 120, ¶7, 634 NW2d at 543 (holding that unless the servient

tenement owner expressly agrees otherwise, he reserves the right to use his

property for any purpose that does not unreasonably infringe upon the dominant

tenement owner’s use and enjoyment of the easement). However, we find no

support for its conclusion that some gates can be locked while others cannot.

“[G]ates may serve a multitude of valuable purposes.” Block, 2004 SD 72, ¶25, 681

NW2d at 467. In this instance, gates keep cattle in and the public out. We conclude

that the easement unambiguously provides that all gates that Boke places on his

property can be locked and that the only limitation on the number and placement

is, as a matter of law, the right of the Benders and Vander Heides to use and enjoy

the easement. Since Boke provided the Benders and Vander Heides a means of

accessing the gates in question, we find no infringement upon that right under the

circumstances. For the foregoing reasons we reverse this issue.

[¶55.] Affirmed in part and reversed in part.

[¶56.] KONENKAMP and MEIERHENRY, Justices, and MILLER, Retired

Justice, concur.

[¶57.] ZINTER, Justice, concurs with a writing.

[¶58.] MILLER, Retired Justice, sitting for SABERS, Justice, disqualified.

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ZINTER, Justice (concurring).

[¶59.] I concur, except that on Issue 1, I would go no further than to hold that

the evidence overwhelmingly established that no oral agreement had been reached

modifying the terms of the easement.

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