Rotenberger v. Burghduff

#24143-a-RWS

2007 SD 19

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

WILLIAM ROTENBERGER, Plaintiff and Appellee,

v.

LEX BURGHDUFF, Defendant and Appellant.

* * * *

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

* * * *

HONORABLE JOHN W. BASTIAN
Judge

* * * *

ROGER A. TELLINGHUISEN of
Tellinghuisen & Gordon
Spearfish, South Dakota Attorneys for plaintiff
and appellee.

ROBERT M. NASH of
Wilson, Olson & Nash
Rapid City, South Dakota Attorneys for defendant
and appellant.

* * * *
CONSIDERED ON BRIEFS
ON JANUARY 8, 2007

OPINION FILED 02/28/07
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SABERS, Justice

[¶1.] Lex Burghduff (Burghduff) appeals from a circuit court decision that

declared William Rotenberger (Rotenberger) had a prescriptive easement across

Burghduff’s property. He appeals and raises two issues. We affirm.

FACTS

[¶2.] Rotenberger owns two parcels of property 1 in Harding County, which

are separated by an 80-acre parcel 2 owned by Burghduff. Rotenberger bought the

land in 1984 from Neil Ketchum (Ketchum). While Ketchum owned the land, he

used a trail 3 that runs over Burghduff’s land to access his land. He used the trail

from 1943 or 1944 to 1984. From 1984 until 2001, Rotenberger used that trail to

access his land. In 2001, Rotenberger could no longer use the trail because

Burghduff padlocked the gate shut. According to Burghduff, he padlocked the gate

because Rotenberger ran over and killed two calves while using the trail.

Rotenberger asked Burghduff to remove the padlock so he could use the trail, but

Burghduff refused.

[¶3.] Rotenberger sought a declaratory judgment that he held a

prescriptive easement over Burghduff’s land and an injunction preventing

1. The property is located in Harding County, South Dakota, Township 21
North, Range 6 East, BHM described as:
Section 6: All
Section 7: S1/2 NE1/4 and N1/2 SE1/4

2. Burghduff’s property is located in Section 7 and is described as: N1/2 NE1/4,
Section 7, T21N, R6E, BHM, Harding County, South Dakota.

3. The trail was used by stagecoaches and is known as the “Old Stagebrush
Road.”

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Burghduff from interfering with his use of the easement. This action was dismissed

for lack of prosecution under SDCL 15-15-11. After the circuit court vacated the

dismissal and entered an order of dismissal nunc pro tunc, making the dismissal

without prejudice, Burghduff appealed and that appeal was recently decided. See

Rotenberger v. Burghduff, 2007 SD 7, 727 NW2d 291 (Rotenberger I).

[¶4.] On July 18, 2005, Rotenberger again sued Burghduff, alleging he had a

prescriptive easement and requesting an injunction that prohibited Burghduff from

interfering with his use of the easement. Both parties filed motions for summary

judgment, relying on their respective affidavits, the pleadings and the deposition of

Ketchum. The circuit court granted Rotenberger’s summary judgment motion.

[¶5.] Burghduff appeals raising the following two issues:4

1. Whether the trial court erred in granting summary judgment when
it concluded that a prescriptive easement existed in favor of
Rotenberger.

2. Whether Rotenberger was required to commence his prescriptive
easement action within one year after Burghduff denied access
across his property under SDCL 15-3-3.

STANDARD OF REVIEW

[¶6.] This Court’s review of a summary judgment grant is well settled:

Summary judgment shall be granted “if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of
law.” We will affirm only when there are no genuine
issues of material fact and the legal questions have been

4. Burghduff raises five issues in this appeal. The first three issues were raised
and decided in Rotenberger I, 2007 SD 7, 727 NW2d 291. This appeal
addresses the remaining two issues.

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correctly decided. All reasonable inferences drawn from
the facts must be viewed in favor of the nonmoving party.
The burden is on the moving party to clearly show an
absence of any genuine issue of material fact and an
entitlement to judgment as a matter of law. On the other
hand, “the party opposing a motion for summary
judgment must be diligent in resisting the motion, and
mere general allegations and denials which do not set
forth specific facts will not prevent issuance of a
judgment.”

Myears v. Charles Mix County, 1997 SD 89, ¶6, 566 NW2d 470, 472 (citing Ward v.

Lange, 1996 SD 113, ¶10, 553 NW2d 246, 249) (internal citations omitted).

[¶7.] 1. Whether the circuit court erred in granting summary
judgment when it concluded that a prescriptive easement
existed in favor of Rotenberger.

[¶8.] A party claiming the existence of a prescriptive easement must meet a

two-part test by clear and convincing evidence. Rancour v. Golden Reward Mining

Co., 2005 SD 28, ¶7, 694 NW2d 51, 53-54 (citing Thompson v. E.I.G. Palace Mall,

L.L.C., 2003 SD 12, ¶6, 657 NW2d 300, 303-04). First, the party must show “an

open, continued, and unmolested use of the land in the possession of another for the

statutory period . . . of 20 years.” 5 Id. Second, the party claiming a prescriptive

easement must show the property is being used “in a manner that is hostile or

adverse to the owner.” Id. In order to satisfy the adverse or hostile requirement,

the use must be to the “physical exclusion of all others under a claim of right.”

Thompson, 2003 SD 12, ¶7, 657 NW2d at 304.

5. “Possession of successive occupants . . . can be tacked together to make up the
required continuity.” Shippy v. Hollopeter, 304 NW2d 118, 121 n2 (SD 1981).

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[¶9.] A prima facie case for a prescriptive easement is established “by

showing an open and continuous use of another’s land with the owner’s knowledge,

creating a presumption that such use is adverse and under a claim of right.” Id. ¶8

(citing Kougl v. Curry, 73 SD 427, 432, 44 NW2d 114, 117 (1950)). Once

established, a presumption of a prescriptive easement is created “from the proof of

an uninterrupted adverse use for the prescriptive period.” Id. That presumption

“may be rebutted by proof that the use was by permission or not under a claim of

right.” Id.

[¶10.] Rotenberger used the trail from 1984 until Burghduff blocked his

access in 2001. These seventeen years do not meet the statutory prescriptive

period. However, Rotenberger’s predecessor, Ketchum, testified he used this trail to

access his land from 1943 or 1944 to 1984. Ketchum testified he never received

permission from Burghduff’s predecessor to use the trail. 6 This forty or forty-one

year period where Ketchum used the trail with the neighbor’s knowledge creates a

6. Q: Okay. And did you ever have any discussions with the owners of the
80 acres that you crossed to get to this quarter about using this trail or this
road to get to it? Did they ever say anything to you?

A: No sir. Because they trailed across me, and I trailed across them, and
I got along with my neighbors. And that’s just the way it was. In fact, when
we come out of the forest, we gathered the cattle and [worked] them in my
pasture and they trailed them across mine. So we trailed back and forth, and
there was never any problems.

Q: So there was never any discussion about using that road?

A: No.

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presumption that a prescriptive easement exists since the land was used for more

than twenty years without interruption.

[¶11.] Rotenberger, as the moving party, has the burden of demonstrating no

genuine issues of material facts exist. Burghduff must diligently resist the motion

and “mere general allegations and denials which do not set forth specific facts will

not prevent issuance of a judgment.” Myears, 1997 SD 89, ¶6, 566 NW2d at 472.

Burghduff has not put forth any specific facts that show that Ketchum received

permission to use the trail. There are no material facts in dispute that

Rotenberger’s predecessor fulfilled the requirements for a prescriptive easement,

which existed when Rotenberger purchased the land. See Kokesh v. Running, 2002

SD 126, ¶16 n2, 652 NW2d 790, 794-95 n2.

[¶12.] Burghduff alleges that he “consented to and allowed” Rotenberger to

use the trail until 2001, 7 therefore, the “hostile or adverse” elements could not be

fulfilled. The circuit court noted he did not show any evidence he granted

Rotenberger “permission” to use the trail. Instead, the circuit court noted the

doctrine of acquiescence, found in adverse possession law, 8 could be used to

demonstrate the adverse or hostile requirement in prescriptive easements. It is

7. Burghduff’s answer claims he blocked Rotenberger’s access to the property in
1994. However, in his brief, Burghduff concedes Rotenberger was allowed to
cross the land undisturbed until 2001. Brief for Appellant at 15, Rotenberger
v. Burghduff, 2007 SD 19, 729 NW2d 175 (Rotenberger II).

8. Essentially a claim for a prescriptive easement is similar to a claim of
ownership by adverse possession, except in a prescriptive easement claim,
the claimant only receives the easement, not the land title. Thompson, 2003
SD 12, ¶7, 657 NW2d at 304.

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undisputed that Burghduff had knowledge of Rotenberger’s use of the trail and did

not prevent him from using it. “When such acquiescence continues during the

statutory period prescribed as a bar to reentry, title may be acquired through

acquiescence alone.” City of Deadwood v. Summit, Inc., 2000 SD 29, ¶22, 607 NW2d

22, 28 (citing Lehman v. Smith, 40 SD 556, 168 NW 857, 859 (1918)).

[¶13.] The forty-one years Ketchum used the trail can be “tacked” to the time

Rotenberger used the trail unimpeded by Burghduff. See Shippy, 304 NW2d at 121

n2. There are no genuine issues of material fact that the trail was used in “an open,

continued, and unmolested . . . manner that is hostile or adverse” in excess of the

prescriptive period of twenty years. Therefore, Burghduff is not entitled to

summary judgment and Rotenberger is entitled to summary judgment.

[¶14.] 2. Whether Rotenberger was required to commence his
prescriptive easement action within one year after
Burghduff denied access across his property under SDCL
15-3-3.

[¶15.] Burghduff alleges Rotenberger had one year from the time he

prevented Rotenberger from using the trail to commence his declaratory action. He

bases this claim on SDCL 15-3-3, limitation of actions based on entry on real estate:

No entry upon real estate shall be deemed sufficient or
valid as a claim unless an action be commenced thereupon
within one year after the making of such entry, and
within 20 years from the time when the right to make
such entry descended or accrued.

Since its codification in 1939, our Court has only discussed the statute in one case.

See Johnson v. Bigelmeier, 409 NW2d 379, 381 n1 (SD 1987).

[¶16.] In Johnson, the statute was found inapplicable where a party was

granted 2.43 acres of neighboring land by adverse possession. 409 NW2d at 381.

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The plaintiff alleged the defendant had to file a claim within one year after

occupying the land. Id. In rejecting that claim it was noted that “[a]dverse

possession occurs by operation of law and does not require an action to commence it,

nor to continue it.” Id. at 382. Furthermore, the Court noted that the term “entry”

is not defined and did not go on to define it, but rather it explained that “reading

the statute as [the plaintiff] would have us do, it would be antithetical to the

statutory provisions for title by adverse possession.” Id.

[¶17.] Similarly, it would be antithetical to adverse possession law to

interpret the statute as advocated by Burghduff. Under his theory, a person

claiming title by adverse possession would have one year from the time of entry to

bring an action or have twenty years from the time a right to make such entry

descended or accrued. There are two problems with this interpretation. First, this

interpretation would require a claimant to go to court before his claim had even

ripened, as the twenty year statutory period would not be fulfilled. Second, a

claimant does not have a “right to make such entry” and need not have a “right to

make such entry” in order to start the adverse possession time period.

[¶18.] Other courts have interpreted statutes that are identical to SDCL 15-

3-3. 9 Their interpretations do not support Burghduff’s argument. In Brockman v.

Brandenburg, a Wisconsin court found the “entry” mentioned in an identical

9. North Dakota has an identical statute. NDCC 28-01-06. The North Dakota
Supreme Court has cited the statute in one case, but did not interpret it. See
Nelsen v. Christiansen, 343 NW2d 375, 377 (ND 1984).

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Wisconsin statute 10 meant an entry constituting an interruption of the adverse

possession. 197 Wis 51, 221 NW 397, 398 (1928). In Brockman, the plaintiff (land

owner) did not bring an action within one year of his entry, so he could not argue

that his entry upon the disputed land to build a fence interrupted the adverse

possession. Id. (noting that before an “entry constitutes an interruption of the

adverse possession” plaintiff must “commence an action within one year after such

entry”).

[¶19.] In Adams v. Rockwell, Senator Maison, writing for the Court for the

Correction of Errors of New York reaches a similar result. He noted the statute

gave “Adams the right to commence his action for the recovery of his land within 20

years from the time his right accrues . . . .” 16 Wend. 285, Lock. Rev. Cas. 16

(1836). He went on to note that a land owner has twenty years to take his land

back from someone attempting to establish adverse possession.

[¶20.] The cases demonstrate that the statute means the land owner

threatened with losing his land to adverse possession has one year to commence an

action to establish he interrupted the adverse possession by entering the land. In

the case of a prescriptive easement claim, the land owner burdened by a potential

prescriptive easement would have to prevent the use of the easement. Then, he

would have to start an action within one year to establish he interrupted the “open

and continued use” elements of a prescriptive easement claim.

10. Wis. Stat. section 330.04.

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[¶21.] In this case, Burghduff or Burghduff’s predecessor had one year from

preventing 11 the use of the easement to commence an action. However, this statute

only applies within the twenty-year prescriptive period. Once the twenty years

have run, the claimant has a prescriptive easement and the land owner burdened

with the easement may not interrupt its usage. When Burghduff prevented

Rotenberger from using the trail in 2001, it was too late, as the twenty-year period

had already passed and the requirements for a prescriptive easement had been

fulfilled.

[¶22.] Affirmed.

[¶23.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

11. The blocking or padlocking of the gate constitutes the “entry” referred to in
SDCL 15-3-3. Burghduff brought no action within one year of “entry,” nor
“within 20 years from the time when the right to make such entry descended
or accrued.” SDCL 15-3-3.

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