DeHaven v. Hall

#24261, #24271-aff in pt, rev in pt & rem-ZINTER, Justice
2008 SD 57

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JAMES and CAROL DEHAVEN, Plaintiffs and Appellants,

v.

DON and SHERRIE HALL, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
CUSTER COUNTY, SOUTH DAKOTA

* * * *

HONORABLE MERTON B. TICE, Jr.
Judge

* * * *

PATRICK M. GINSBACH of
Farrell, Farrell & Ginsbach, PC Attorneys for plaintiffs
Hot Springs, South Dakota and appellants.

JOHN K. NOONEY of
Thomas, Nooney, Braun, Solay
& Bernard, LLP Attorneys for defendants
Rapid City, South Dakota and appellees.

* * * *

CONSIDERED ON BRIEFS
ON MAY 21, 2007

OPINION FILED 7/2/08
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ZINTER, Justice

[¶1.] James and Carol DeHaven (DeHavens) appeal from a judgment

declaring that Don and Sherrie Hall (Halls) possess a permanent right-of-way

easement over DeHavens' property, ordering Halls to reasonably maintain and

repair the easement, and granting DeHavens $2,358 in damages as well as taxation

of disbursements. Halls filed a notice of review. We affirm in part, reverse in part,

and remand.

[¶2.] DeHavens and Halls owned adjacent tracts of land in Custer County,

South Dakota. In 1992, DeHavens' predecessor in interest granted Halls a thirty-

foot easement across DeHavens' property for purposes of ingress and egress. The

easement provided:

For purposes of ingress and egress, Grantors hereby grant
to Grantees a permanent easement, 30' wide. . . . . Said
roadway or access right-of-way shall be maintained by
GRANTEES and no person or persons shall interfere with
GRANTEES' benefit of the easement hereinbefore
described. . . .

Halls used the easement for access to their home on a daily basis since 1992. The

easement was also used for access to DeHavens' home, as well as access to property

owned by James Wirth and Ted Schenk.

[¶3.] Two healthy mature pine trees marked the entrance to the roadway on

the easement, which was initially a "two-track" trail. The traveled portion of the

roadway was approximately fourteen feet wide. One of the pine trees was within

the thirty-foot easement on DeHavens' property, seventeen feet from the easement's

west boundary. The other tree was on James Wirth's property and outside the

easement. A wire gate was strung between the two trees to confine horses. From
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the gate there was a very sharp angle onto the easement roadway that led to

DeHavens' home and then to Halls' home.

[¶4.] Since 1992, the Halls graveled, bladed, and plowed snow from the road.

In 1998, however, when DeHavens built their home, they improved the roadway

from the gate to their driveway. They removed the road grade, ditched the north

side of the road, installed a culvert, and surfaced the road. The cost of the

improvements was $5,700. DeHavens asked Halls to share in the cost, but Halls

did not have the money to do so.

[¶5.] In 2004, DeHavens' contractor examined the easement from its

beginning to Halls' property. The portion of the road DeHavens used needed ditch

repair and some resurfacing. The condition of the next portion of the road beyond

DeHavens' driveway was considerably worse because it was never surfaced and was

"beat out" to the extent that it required Halls to drive onto DeHavens' pasture in

places to avoid ruts and mudholes. DeHavens' contractor estimated that it would

cost $9,700 to repair the entire easement roadway.

[¶6.] In August 2004, DeHavens removed the wire gate that was strung

between the two trees. They replaced it with a fourteen-foot steel gate with support

poles and rails. They placed the gate ten feet south of the pine trees.

[¶7.] In the fall of 2004, Halls listed their property for sale with a realtor.

The realtor told Halls that the realtor was having difficulty selling the property

because potential buyers had concerns about maneuvering longer horse trailers

through the entry to the easement onto the roadway. Halls ultimately negotiated a

sale agreement contingent upon establishing adequate access to their property.

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[¶8.] In early October 2004, Halls called DeHavens and complained that the

two pine trees at the entry of the easement interfered with access to the easement,

and it was difficult to pull Halls' gooseneck trailer through the steel gate due to the

angle of the turn. On December 13, 2004, Halls had the trees cut down. The trees

were left where they fell; their stumps were left sticking out of the ground.

[¶9.] On December 22, 2004, Halls' attorney advised DeHavens that the

steel gate obstructed Halls' use of the easement and if DeHavens did not remove it

within five days, Halls would remove it and charge DeHavens for the cost.

DeHavens obtained a temporary order restraining Halls from removing the gate.

The order was signed on December 28, 2004, and the original was filed on January

3, 2005.

[¶10.] On January 6, 2005, DeHavens filed this lawsuit seeking declaratory

relief and damages. A month later, on February 10, 2005, prior to trial, the parties

and their respective counsel met in order to resolve the issue of the gate. They

reached an agreement to remove the gate. DeHavens understood that in the spring

they would remove the steel gate, replace it with a wire gate, and install a thirty-

foot permanent metal gate at their property line. Halls understood that they could

remove the gate. Following the meeting, Halls, on advice of counsel, 1 removed the

gate, cut down the support poles with a chain saw, and left the gate and poles lying

in the ditch. Two days later, DeHavens installed a thirty-foot wire gate. The trial

court subsequently entered an order to show cause why Halls should not be held in

1. Counsel on appeal did not represent Halls at the trial court level.

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contempt for violating the temporary restraining order. The court, however, never

ruled on the matter.

[¶11.] Prior to trial, the court granted Halls partial summary judgment on

DeHavens' claim that the easement had been extinguished due to lack of

maintenance. It held that "the subject easement contains no express provision for

forfeiture or termination of the said easement in the event of a failure by [Halls] to

maintain said easement."

[¶12.] Following a court trial, the court entered findings of fact, conclusions of

law, and a judgment. The court concluded that: (1) Halls had a thirty-foot

easement across DeHavens' property for ingress and egress; (2) neither the tree

within the easement nor the gate, both of which Halls cut down, interfered with

Halls' reasonable use of the easement; and (3) Halls, or their successors, as a matter

of law under the grant, were responsible for reasonably maintaining the easement.

DeHavens were awarded $858 for the cost to repair the gate and support posts,

$1,500 for the value of the tree that was in the easement on DeHavens' property,

and $162.83 in disbursements.

[¶13.] DeHavens appeal raising five issues:

Whether, under the terms of the grant, Halls forfeited the
easement for failure to maintain it.

Whether, in addition to declaratory relief, DeHavens were
entitled to damages related to the maintenance of the
easement.

Whether Halls should have been held in contempt for
removing the steel gate.

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Whether DeHavens were entitled to damages to clean up
the debris from Halls cutting down the tree and damages
for the removal of the steel gate.

Whether DeHavens were entitled to additional
disbursements.

Halls filed a notice of review raising one issue:

Whether the trial court erred in awarding DeHavens any
damages for replacing the gate, damages for the value of
tree, and disbursements.

I

Extinguishment of an Easement

[¶14.] DeHavens argue that the maintenance requirement in the grant is a

condition subsequent. DeHavens therefore contend that by the terms of the grant,

Halls' easement was forfeited 2 because they failed to maintain the easement. In

granting Halls' motion for partial summary judgment, the trial court noted that

"the subject easement contains no express provision for forfeiture of said easement

in the event of a failure of [Halls] to maintain said easement." In reviewing this

summary judgment, "[w]e affirm the circuit court '[if] there are no genuine issues of

material fact and the legal questions have been correctly decided.'" Culhane v.

Western Nat. Mut. Ins. Co., 2005 SD 97, ¶ 5, 704 NW2d 287, 289 (quoting Sanford

v. Sanford, 2005 SD 34, ¶ 11, 694 NW2d 283, 287).

[¶15.] The extent of an easement "is determined by the terms of the grant, or

the nature of the enjoyment by which it was acquired." SDCL 43-13-5.

2. Technically, under South Dakota law, easements are extinguished, not
forfeited. SDCL ch 43-13. See Brown v. Hanson, 2007 SD 134, 743 NW2d
677.

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The terms and extent of an easement by grant are
ascertained either by the "words clearly expressed, or by
just and sound construction" of the easement document.
[Picardi v. Zimmiond, 2004 SD 125, ¶ 16, 689 NW2d 886,
890 (Picardi I)] (citing Cleveland v. Tinaglia, 1998 SD 91,
¶ 18, 582 NW2d 720, 724 (quoting Salmon v. Bradshaw,
84 SD 500, 505-06, 173 NW2d 281, 284 (1969))). We look
first to the language of the grant itself to discover the
extent and nature of the easement agreement and its
terms. Salmon, 84 SD at 505, 173 NW2d at 284 (citation
omitted). We review the language used by giving terms
their plain and ordinary meaning, and utilize no
additional interpretation in the absence of ambiguity. Id.
(citation omitted). If the terms of the agreement are
specific in nature, the terms are 'decisive of the limits of
the easement.' Id. (quoting 25 AmJur2d, Easements and
Licenses, § 73). We will not resolve disputes over
unambiguous language by resorting to what the parties
might have included in a contract. Wessington Springs
Educ. Ass'n v. Wessington Springs School Dist. # 36-2,
467 NW2d 101, 104 (SD 1991) (citing Raben v.
Schlottman, 77 SD 184, 190-191, 88 NW2d 205, 208
(1958)).

Picardi v. Zimmiond (Picardi II), 2005 SD 24, ¶ 20, 693 NW2d 656, 662.

Additionally, "clear language is necessary to create either a condition subsequent or

precedent. . . ." City of Huron v. Wilcox, 17 SD 625, 628, 98 NW 88, 89 (1904).

"Forfeitures and conditions subsequent not being favored in law, a deed will not be

construed to create a conditional estate unless the language used unequivocally

indicates an intention . . . to that effect." Id.

[¶16.] In Kiser v. Warner Robins Air Park Estates, Inc., 228 SE2d 795, 798

(Ga 1976), the easement provided: "Second party has the right of ingress and egress

over said private driveway provided it maintains same to prevent dust and

potholes." The servient estate owner claimed that the easement created a condition

subsequent, and that failure to maintain the easement resulted in a forfeiture. The

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Supreme Court of Georgia held that the easement had not been forfeited by a

failure of maintenance, explaining:

The breach of a condition subsequent may destroy the
party's right under the contract, or may give a right to
damages to the other party. Equity seeks to relieve
against forfeitures where the rules of construction will
allow.

The words in the contract creating a condition subsequent
do not provide for a forfeiture of the easement on failure
of performance of the condition. They specify a duty on
the owner of the dominant estate to keep the easement in
repair, which is ordinarily his duty without agreement
where the easement is used for the benefit of the
dominant estate alone.

The trial judge incorrectly held that the easement had no
conditions, but did not err in holding that it had not been
forfeited by failure of maintenance.

Id. (citations omitted).

[¶17.] The same is true in this case. The relevant portion of the easement

only states that "[s]aid roadway or access right-of-way shall be maintained by

GRANTEES. . . ." There is no language that expressly or implicitly provides that

the easement will be forfeited if Halls fail to maintain it. The language merely

specifies Halls' duty to maintain.

[¶18.] Because there was no genuine issue of material fact and the trial court

correctly decided that the easement contained no clear and unequivocal provision of

forfeiture for failure to maintain, partial summary judgment was correctly granted.

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II

Damages for Failure to Maintain

[¶19.] Under the terms of the grant, Halls had a duty to maintain the

easement. The trial court found that "since 1992, when Defendants Don and

Sherrie Hall acquired their property, they have performed maintenance upon said

road, including the purchase of gravel, blading and other maintenance, and have

plowed the snow from the road each winter."

[¶20.] In addition, the record reflects that in 1998, DeHavens spent $5,700 to

improve the easement roadway from the gate to just past the driveway of their new

home. Between 1998 and 2000, they spent an additional $661.20 on this section of

the roadway that they used. While DeHavens sought contribution from Halls

toward the $5,700 expended, they did not seek contributions from the two other

property owners who had a right to use the easement. Furthermore, DeHavens did

not show that these improvements and maintenances were necessary to prevent

damage to the servient estate. See infra ¶ 23 et seq. Therefore, the trial court did

not err in declining to award DeHavens damages for the $5,700 or the $661.20 they

spent improving and maintaining the easement from the gate to their driveway.

[¶21.] At the time of trial, according to DeHavens' and Halls' experts, the

entire easement roadway was also in need of rework and gravel. The trial court

granted DeHavens' request for declaratory relief, concluding that Halls were

responsible for maintaining the easement across DeHavens' property. The court

ordered Halls to "reasonably maintain the easement during the course of their use

of the easement."

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[¶22.] On appeal, DeHavens contend that the declaratory relief was

insufficient. They reassert entitlement to the $5,700 for their 1998 improvement

work as well as $661.20 for their maintenance work between 1998 and 2004. They

further seek monetary recovery for current repairs and maintenance, which

DeHavens' contractor estimated would cost $9,700.

[¶23.] An easement holder (the dominant estate, in this case Halls) owes a

limited duty to the landowner (the servient estate, DeHavens) to repair, and

maintain the easement. The Restatement (Third) of Property (Servitudes) § 4.13

(2000) defines this duty:

Unless the terms of a servitude determined under § 4.1
provide otherwise, duties to repair and maintain the
servient estate and the improvements used in the
enjoyment of a servitude are as follows:

(1) The beneficiary of an easement or profit has
a duty to the holder of the servient estate to
repair and maintain the portions of the
servient estate and the improvements used
in the enjoyment of the servitude that are
under the beneficiary's control, to the extent
necessary to

(a) prevent unreasonable interference
with the enjoyment of the servient
estate, or

(b) avoid liability of the servient-estate
owner to third parties.

[¶24.] Thus, absent express language in the easement, the beneficiary of the

dominant estate has no duty to maintain the easement to the standards the

servient tenant may desire for the servient tenant's use of the easement. The Idaho

Supreme Court explained:

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The owner of a servient estate has no duty to maintain
the easement. The duty of maintaining the easement
rests with the easement owner (i.e. dominant estate), even
when the servient owner landowner uses the easement.
That duty requires the easement owner maintain, repair,
and protect the easement so as not to create an additional
burden on the servient estate or an interference that
would damage the land, such as flooding of the servient
estate. This duty to maintain does not mean that the
easement owner is required to maintain and repair the
easement for the benefit of the servient estate.

* * *

[A]bsent a showing that the easement owners'
maintenance of the easement created an additional
burden or interference with the servient estate, the
servient estate cannot dictate the standard by which the
easement should be maintained, expend funds to
maintain it to the level desired by the servient estate and
then seek reimbursement for those expenditures and
contribution for future expenditures from the easement
owners.

Walker v. Boozer, 140 Idaho 451, 455-456, 95 P3d 69, 73-74 (2004) (internal

citations omitted). See also Baya v. Ulrich, 209 So2d 702, 706 (FlaCtApp 1968)

(stating "the dominant owner of the easement . . . [does] not have a duty to repair

and maintain it for the benefit of the . . . servient owner"); Lamb v. Lamb, 177 NC

150, 98 SE 307, 309 (1919); 2 Thompson on Real Property § 428 at 709 (1961

Replacement) (stating "the owner of an easement is under no obligation to make

repairs except as he may desire to do so for his own advantage, or unless required to

do so by contract or prescription"). In the opposite context, this Court recognized

the rule in Vander Heide v. Boke Ranch, Inc., 2007 SD 69, ¶ 49, 736 NW2d 828, 838.

This Court allowed the dominant estate to gravel an easement because there was no

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evidence that the servient estate had been burdened, injured, or infringed upon by

the graveling. Id.

[¶25.] Therefore, Halls' duty to maintain the easement was limited to the

extent that Halls did not create an additional burden upon or injure DeHavens'

land. The trial court found, and the evidence reflects, that Halls did perform some

maintenance on the easement. There was no evidence, however, that the state of

the easement in 1998 injured DeHavens' estate. Instead, DeHavens' $5,700 was

spent in 1998 to improve the "two-track trail" from the gate to their new home.

Their expenditure was for taking out the road grade, placing new material on the

road, ditching the north side of the easement, and installing a culvert. While these

improvements and the later maintenances costing $661.20 were desirable to

DeHavens, they were unilateral improvements for their benefit. While Halls'

maintenance of the easement during the time covered by the $5,700 and $661.20

claims may not have been to the standard DeHavens desired, DeHavens did not

prove that Halls' maintenance (or lack thereof) unreasonably interfered with

DeHavens' enjoyment of the estate or created a burden on the estate. Under these

circumstances, the trial court did not err in declining to award those expenditures

as damages for DeHavens' improvements to the easement.

[¶26.] Concerning the $9,700 for current repairs/maintenance, DeHavens

presented evidence that some of those repairs were necessary to fill holes and make

the easement passable. The evidence did not, however, distinguish between

improvements and repairs that DeHavens desired for their use, and the

maintenance or repair that was necessary to prevent harm to the servient estate.

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The portion of this request that related to preventing harm to DeHavens' land was

recoverable as a lack of maintenance in some areas was obviously harming the

servient estate. The evidence is undisputed that the impassable portion caused

Halls to drive around the easement on to DeHavens' land. DeHavens, however,

presented no evidence itemizing the amount necessary to repair that section of the

easement. The rest of DeHavens' claim related to improvements and repairs

DeHavens desired to facilitate their personal use of the easement. They did not tie

the balance of this claim to repairs that would be necessary to keep the easement

from harming the servient estate. Furthermore, DeHavens asked for declaratory

relief that Halls be ordered to make the repairs to the easement, or in the

alternative be ordered to pay DeHavens $9,700. The court's judgment fulfilled

DeHavens' request for alternative relief by ordering Halls to "reasonably maintain

the easement and repair the easement during the course of their use of the

easement." Because the trial court granted DeHavens' alternative request for relief,

we affirm on this issue.

III

Contempt

[¶27.] An order temporarily restraining Halls from removing the gate was

signed on December 28, 2004, and filed on January 3, 2005. DeHavens filed a

motion to extend this order on February 5, 2005, and filed a motion for preliminary

injunction to restrain Halls from removing the gate on February 8, 2005. The trial

court did not act on either motion. On February 10, 2005, after Halls cut down the

gate, DeHavens filed an affidavit seeking an order holding Halls in contempt for

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violating the temporary restraining order. The trial court signed an order to show

cause 3 that day. Although the order was filed on February 14, 2005, no formal

action was taken on the order to show cause. DeHavens contend that the trial court

erred in failing to hold Halls in contempt for cutting down the gate in violation of

the December 28, 2005 temporary restraining order.

[¶28.] "Contempt requires a showing of willful disobedience of a valid court

order with knowledge of the contents of the order and ability to comply with terms

of the order." Cramer v. Smith, 1997 SD 137, ¶ 11, 572 NW2d 445, 447. An order

"becomes complete and effective when reduced to writing, signed by the court or

judge, attested by the clerk, and filed in the clerk's office." SDCL 15-6-58. SDCL

15-6-65(b) governs the period of time the temporary restraining orders remain

effective thereafter:

Every temporary restraining order granted without notice
. . . shall expire by its terms within such time after
entry, not to exceed ten days, as the court fixes, unless
within the time so fixed the order, for good cause shown,
is extended for a like period or unless the party against
whom the order is directed consents that it may be
extended for a longer period of time.

* * *

When the motion comes on for hearing the party who
obtained the temporary restraining order shall proceed
with the application for a preliminary injunction and, if
he does not do so, the court shall dissolve the temporary
restraining order.

[¶29.] In this case, the December 28, 2004 temporary restraining order

became effective upon filing on January 3, 2005. The order then restrained Halls

3. We treat this as a motion.

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from removing the gate "until further order of the court," but it did not set a date for

hearing. Further, by operation of law, the temporary restraining order expired on

January 13, 2005. See SDCL 15-6-65(b). Thus, by February 2005, when DeHavens

sought to extend the temporary restraining order, obtain a preliminary injunction,

and hold Halls in contempt for violating the order, the temporary restraining order

had already expired and was of no legal effect. See Golden v. Oahe Enter., Inc., 90

SD 263, 240 NW2d 102 (1976). In the absence of a valid court order, Halls could not

be held in contempt.

IV

Damages for Tree Removal and
Cleanup of Debris

[¶30.] In December 2004, Halls cut down the two mature pine trees at the

entry to the easement. While one tree was on a third party's property, the other

was located on the easement seventeen feet from the western boundary of Halls'

thirty-foot wide easement. The trial court found that this tree did not interfere with

Halls' reasonable use of the easement. Therefore, it awarded DeHavens $1,500 for

the stipulated value of the tree. See SDCL 21-3-10. The court did not award

DeHavens any damages for the cost of removing the tree stump and debris.

DeHavens contend that they are entitled to the cost of cleaning up. Halls, by notice

of review, contend that their removal of the tree was consistent with the terms of

the ingress/egress easement, and therefore, the trial court erred in awarding any

damages.

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A

Tree Removal

[¶31.] In the absence of contrary language in the easement, a servient owner

may reasonably use that portion of its real property subject to an egress, ingress,

and roadway easement for its own purposes up to the point where such uses

substantially interfere with the dominant owner's reasonable use of the easement.

Picardi II, 2005 SD 24, ¶ 32, 693 NW2d at 665 (citing Maasen v. Shaw, 133 SW3d

514, 520 (MoCtApp 2004)). Thus,

[t]he right to "store, park, plant, and construct on the non-
roadway portions of the easement remain with the
servient owner." Id. (citing Earth City Crescent v. Assoc's
v. LAGF Assoc's-Mo, LLC, 60 SW3d 44, 46 (MoCtApp
2001); Frain v. Brda, 863 SW2d 17, 19 (MoCtApp 1993);
Baum v. Glen Park Properties, 660 SW2d 723, 726-27
(MoCtApp 1983); Schroer v. Brooks, 204 MoApp 567, 224
SW 53, 57 (1920)). The servient tenement owner's uses of
non-roadway portions of the easement include parking,
signage, curbing, planting or removal of trees, sod and
other vegetation. Id.

Id. (emphasis added). The dominant owner may only remove an obstruction when it

interferes with the dominant owner's right of use. Maasen, 133 SW3d at 520.

"[T]he dominant owner may remove trees and earth that obstruct the easement

roadway." Id.

[¶32.] Halls were originally granted a thirty-foot wide permanent easement

for purposes of ingress and egress. At the point of entry, however, Halls only

utilized approximately fourteen feet of the easement. 4 DeHavens, as the owners of

4. We have noted that the failure to "make use of the full rights of the easement
area as contained in the grant will not lessen the extent of the original grant
in the future." Picardi I , 2004 SD 125, ¶ 16, 689 NW2d at 890.

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the land underlying the easement, had the right to use the portion of the easement

not used for ingress and egress: DeHavens' right was exercisable . . . :

[I]n any reasonable manner that does not interfere with
[Halls'] ability to travel upon the roadway. This includes
the right to use the ditches of the current roadway, and
the ditches of any future roadway, for parking signage,
fences, fence posts, curbing, planting or removal of trees,
sod, or other vegetation.

Picardi II, 2005 SD 24, ¶ 34, 693 NW2d at 665.

[¶33.] In this case the trial court found, and the evidence reflects, that the

tree did not interfere with the Halls' reasonable use of the easement. While

potential purchasers complained of difficulty accessing the easement, Halls did not

present evidence that they were expanding the roadway from its current width to

the maximum allowable width or that removal of the tree was necessary because it

obstructed the roadway. 5 Because the trial court found that the tree did not

interfere with Halls' reasonable use of the easement, Halls were not entitled to

remove the tree.

[¶34.] With respect to damages, SDCL 21-3-10 provides in part:

For the wrongful injury to timber, trees, . . . or removal
thereof the measure of damages is three times such a sum
as would compensate for the actual detriment[.]

The parties stipulated that the value of the tree was $500, and the court awarded

$1,500 for the tree. The trial court did not err in awarding damages.

5. Had DeHavens proven that case, the tree may have been rightfully removed.
See Picardi II, 2005 SD 24, ¶ 33, 693 NW2d at 665.
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B

Cleanup of Tree Debris

[¶35.] DeHavens contend that the trial court erred by not awarding the costs

they would incur to remove the tree stump and debris. They argue that leaving the

stump may eventually lead to decay and harm the easement, which entitles them to

damages.

[¶36.] DeHavens, however, presented no evidence that Halls' failure to

remove the stump and tree debris in this area of the Black Hills created an

additional burden on the servient estate or an interference that damaged the land.

See Vander Heide, 2007 SD 69, ¶ 49, 736 NW2d at 838. In the absence of such

proof, the trial court did not err in failing to award damages for cleanup costs.

V

Damages for Gate Removal and
Cleanup of Gate Debris

[¶37.] On February 20, 2005, the parties and their counsel reached an

agreement that the gate would be removed. James DeHaven testified that the

agreement contemplated removal of the gate posts with a front loader so that the

posts could be reused. He further testified that under the agreement, he was

allowed to put up a thirty-foot gate before the other gate was removed in order to

prevent his horses from escaping. Don Hall testified that his understanding of the

agreement was that he could remove the gate, and he did so immediately. The trial

court did not address this dispute of fact. Instead, it found that the gate did not

interfere with Halls' reasonable use of the easement, and awarded $858 "for the cost

to repair the gate and support posts."

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A

Gate Removal

[¶38.] The parties' agreement concerning the removal of the gate is crucial to

determining if the award of damages for its removal was appropriate. The trial

courts' findings, however, fail to address the issue of the agreement concerning

when, how, and who could remove the gate. "The trial court is required to make

findings on all disputed material issues. . . ." Hanks v. Hanks, 334 NW2d 856,

860 (SD 1983). Therefore, we reverse the award of damages, and remand for the

entry of findings of fact, conclusions of law, and a reconsideration in light of the

parties' agreement.

B

Cleanup of Gate Debris

[¶39.] As with the tree debris, DeHavens have not shown that Halls' failure

to remove the gate debris created an additional burden on the servient estate or an

interference that damaged the land. In the absence of such proof, the trial court did

not err in failing to award damages for cleanup costs.

VI

Disbursements

[¶40.] The trial court awarded DeHavens $162.83 in disbursements. It

disallowed disbursements for photographs, maps, copying costs, fax charges, and

witness fees for a subpoenaed witness who did not testify. The court denied these

disbursements, opining that "unless there's unusual circumstances, I don't believe

the Supreme Court feels that the trial court should grant [disbursements] by and

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large. . . . They are very narrow in what they allow in the mind of this court."

The trial court was also concerned with the lack of itemization of some of the

disbursements. We address both reasons for the denial of disbursements.

[¶41.] "It is well settled that costs and disbursements are creatures of

statute, and cannot be allowed in the absence of statutory authority." Elfring v.

New Birdsell Co., 17 SD 350, 351, 96 NW 703, 704 (1903).

[T]he taxation of costs was unknown to the common law,
and . . . courts are without the inherent power to tax
costs. The authority to tax such costs should not be
implied, but must rest upon a clear legislative grant of
power to do so.

Matter of Estate of O'Keefe, 1998 SD 92, ¶ 18, 583 NW2d 138, 142 (quoting Salem

Sales, Inc. v. Brown, 443 NW2d 14, 15 (SD 1989)).

[¶42.] Prior to 1992, costs included indemnity. Nelson v. Nelson Cattle Co.,

513 NW2d 900, 907 n16 (SD 1994). SDCL 15-17-1 (1919) provided:

In civil actions and in certiorari, mandamus, and
prohibition proceedings, there may be allowed to the
prevailing party certain sums by way of indemnity for his
expenses in the action or proceeding, which allowances
are termed "costs."

Under that statutory scheme, costs included flat fees as indemnification for

expenses incurred in preparing for and going to trial. SDCL 15-17-2 (1977) detailed

the items and amounts allowed:

The costs, except as otherwise provided in special cases,
allowed in civil actions shall be as follows:

(1) To the plaintiff for all proceedings before
notice of trial in actions arising on contract
for the recovery of money only, fifteen
dollars; in other actions, twenty-five dollars;
for all proceedings after notice of and before

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trial, six dollars; for each additional
defendant served with process not exceeding
ten, two dollars;

(2) To the defendant for all proceedings before
notice of trial, fifteen dollars; and for all
proceedings after notice of and before trial,
six dollars;

(3) To either party when a new trial shall be had
for all proceedings after granting of and
before such new trial, five dollars, for
attending upon and taking the deposition of
a witness conditionally or tending to
perpetuate his testimony, two dollars, for
drawing interrogatories to annex to a
commission for the taking of testimony, two
dollars;

(4) For every trial of an issue of fact, five dollars;

(5) To either party for every term not exceeding
five at which the cause is necessarily on the
calendar and is not tried or is postponed by
order of the court, three dollars; and for
every term not exceeding five, excluding the
term at which the cause is argued in
the Supreme Court, five dollars.

SDCL 15-17-3 (1977) specified the costs allowed in special proceedings. SDCL 15-

17-16 (1980) governed other actions:

In actions other than those specified in §§ 15-17-11, 15-17-
12, 15-17-14 and 15-17-15, 6 costs may be allowed or not,
in the discretion of the court.

6. SDCL 15-17-11 listed actions where costs were allowed as a matter of course
to the plaintiff. SDCL 15-17-12 mentioned tort actions in which the
plaintiff's costs were limited by damages. SDCL 15-17-14 limited a plaintiff's
costs in multiple actions on a single cause of action. SDCL 15-17-15 allowed
costs as a matter of course to the defendant in actions mentioned in SDCL 15-
17-11 to 15-17-14, unless the plaintiff was entitled to them.

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[¶43.] In cases where a party was allowed to recover costs, miscellaneous fees

and evidentiary out-of-pocket expenses were also allowed. Nelson, 513 NW2d at

907 n16. SDCL 15-17-4 (1989) provided:

In all cases when a party is allowed to recover costs, the
clerk shall also tax as a part of the judgment the
allowance of such party's witnesses', interpreters',
translators', officers', and printers' fees, reasonable
copying fees, fees for the service of process, filing fees and
the necessary expense of taking depositions and procuring
necessary evidence.

[¶44.] In the 1992 legislative session, the State Bar promoted a legislative

package "to reform the taxation of costs. The proposal was to eliminate the taxation

of costs as an indemnity and to substitute taxation of disbursements." Nelson, 513

NW2d at 907. The legislative package was enacted. 1992 SD SessL ch 148. As a

result, SDCL 15-17-1, 15-17-2, 15-17-3, 15-17-4, 15-17-16, as well as the rest of the

chapter on costs, were repealed. 1992 SD SessL ch 148, § 26. They were replaced

by twenty-five new sections, beginning with SDCL 15-17-36, which deal with the

recovery of disbursements, i.e., out-of-pocket expenses rather than indemnity for the

expense of going to court.

[¶45.] Under the new statutory scheme,

The concept of costs as an indemnity to be recovered by a
prevailing party is abolished in the courts of South
Dakota. Whenever the term, costs, is used, it means
disbursements as defined in § 15-17-37.

SDCL 15-17-36. The abolishment of the concept of costs as indemnity was

substituted with the concept of "making the winning party whole for expenses

incurred in successful litigation. SDCL 15-17-36." Nelson, 513 NW2d at 907. Our

jurisprudence with respect to allowable expenses has not, however, significantly

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changed. This appears to be because SDCL 15-17-4 (repealed) (defining recoverable

out-of-pocket expenses) is almost identical to the disbursements allowed under

SDCL 15-17-37.

[¶46.] Today, with the elimination of indemnification, recoverable expenses

(disbursements) continue to be "the actual out-of-pocket expenditures" defined in

SDCL 15-17-37. Nelson, 513 NW2d at 907. SDCL 15-17-37 provides:

The prevailing party in a civil action or special proceeding
may recover expenditures necessarily incurred in
gathering and procuring evidence or bringing the matter
to trial. Such expenditures include costs of telephonic
hearings, costs of telephoto or fax charges, fees of
witnesses, interpreters, translators, officers, printers,
service of process, filing, expenses from telephone calls,
copying, costs of original and copies of transcripts and
reporter's attendance fees, court appointed experts, and
other similar expenses and charges. These expenditures
are termed "disbursements" and are taxed pursuant to §
15-6-54(d).

The new statutory scheme also allows the discretionary taxation of disbursements

without specific statutory authorization:

If there is no specific statutory authorization allowed for
taxation of disbursements in a civil action or special
proceeding, taxation of disbursements may be allowed in
the discretion of the court.

SDCL 15-17-44.

[¶47.] In either case, a party who wishes to recover disbursements must file

an application that includes a "statement in detail" of the disbursements claimed,

which "shall be verified by affidavit." SDCL 15-6-54(d). Furthermore, under other

provisions "[t]he court may limit the taxation of disbursements in the interests of

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justice," SDCL 15-17-52, and "[t]he court may reduce or disallow a taxation of

disbursements that would be oppressive or work a hardship." SDCL 15-17-33.

[¶48.] In interpreting the general disbursement provision, SDCL 15-17-37,

this Court has focused on its second sentence, which enumerates "sixteen specific

costs or disbursements allowed." Zahn v. Musick, 2006 SD 26, ¶ 55, 605 NW2d 823,

834. While this Court has recognized that the trial court has discretion under

SDCL 15-17-37, we have urged courts to use cautious restraint and allow only those

disbursements "specifically authorized by [SDCL 15-17-37]." Lewis v. Aslesen, 2001

SD 131, ¶ 10, 635 NW2d 744, 747. Thus, the statutory language of the enumerated

items in the second sentence of SDCL 15-17-37 has been followed "word for word."

Atkins v. Statmeyer, 1999 SD 131, ¶ 33, 600 NW2d 891, 900. As a result, expert

witness fees, 7 investigation fees and impairment ratings, 8 surveying costs, 9

investigative videotapes, 10 abstract and audit fees, 11 computerized legal research

fees, 12 and book, mileage and motel expenses 13 have not been allowed as taxable

disbursements because they were not referred to in the sixteen enumerated items.

In those cases, this Court has been "extremely hesitant to allow disbursements for

7. Nelson, 513 NW2d at 907.

8. Atkins, 1999 SD 131, ¶ 33, 600 NW2d 900.

9. Lewis, 2001 SD 131, ¶ 10, 635 NW2d 747.

10. Zahn, 2006 SD 26, ¶ 57, 605 NW2d at 834.

11. City of Aberdeen v. Rich, 2003 SD 27, ¶ 29, 658 NW2d 775, 783.

12. Casillas v. Schubauer, 2006 SD 42, ¶ 28, 714 NW2d 84, 91.

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'other similar expenses and charges' as mentioned in SDCL 15-17-37." City of

Aberdeen, 2003 SD 27, ¶ 27, 658 NW2d at 782.

[¶49.] The problem in application of the statute has arisen because, in

addition to the disbursements specifically enumerated in the second sentence of

SDCL 15-17-37, recovery may be allowed under the first sentence for "expenditures

necessarily incurred in gathering and procuring evidence or bringing the matter to

trial." Although the first sentence is broad and literally unlimited, the language

was included in the predecessor statute (SDCL 15-17-4 (1989)) allowing out-of-

pocket expenses, and this Court has been reluctant to apply a new, expansive

interpretation of recoverable disbursements. Thus, in Nelson, supra, this Court

denied disbursements recognizing that expert witnesses are necessary in many

medical malpractice, legal malpractice, and condemnation cases. Also, in Zahn,

supra, a personal injury case, this Court denied a request for the cost of an

investigative video tape even though we recognized it was "necessarily incurred in

gathering and procuring evidence or bringing the matter to trial." 2006 SD 26, ¶ 57,

605 NW2d at 834. In both cases, the disbursements were not allowed because they

were not specifically authorized in the second sentence of SDCL 15-17-37.

[¶50.] This restrictive interpretation of this disbursement statute has

continued even though the second sentence is not an exclusive list of recoverable

disbursements. We have often noted that language describing a general subject

followed by language "including" specific examples is not intended to be an exclusive

13. Genetics Research v. J K Mill-Iron Ranch, 535 NW2d 839, 846 (SD 1995)
(also concluding that the expenses are not allowable under SDCL 15-17-44).
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list. Peterson v. Peterson, 2000 SD 58, 610 NW2d 69; Hautala v. Hautala, 417

NW2d 879 (SD 1988).

[¶51.] Nevertheless, it is well-settled that where general words precede the

enumeration of particular classes of things, the ejusdem generis cannon of

construction requires that the general words will be construed as applying only to

things of the same general kind as those enumerated. Grievance of O'Neill, 347

NW2d 887 (SD 1984). Accordingly, while the first sentence of SDCL 15-17-37 allows

the recovery of "expenditures necessarily incurred in gathering and procuring

evidence or bringing the matter to trial," and the last phrase of the second sentence

includes "other similar expenses and charges," recoverable expenditures under the

first sentence must be of the same general kind as those specifically enumerated in

the second sentence.

[¶52.] Consequently, the prevailing party in a civil action may recover

necessary expenditures "incurred in gathering and procuring evidence or bringing

the matter to trial" and "other similar expenses and charges" if these expenditures,

expenses and charges are of the same general kind as the . . .

costs of telephone hearings, costs of telephoto or fax
charges, fees of witnesses, interpreters, translators,
officers, printer, service of process, filing, expenses from
telephone calls, copying, costs of original and copies of
transcripts and reporter's attendance fees, court
appointed experts[.]

SDCL 15-17-37. And, even those costs are not necessarily required. The statutes

give considerable discretion in denying recoverable disbursements:

[A] court is not required to grant recovery for
disbursements simply because a party has achieved the
status of a prevailing party. While SDCL 15-17-37 grants

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no discretion, SDCL 15-17-52 allows a court to "limit the
taxation of disbursements in the interests of justice."
This statute grants discretion to deny recovery of
disbursements even though SDCL 15-17-37 does not.

Full House, Inc. v. Stell, 2002 SD 14, ¶ 25, 640 NW2d 61, 67 (quoting Culhane, v.

Michels, 2000 SD 101, ¶ 33, 615 NW2d 580, 590). Furthermore, the prevailing

party who seeks disbursement bears the responsibility of documenting, itemizing,

and justifying the necessary expenditures that it seeks. SDCL 15-6-54(b) provides

in part:

If a party wishes to have disbursements and costs of the
action assessed, that party must file an application for the
taxation of costs. . . . The application shall include a
statement in detail of the costs and disbursements
claimed and shall be verified by affidavit. (Emphasis
added).

Finally, allowable disbursements must be proven. Atkins, 1999 SD 131, ¶ 32, 600

NW2d at 900.

[¶53.] In this case, the trial court awarded DeHavens $162.83 as

disbursements. It disallowed disbursements for photographs, maps, copying costs,

fax charges and witness fees for a subpoenaed witness who was not called to testify.

The court denied these disbursements because of our restrictive interpretation of

the statutes. The court was also concerned with the lack of itemization for some of

the disbursements claimed.

[¶54.] In light of the 1992 legislation regarding the recovery of

disbursements, the trial court was overly restrictive in its view of the type of

disbursements that are recoverable. Nevertheless, it did not abuse its discretion by

denying the disbursements it did because of DeHavens' failure of proof.

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[¶55.] A review of the exhibits attached to DeHavens' application and

affidavit for "costs" reveals a list of claimed disbursements with a lump sum amount

for each item. For example, DeHavens sought $228.75 for copies and $195 for fax

charges. DeHavens did not, however, itemize the number of copies or faxes, the

price per copy or fax, and the necessary purpose for the copies and faxes. The same

was true with other items requested. In addition, embedded within the list of

disbursements sought, DeHavens inexplicably requested payment for cement,

reflector tape, and two lunches with their attorney. Under these circumstances, the

trial court did not abuse its discretion in denying the omitted disbursements.

[¶56.] The judgment is affirmed in part, reversed in part, and remanded.

[¶57.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY,

Justices, concur.

[¶58.] SABERS, Justice, concurs in part and concurs in result in part.

SABERS, Justice (concurring in part and concurring in result in part).

[¶59.] I concur except as to Issue VI, Disbursements, where I concur in result

because the trial court did not abuse its discretion in denying the disbursements for

lack of detailed proof.

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