#29435-r-MES
2023 S.D. 3
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
TODD FUOSS, Plaintiff and Appellee,
v.
DAHLKE FAMILY LIMITED
PARTNERSHIP and RODNEY L. MANN, Defendants and Appellants.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
JONES COUNTY, SOUTH DAKOTA
****
THE HONORABLE M. BRIDGET MAYER
Judge
****
MARTY J. JACKLEY
CATHERINE A. SEELEY
Gunderson, Palmer, Nelson
& Ashmore, LLP
Pierre, South Dakota Attorneys for defendants and
appellants.
A. JASON RUMPCA
ROBERT C. RITER, JR. of
Riter Rogers, LLP
Pierre, South Dakota Attorneys for plaintiff and
appellee.
****
ARGUED
APRIL 27, 2021
OPINION FILED 01/04/23
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SALTER, Justice
[¶1.] Todd Fuoss initiated this action to acquire adverse possession over a
portion of land owned by the Dahlke Family Limited Partnership and Rodney
Mann. Fuoss also sought a prescriptive easement over their property and requested
injunctive relief providing him access over the land. After a court trial, the circuit
court accepted Fuoss’s adverse possession ownership claim and also granted him an
access easement under theories of prescriptive easement, easement by necessity,
and an easement implied by prior use. The Dahlke Family Limited Partnership
and Mann appeal. We reverse and remand the case for further proceedings.
Facts and Procedural History
[¶2.] Rodney Mann is a partner in the Dahlke Family Limited Partnership
(the Partnership), which owns land in rural Jones County. Todd Fuoss is an
adjoining landowner who maintains a fence encroaching on land to which Mann and
the Partnership hold record title. Relevant to this appeal, the Partnership owns
“The Northeast Quarter of Section 9, Township 3 South, Range 30 East, in Jones
County, South Dakota,” (the Partnership Property or Section 9), 1 while Fuoss owns
the property directly east, described as “All of Section 10, Township 3 South, Range
30 East of the Black Hills Meridian, Jones County, South Dakota” (the Fuoss
Property or Section 10).
[¶3.] Commonly referred to as Bull Creek Road, 248th Street runs along the
north end of the Partnership Property and the Fuoss Property and spans Bull
Creek, which is a winding waterway with steep banks and a history of seasonal
1. The parties indicate that Mann also has a separate, individual ownership
interest in the Section 9 parcel.
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flooding. Bull Creek runs from the north and crosses under Bull Creek Road
through a large drainage pipe near the boundary between the Partnership Property
and the Fuoss Property. 2 Bull Creek then runs to the southeast and cuts diagonally
across the Fuoss Property, effectively dividing it into an east portion and a west
portion.
[¶4.] The Partnership Property was originally purchased by Mann’s
grandfather, Ludwig Dahlke, by way of a 1946 contract for deed with Jasper and
Laura Hullinger. In June 1948, a different Hullinger couple—Clarence and Anna
Marie—conveyed the land to Ludwig and his wife. The record does not indicate
when or how Jasper and Laura Hullinger transferred their interest to Clarence and
Anna Marie Hullinger. The Partnership Property has remained in the Dahlke
family since it acquired the property, and in 1999, Earl Dahlke deeded a one-half
interest of the land to the Partnership.
[¶5.] The Fuoss Property also traces its history to Clarence and Anna Marie
Hullinger, who deeded the Fuoss Property and other real property to Leo Nichols in
May 1948—just one month prior to transferring the Partnership Property to Ludwig
Dahlke. The Fuoss Property then passed from Leo Nichols to Darrel Lintvedt who
began using it for ranching in 1964. Darrel transferred the Fuoss Property to
2. The exact location of the property line is unknown. A township plat map
contained in the record depicts a standard straight-line grid pattern dividing
the township into thirty-six sections and purports to split Sections 9 and 10
down the middle of the northernmost portion of Bull Creek. Witness
testimony varied on the precise location of the property line, with some
suggesting the middle of Bull Creek and others estimating it was some
distance east of there. Neither party obtained a survey.
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Rodney Sather in 1996, and Sather conveyed the land by warranty deed to Todd
Fuoss in 2003.
[¶6.] When Darrel took possession of the Fuoss Property in 1964, an
east/west fence ran along Bull Creek Road and over Bull Creek itself. From a point
along the east/west fence on the west side of Bull Creek, another fence extended
south to divide the two properties. Because Bull Creek cuts close to the property
line between Sections 9 and 10 and was prone to flooding, the northwest portion of
the fence frequently washed out, forcing Darrel to replace or repair the fence often.
During his trial deposition, Darrel explained that a few years after he purchased
the Fuoss Property, he approached Ludwig and asked for permission to move the
northern portion of the fence farther to the west for convenience and to prevent
additional damage to the fence. Ludwig looked at the land with Darrel and granted
him verbal permission both to move the fence to its current location on the
Partnership Property and to use the narrow portion of Partnership Property on the
east side of the new fence line for grazing cattle.
[¶7.] After obtaining Ludwig’s permission, Darrel’s son, Brian Lintvedt,
moved the northwest portion of the fence to the west, away from Bull Creek and
well onto the Partnership Property. The portion of the fence that was moved ran
south and connected with the existing fence where Bull Creek wends its way to the
southeast, through Section 10 and away from the Partnership Property. This fence
alteration created a triangular area, approximately one to one and one-half acres in
size. The triangular area was located within Section 9 and legally belonged to
Ludwig, but it became separated from the rest of what became the Partnership
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Property by the fence and permissively used by Darrel and the subsequent owners
of what became the Fuoss Property. Determining the current, competing ownership
claims to this triangular area (the Disputed Area) is at the heart of this appeal.
[¶8.] Also at issue is access to the Fuoss Property through the Partnership
Property. The first field approach west of Bull Creek and off Bull Creek Road leads
directly south to a hay yard located on the Partnership Property and used by Mann.
Prior to moving the fence to its current location, Darrel used the approach on the
Partnership Property to access the Fuoss Property through what is now the hay
yard using a let-down gate along the north/south fence. At the same time that
Darrel received permission to move the fence, he sought permission from Ludwig to
replace the let-down with an actual gate so he could access the Disputed Area and
the Fuoss Property west of Bull Creek more conveniently. Ludwig again obliged
and granted verbal permission to install the gate. The following is an aerial image
of the area annotated by the parties and oriented so that north appears on the left
side of the page.
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[¶9.] Darrel sold the Fuoss Property to Rodney Sather in 1996. According to
Sather, Darrel specifically told him that he would not own the Disputed Area and
that his access to the west portion of Section 10 was the result of a gentlemen’s
agreement with Ludwig, who had granted Darrel permissive use of the property.
During his ownership, Sather constructed an electric fence on the Fuoss Property
along an old fence line, closer to Bull Creek and consistent with where he believed
the property line to be. The electric fence functioned to keep the bison he pastured
out of Bull Creek. Though he expressed some uncertainty given the intervening
years, Sather testified that he generally accessed the Fuoss Property on the west
side of Bull Creek through the gate in the hay yard.
[¶10.] Sather also placed “No Trespassing” signs bearing his name on the
east/west fence along Bull Creek Road, including one on the corner post of the fence
line bordering the Disputed Area. Sather testified that he did not place the signs to
assert ownership of the Disputed Area, but rather to keep unauthorized hunters off
both parcels.
[¶11.] Nevertheless, Fuoss testified that he believed he had purchased the
Disputed Area. Sather testified that he never specifically told Fuoss that he was
not the record title holder of the Disputed Area, or that the Disputed Area was not
part of the Fuoss Property that Fuoss was purchasing. However, Sather indicated
that the legal description of the Fuoss Property was restricted to Section 10, which,
he explained, was consistent with his understanding that he did not own any
portion of Section 9.
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[¶12.] Mann testified that he and the Partnership continued to permissively
allow Fuoss use of the Disputed Area and access to the Fuoss Property over the
Partnership Property, just as they had for Fuoss’s predecessors. However, in 2016,
the Partnership and Mann fenced in their hay yard and placed a gate across the
approach in that area, apparently in response to what Mann considered to be
unauthorized hunting in the area. Later, Mann padlocked the gate across the
approach, preventing Fuoss’s access to the Disputed Area by vehicle. In response,
Fuoss placed a wire gate on the east/west fence running along the north edge of the
Disputed Area so he could access his cattle located on the Disputed Area and the
west half of the Fuoss Property. Mann then blocked Fuoss’s access via that point of
entry as well.
[¶13.] Fuoss commenced this action, claiming he owned the Disputed Area by
virtue of adverse possession and seeking a prescriptive easement for ingress and
egress over the Partnership Property via the hay yard. The case was ultimately
tried to the circuit court.
[¶14.] One of the central issues at trial centered upon whether Fuoss’s
possession of the Disputed Area, and that of his predecessors, was hostile—a
necessary element of adverse possession. Fuoss argued that the hostility element
was satisfied by the doctrine of acquiescence, which presumes hostility in situations
where both parties acquiesce to a boundary line for the statutory period required for
adverse possession. See City of Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 22, 607
N.W.2d 22, 28. Fuoss argued that Darrel himself satisfied the elements of adverse
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possession over the Disputed Area after moving the fence and using the Disputed
Area for over twenty years.
[¶15.] Mann and the Partnership had a different view and argued that none
of the previous owners of the Fuoss Property ever satisfied the hostility element of
adverse possession because their use of the Disputed Area was always permissive.
They claim Ludwig granted Darrel express verbal permission to move the fence to
the west and to then use the property located east of it. But, in their view, neither
of them ever agreed that the new fence line constituted a new boundary. In
addition to remaining as the record owners of the Disputed Area, Mann and the
Partnership maintained financial responsibility for the land by purchasing crop
insurance covering the Disputed Area and by paying all property taxes associated
with it.
[¶16.] Applying the doctrine of acquiescence, the circuit court accepted
Fuoss’s argument that there was an evidentiary presumption of hostility that, in
the court’s view, satisfied this element of adverse possession. The court
acknowledged that the presumption of hostility can be overcome with proof that use
of the Disputed Area was permissive. However, the court found that Ludwig’s
approval to move the fence at Darrel’s request was not merely permissive, but
represented an agreement between Ludwig and Darrel to change the ownership
boundary between their two tracts of land.
[¶17.] The circuit court also discredited the portion of Sather’s testimony
concerning his discussion with Darrel about the history of permissive use for the
Disputed Area and found that the placement of the “No Trespassing” signs
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evidenced Sather’s intent to claim the land as his own. Specifically, the court found
that Sather’s claim that Darrel told him “this is not your property” as it pertained to
the Disputed Area was not credible.
[¶18.] As to the easement claims, the court found that a 1948 aerial
photograph, discovered online by Fuoss, depicted “a well-established dirt trail” that
the court characterized as the same route that currently runs through the hay yard
on the Partnership Property. The court similarly found that each of Fuoss’s
predecessors “have traditionally used the area of property that the dirt trail
traverses through as a hay stackyard” to enter the Disputed Area and “reject[ed] as
a matter of law, and fact, [the] claim that Darrel Lintvedt’s use of the trail was
merely permissive.”
[¶19.] The circuit court also allowed Fuoss to amend his pleadings to conform
to the evidence and assert implied easement claims based upon necessity and prior
use. The court separately concluded that all three theories supported Fuoss’s claim
for an easement to access the western portion of Section 10 through the Partnership
Property.
[¶20.] The Partnership and Mann now appeal, raising two issues, which we
restate as follows:
1. Whether the circuit court erred when it found Fuoss and
his predecessors in interest met the hostility requirement
for adverse possession.
2. Whether the circuit court erred when it granted Fuoss an
easement over the Partnership Property.
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Standard of Review
[¶21.] “Proof of the individual elements of adverse possession present
questions of fact for the circuit court, while the ultimate conclusion of whether they
are sufficient to constitute adverse possession is a question of law.” Gangle v. Spiry,
2018 S.D. 55, ¶ 11, 916 N.W.2d 119, 123 (quoting Underhill v. Mattson, 2016 S.D.
69, ¶ 9, 886 N.W.2d 348, 352). The same is true for reviewing determinations of
easement claims. See Rancour v. Golden Reward Mining Co., L.P., 2005 S.D. 28,
¶ 5, 694 N.W.2d 51, 53 (applying the same standard to a prescriptive easement
claim following a court trial).
[¶22.] “[W]e review a circuit court’s factual findings for clear error and its
legal conclusions de novo.” Gangle, 2018 S.D. 55, ¶ 11, 916 N.W.2d at 123. “A
finding is ‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Eagle Ridge Estates Homeowners Ass’n, Inc. v.
Anderson, 2013 S.D. 21, ¶ 12, 827 N.W.2d 859, 864 (citation omitted).
Analysis and Decision
Adverse Possession
[¶23.] Generally, the “person establishing legal title” to real property is
“presumed to have been possessed thereof . . . ; and the occupation of such premises
by any other person shall be deemed to have been under and in subordination to the
legal title, unless it appear that such premises have been held and possessed
adversely . . . .” SDCL 15-3-7. “Property that has been actually and continuously
occupied under a claim of title exclusive of any other right is subject to adverse
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possession.” Gangle, 2018 S.D. 55, ¶ 13, 916 N.W.2d at 123 (emphasis added)
(citing SDCL 15-3-12).
[¶24.] A person claiming title by adverse possession must prove the following
elements by clear and convincing evidence: “(1) an occupation that is (2) open and
notorious, (3) continuous for the statutory period, and (4) under a claim of title
exclusive of any other right.” 3 Underhill, 2016 S.D. 69, ¶ 11, 886 N.W.2d at 352
(citing SDCL 15-3-12). “The claimant’s occupation must be of such a nature as ‘to
give the true owner notice of actual possession and to put him on inquiry as to the
invasion of his rights.’” Gangle, 2018 S.D. 55, ¶ 13, 916 N.W.2d at 123 (quoting
Hamad Assam Corp. v. Novotny, 2007 S.D. 84, ¶ 7, 737 N.W.2d 922, 924).
[¶25.] Here, only the fourth element of adverse possession is at issue. This
element requiring “a claim of title exclusive of any other right” is often described as
“hostile possession.” See, e.g., Helleberg v. Estes, 2020 S.D. 27, ¶ 21, 943 N.W.2d
837, 843; Swaby v. Northern Hills Regional R.R. Authority, 2009 S.D. 57, ¶ 34 n.25,
769 N.W.2d 789, 812 n.25. Significant to our discussion here, a possessor’s use
cannot be considered hostile where it is permissive. Gangle, 2018 S.D. 55, ¶ 18, 916
N.W.2d at 124-25 (citation omitted) (emphasis added).
[¶26.] Further, we have recognized that a landowner’s decision to grant
another permission to use the owner’s land is durable and does not wane simply
with the passage of time or the succession of ownership. Consequently, a
“permissive use does not ripen into a claim of hostility by the mere transfer of the
3. For an adverse possession theory such as the one presented here, the
provisions of SDCL 15-3-1 require a statutory possession period of twenty
years.
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dominant estate.” Id. ¶ 18, 916 N.W.2d at 124. The character of a permissive use
can change, of course, but not without purposeful effort. For this reason, we have
held “that a use permissive in the beginning can be changed into one which is
hostile and adverse only by the most unequivocal conduct on the part of the user.”
Id. ¶ 18, 916 N.W.2d at 125 (citation omitted).
[¶27.] In a similar way, our cases also distinguish between an indefinite
permissive use of land and acquiescence to a boundary that may eventually transfer
ownership in the affected property. We have held in this regard that “the mere fact
that a landowner allows his neighbor to occupy or use part of his land does not
automatically fix the boundary between them or give the neighbor a right to use or
take the property in perpetuity.” Summit, Inc., 2000 S.D. 29, ¶ 27, 607 N.W.2d at
30 (quoting Finley v. Yuba Cnty. Water Dist., 160 Cal. Rptr. 423, 429 (Cal. Ct. App.
1979)).
[¶28.] Therefore, a permissive use does not simply neutralize a claim that the
possession was hostile; it is antithetical to perhaps the most fundamental aspect of
adverse possession—the possessor’s claim to own the land. See SDCL 15-3-12
(requiring “actual continued occupation of premises under a claim of title . . . ”)
(emphasis added). Simply put, where a party possesses another’s land with
permission and holds no pretense of ownership, there can be no claim of adverse
possession. Regarding a permissive use in this way allows property owners the
ability to grant permission for the use of their land for indefinite periods of time,
should they choose to do so, without the fear that they will be judicially divested of
their property.
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[¶29.] Applying these rules here, we must reverse the circuit court’s decision
that Fuoss acquired title to the Disputed Area by adverse possession. Even if there
was sufficient evidence that Fuoss believed he owned the Disputed Area, the length
of his asserted ownership is insufficient to establish the twenty-year statutory
period, as Fuoss himself acknowledges. To prevail on his adverse possession claim,
Fuoss must look to his predecessors in interest and succeed under one of two
theories.
[¶30.] Under one theory, Fuoss could establish that Darrel’s possession of the
Disputed Area was never permissive, but rather was hostile as a result of an
agreement with Ludwig to permanently alter their relative property interests by
repositioning the fence. Fuoss could also prevail by proving Sather possessed the
Disputed Area under a claim of title and then attach, or “tack,” the two possessory
periods together. See Estate of Billings v. Deadwood Congregation of Jehovah
Witnesses, 506 N.W.2d 138, 141 (S.D. 1993) (“[T]he principle of ‘tacking’ allows [a
claimant] to add its own claims to that of previous adverse possessors under whom
[the claimant] claims a right of possession.”). Given the undisputed evidence in this
record, however, neither theory is sustainable.
[¶31.] Both Sather and Darrel testified in no uncertain terms that they did
not believe they owned the Disputed Area. Though he had unrestricted use of the
Disputed Area, Darrel testified that he did so with Ludwig’s express permission.
Darrel also made clear that he did not intend to acquire Ludwig’s land or keep him
from using it.
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[¶32.] Sather’s testimony at trial was equally assured. He emphatically
disavowed any claim to have owned the Disputed Area. In fact, as Sather and
Darrel contemplated the 1996 sale of Section 10, Sather testified that the two of
them drove over the area in a pickup, and Darrel explained that the use of the
Disputed Area was strictly permissive.
[¶33.] The circuit court found Sather’s testimony on this point not credible,
principally because he had posted “No Trespassing” signs on the east/west fence
along the northern edge of Sections 9 and 10, including one sign located on the
western corner post moved with Ludwig’s permission. But Sather, when
questioned, testified that he posted the signs simply because he wanted to
discourage trespassing hunters who might try to access his property or the
Partnership Property, which, of course, provides access to Section 10. Leaving the
court’s credibility determination to the side for the moment, we believe the court’s
corresponding conclusion—that Sather was continuing to assert ownership
established by an agreement to move the legal boundary—reflects an incorrect
application of what we have sometimes described as the doctrine of acquiescence in
boundaries, or simply the doctrine of acquiescence. See Summit, Inc., 2000 S.D. 29,
¶¶ 19–24, 607 N.W.2d at 27–28.
[¶34.] “The doctrine [of acquiescence] gives an evidentiary presumption as to
the element of hostility and applies even though the occupancy occurred due to
ignorance, inadvertence, or mistake, and without an intention to claim the lands of
another.” Summit, Inc., 2000 S.D. 29, ¶ 22, 607 N.W.2d at 28 (citations omitted).
Central to its operation, as the name suggests, is acquiescence by adjoining
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landowners. But the concept of acquiescence cannot be used to describe a situation
like the one we have here.
[¶35.] Indeed, Ludwig did not acquiesce to anything. By definition, the term
means “[t]o accept tacitly or passively; to give implied consent to (an act)[.]”
Acquiesce, Black’s Law Dictionary (11th ed. 2019) (emphasis added). But Ludwig’s
permission to move the fence was none of these. Instead, he gave Darrel express
permission to move the fence for the specific purpose of avoiding the flood waters of
Bull Creek. And Darrel, for his part, acknowledged that the property enclosed by
the relocated fence still belonged to the Dahlkes.
[¶36.] Though the circuit court conflated them, our decisions distinguish
between permissive use of land and acquiescence to a boundary that eventually
transfers ownership in the affected property. As noted above, “the mere fact that a
landowner allows his neighbor to occupy or use part of his land does not
automatically fix the boundary between them or give the neighbor a right to use or
take the property in perpetuity.” Summit, Inc., 2000 S.D. 29, ¶ 27, 607 N.W.2d at
30 (quoting Finley, 160 Cal. Rptr. at 429). Here, the evidence only indicates Ludwig
allowed Darrel to occupy and use a portion of his land.
[¶37.] Before moving the fence and building a gate on the Disputed Area,
Darrel spoke with Ludwig and requested permission to construct the fence and for
permission to use that land. Darrel described the extent of the use multiple times
throughout his deposition and confirmed that he understood that Ludwig still
owned the land and that Ludwig was acting “neighborly” by granting him
permission to use the land to prevent the fence from being washed out by Bull
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Creek. The patently permissive nature of Darrel’s use cannot be reconciled with the
circuit court’s finding that Darrel and Ludwig moved the fence and created the
Disputed Area intending to move the legal boundary between their parcels of
property. 4
[¶38.] Against this undisputed evidentiary backdrop, we return to the circuit
court’s determination regarding Sather’s “No Trespassing” signs. Even if he were
theoretically inclined to do so, Sather could not convert the unquestionably
permissive use of the land into a hostile one without an “unequivocal act” of
hostility communicated to the record owner. Gangle, 2018 S.D. 55, ¶ 18, 916
N.W.2d at 125; see also Novotny, 2007 S.D. 84, ¶ 7, 737 N.W.2d at 924 (holding,
“adverse ‘possession must be of such hostile, visible and continuous nature as to
give the true owner notice of actual possession and to put him on inquiry as to the
invasion of his rights.’”) (quoting Sioux City Boat Club v. Mulhall, 79 S.D. 668, 117
N.W.2d 92, 96 (1962)).
[¶39.] Here, Sather’s “No Trespassing” signs fall short of the mark, in large
part because they are not fundamentally at odds with the exclusive use of the small
Disputed Area he already had by virtue of permission. And further, no one claims
4. In addition to cases involving the parties’ mutual mistake as to the location of
a property boundary, other jurisdictions have applied the doctrine of
acquiescence when clear and convincing evidence shows “that both parties
recognized the line as a boundary, and not a mere barrier.” Moody v.
Sundley, 868 N.W.2d 491, 499 (N.D. 2015). We have similarly held that
“possession . . . is conclusively presumed to be adverse” when “there has been
acquiescence in a disputed boundary.” Lehman v. Smith, 40 S.D. 556, 168
N.W. 857, 859. But here, of course, there was no such acquiescence.
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that Sather’s “No Trespassing” signs were intended to apply to members of the
Dahlke/Mann family because under no version of the facts were they trespassers.
[¶40.] Under the circumstances, Ludwig’s original grant of permission to
Darrel continued through the subsequent transfer of the Fuoss Property to Sather
and then to Fuoss. The only way the permissive use could change into one of hostile
occupation was if one of the Fuoss Property owners would have put the Partnership
“on inquiry as to the invasion of [its] rights.” See Gangle, 2018 S.D. 55, ¶ 13, 916
N.W.2d at 123 (quoting Novotny, 2007 S.D. 84, ¶ 7, 737 N.W.2d at 924). But that
never occurred. 5
[¶41.] Finally, Fuoss contends on appeal that when Darrel purchased the
Fuoss Property, the original north/south fence—east of the current fence and nearer
to Bull Creek—was also not on the true property line. There was evidence from
other witnesses, principally Brian Lintvedt, that an old fence—the one that
continued to wash out with flooding from Bull Creek—was already west of the true
property line. In Fuoss’s view, this results in a separate sliver of property that was
also acquired through adverse possession.
[¶42.] The circuit court reached the same conclusion and determined that
Fuoss and his predecessors had also adversely possessed the land “between the old
north-south boundary fence and Bull Creek” through acquiescence. (Emphasis
added). The Partnership claims that the distinction is unavailing because there
5. The circuit court also found that the Partnership “never used [the Disputed
Area] for any purpose whatsoever.” But here, we are not concerned with the
record owner’s use of the property. Ludwig and his successors were entitled
to permit the use of the Disputed Area without risking the ironic consequence
that they would be involuntarily divested of ownership.
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was insufficient evidence produced at trial to show that Fuoss satisfied the
elements of adverse possession on the area of land east of the old fence. We agree.
[¶43.] At the outset, we observe that determining whether this narrow sliver
of property actually exists and, if so, where it is located is not possible with this
record. Neither party obtained a survey, and there is no definitive evidence that
could be used to orient a preexisting, old fence to the correct property line. But
more problematic is the fact that there is no separate evidence of adverse possession
relating to the area bounded by an old fence—only that the fence existed. See
Underhill, 2016 S.D. 69, ¶ 11, 886 N.W.2d at 352 (“[T]he parties asserting adverse
possession . . . have the burden of establishing these elements by clear and
convincing evidence.”).
[¶44.] And even if Fuoss were to initially benefit from a presumption that his
predecessors exclusively possessed the narrow strip of land east of the original
fence, see Lewis v. Moorhead, 522 N.W.2d 1, 5 (S.D. 1994), any such presumption
was rebutted by the otherwise uncontested evidence that Darrel or his own
predecessors had permitted the owners of Section 10 to use all of the land west of
Bull Creek. See In re Estate of Dimond, 2008 S.D. 131, ¶ 9, 759 N.W.2d 534, 537–38
(A presumption “does not shift . . . the burden of proof in the sense of the risk of
nonpersuasion[.]”) (alteration and omission in original) (quoting Fed. R. Evid. 301)
(citing SDCL 19-11-1).
[¶45.] In truth, Fuoss’s adverse possession case was not directed at obtaining
title to the narrow strip identified by the circuit court, and the case was not
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developed to feature it. 6 Regardless, Mann testified that the use of the Section 10
land east of the relocated fence was entirely by permission, and perhaps more
importantly, Darrel’s testimony supports the conclusion as well. Darrel specifically
identified the entire Disputed Area extending east to the approximate section line
and confirmed, “That’s Dahlke’s.” 7 In fact, at no point during his deposition did
Darrel distinguish between his ability to use the property east of the original fence
or the relocated fence:
Fuoss’s counsel: And did you know back at the time that you started
using that property east of the fence that some of it
wasn’t actually “included” within the title of the
property that you bought in ’64?
Darrel: Well, where the old fence was, I mean, that’s what
it would be, you know.
Fuoss’s counsel: Okay. So yeah. You knew—
Darrel: I had to have permission to move the fence away
from the creek a little bit.
[¶46.] Finally, while Brian indicated that the old fence was already west of
the true property line, he also indicated, consistent with Darrel’s testimony, that
permission was required to move the fence. He further indicated that use of the
land east of the fence was by permission without providing a distinction between
6. This is likely because any area east of an old fence that fell within the
Partnership Property was not large enough to avoid frequent annual washout
from the floodwaters of Bull Creek. That is, of course, the precise reason
Darrel sought permission from Ludwig to move the fence to the west.
7. The special writing acknowledges this testimony as evidence of a permissive
use as to the land implicated when the Lintvedts moved the fence, but not as
it relates to the narrow strip east of the original fence. However, Darrel’s
acknowledgement that the Dahlkes owned the land east of the fence was not
so restricted or limited.
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the property east of the original fence or the relocated fence in a manner that would
support the elements of adverse possession. Therefore, we must reverse the circuit
court’s additional determination concerning the narrow strip of land at the outer
east edge of the Disputed Area beyond an old fence line.
[¶47.] We conclude that the circuit court erroneously applied the doctrine of
acquiescence when it determined Fuoss had adversely possessed the Disputed Area.
The Partnership, therefore, remains the owner of the land according to the legal
description in its deed.
The Easement Claims
[¶48.] The circuit court granted Fuoss a prescriptive easement over the
Partnership Property to access the west side of the Fuoss Property near Bull Creek.
The easement claim specifically related to a dirt trail or path used by the Fuoss
Property owners that ran across the northeast corner of the Partnership Property,
through the hay yard, and into the Disputed Area.
[¶49.] “The elements that a claimant must prove to establish a prescriptive
easement serve to protect the servient land owner by providing [the servient land
owner] with notice of a prescriptive right.” Helleberg, 2020 S.D. 27, ¶ 22, 943
N.W.2d at 843–44 (quoting Novotny, 2007 S.D. 84, ¶ 14, 737 N.W.2d at 926–27).
Similar to adverse possession claims, a claimant for a prescriptive easement must
show “an open, continued, and unmolested use of the land in the possession of
another for the statutory period of 20 years.” Id. ¶ 18, 943 N.W.2d at 842 (quoting
Rotenberger v. Burghduff, 2007 S.D. 19, ¶ 8, 729 N.W.2d 175, 178). The claimant
must also show that “the property is being used ‘in a manner that is hostile or
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adverse to the owner.’” Id. (quoting Rotenberger, 2007 S.D. 19, ¶ 8, 729 N.W.2d at
178). Like adverse possession, “a use that is merely permissive and not adverse to
the interests of the property owner will not become a prescriptive easement.”
Thompson v. E.I.G. Palace Mall, LLC, 2003 S.D. 12, ¶ 7, 657 N.W.2d 300, 304.
[¶50.] As with the adverse possession issue above, the only part of the
prescriptive easement analysis in dispute here is the element of hostility. The
circuit court found that Darrel’s use of the trail through the hay yard was not
permissive, but hostile to the Partnership. Again, we disagree.
[¶51.] The only direct evidence regarding access through the Partnership
Property outside of the Disputed Area was the testimony of Darrel, whose testimony
cannot be fashioned into a claim of hostile use over the access route through the
Partnership Property. Darrel did, however, describe his use of the access route in
different terms than the express permission Ludwig had granted for the relocated
fence.
[¶52.] As it related to access to the south part of Section 10 on the west side
of Bull Creek, Darrel’s testimony establishes that his predecessor owner had
already been using the Section 9 approach west of the fence for access through a let-
down gate:
Mann’s counsel: And when you say the “fence letdown,” because you
had already asked Dahlke whether you could let
the fence down and access it. And he was fine with
that, wasn’t he?
Darrel: Well, yeah. I mean, there was already a letdown
there that he had. Or somebody had before.
Mann’s counsel: That he used.
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Darrel: Maybe before. I don’t know.
Mann’s counsel: And so you had done that – you already had
permission and the ability to go through that
because there was a letdown or a gate, and then
Dahlke had given you that permission, hadn’t he?
Darrel: Well, yeah. Yeah. I mean, he had no objection to
me putting the dam in over there on my side.
[¶53.] At most, Darrel was uncertain of the origin of the authority to access
his land through the Partnership Property, but the deposition testimony establishes
that he regarded it as permissive. Indeed, in the full context of Darrel’s testimony,
that is why he asked Ludwig for permission to improve the let-down gate to allow
easier access. Brian’s testimony is consistent on this point:
Mann’s counsel: And did you travel through that let-down?
Brian: Yes, I did, all the time.
Mann’s counsel: Was it your understanding that the Dahlkes or the
Manns gave you permission to go through that let-
down?
Brian: Yes.
Mann’s counsel: Yes?
Brian: Yes, I did.
[¶54.] The special writing overstates the utility of a presumption that a
possessor’s use is hostile and relies too heavily upon the observation that Darrel did
not specifically state that his access through Section 9 was by permission. This
view reallocates the burden of proof and effectively relieves Fuoss of his obligation
to prove all the elements of a prescriptive easement, including hostility.
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[¶55.] In order to rebut any presumption of a hostile use, Mann needed only
to present evidence that the access was permissive. See Dimond, 2008 S.D. 131,
¶ 9, 759 N.W.2d at 537–38 (holding the test for rebutting a presumption “should not
ordinarily be equated with meeting any particular burden of proof” and is sufficient
when the presumption is “met with such evidence as a trier of fact would find
sufficient to base a decision on the issue, if no contrary evidence was submitted”)
(emphasis added). If nothing else, Brian’s testimony that he traveled through the
Partnership Property with permission “all the time” was surely sufficient to do that,
eliminating any presumption and requiring Fuoss to prove the use was hostile.
When Fuoss’s burden is set in its correct context, the failure to establish through
Darrel or any other witness that the use was historically hostile is a fatal void in
the proof. Indeed, the single most conspicuous feature of this record is that none of
Fuoss’s predecessors ever regarded their use of Section 9 as adverse to the
ownership interests of their Dahlke neighbors.
[¶56.] The circuit court also granted Fuoss both an easement implied from
prior use and an easement by necessity. 8 To obtain an easement implied from prior
use, a claimant must establish four elements:
8. The circuit court erred in finding an easement by necessity. This type of
implied easement arises when a grantor conveys an inner portion of land that
is surrounded by land owned by the grantor or other successor owners. The
easement of necessity implied by law will entitle a landlocked grantee to a
right-of-way across the grantor’s retained land for purposes of ingress and
egress. Springer v. Cahoy, 2013 S.D. 86, ¶ 8, 841 N.W.2d 15, 19. Here, the
Fuoss Property is not landlocked. Although an easement across the
Partnership Property would make access to the westernmost portion of the
Fuoss Property more convenient, Fuoss has not established it is necessary
due to a lack of a potential point of access. Others in the area, including
(continued . . .)
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(1) the relevant parcels of land had been in unitary ownership;
(2) the use giving rise to the easement was in existence at the
time of the conveyance dividing ownership of the property;
(3) the use had been so long continued and so obvious as to show
that it was meant to be permanent; and
(4) at the time of the severance, the easement was necessary for
the proper and reasonable enjoyment of the dominant tract.
Heumiller v. Hansen, 2020 S.D. 56, ¶ 16, 950 N.W.2d 426, 430 (quoting Springer v.
Cahoy, 2012 S.D. 32, ¶ 7, 814 N.W.2d 131, 133). “A party seeking an implied
easement has the burden of proving the existence of the easement by clear and
convincing evidence.” Springer, 2012 S.D. 32, ¶ 7, 814 N.W.2d at 134 (citation
omitted).
[¶57.] The circuit court found that all four elements required for an easement
by implication from prior use had been satisfied. Even if the court were correct as
to elements one and four, 9 there is no evidence to sustain the court’s determination
that “the use giving rise to the easement was in existence at the time of conveyance”
and “had been so long continued and so obvious as to show that it was meant to be
permanent[.]” Id. ¶ 7, 814 N.W.2d at 133.
[¶58.] On this point, the circuit court relied on a 1948 aerial photograph of
the area, finding it showed an access trail to Section 10. There are reasons in the
________________________
(. . . continued)
Fuoss’s neighbor to the south, have constructed a means of access across Bull
Creek using large drainage pipes.
9. We make no determination in this regard.
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record to question the accuracy of this specific finding, 10 but even if the court were
correct, the legal test for an implied easement by prior use requires more than
simply a trail’s existence, and on this point of law, the circuit court erred by not
applying the entire third requirement of our accepted test for easements implied by
prior use.
[¶59.] Indeed, being able to detect a trail from an aerial photograph high
above the ground is not the same thing as being “so obvious as to show that it was
meant to be permanent[.]” Heumiller, 2020 S.D. 56, ¶ 16, 950 N.W.2d at 430. The
circuit court’s only relevant determination on this requirement was simply a
conclusion that restated the element itself. But the existence of a prior use does not
necessarily equate to an easement by prior use. Our accepted test requires more,
including evidence and findings about the relative obviousness of the use and
whether it was meant to be permanent. This obvious quality is particularly
important and impactful because it serves to impute an unstated intent to a
previous, and remote, landowner who did not testify and may well no longer be
alive.
[¶60.] In the end, a court’s decision to grant an implied easement by prior use
represents an exceptional circumstance in which the court imposes a servitude upon
an owner’s land where the parties have not arranged for an express easement
10. The 1948 photograph was not interpreted by an expert, and none of the lay
witnesses could definitively identify it as an access trail to Section 10. Darrel
did identify a trail, but he attributed it to tracks from a historic wagon route
that existed west of Bull Creek, as did Mann. Ironically, Fuoss, who located
the photograph online, testified that the distinctive line in the photograph
represented a fence line—not an access trail from the west.
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through more conventional means. For this reason, the implied easement by prior
use remedy is best reserved for those instances where it is necessary to confirm the
discernible intent and expectation of the parties. Here, there was no such intent or
expectation associated with a trail over the Partnership Property and the circuit
court’s decision to grant an easement implied by prior use was not justified.
Conclusion
[¶61.] We conclude that the circuit court erred when it determined that Fuoss
acquired title to the Disputed Area by adverse possession. The court incorrectly
applied the doctrine of acquiescence to the facts here and further committed clear
error by rejecting uncontroverted evidence of permissive use by Fuoss’s
predecessors in interest. For much the same reasons, we further hold that the court
erred by granting Fuoss a prescriptive easement allowing access to his land through
the Partnership Property. The access easement is also not authorized as an
easement implied by prior use or necessity. We reverse and remand for the court’s
consideration of Mann’s counterclaim for fencing, which the court did not previously
address given its adverse possession and easement rulings.
[¶62.] JENSEN, Chief Justice, and MYREN, Justice, concur.
[¶63.] KERN and DEVANEY, Justices, concur in part and dissent in part.
DEVANEY, Justice (concurring in part and dissenting in part).
[¶64.] I agree that based on the evidence in the record, Darrel’s use of the
Disputed Area from the old north/south fence to the new fence originated from a
grant of permission and the grant of permission continued through the subsequent
transfers of the property to Sather and then to Fuoss. However, I believe it is
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important to highlight that while questioning the witnesses, Darrel in particular,
each side used terminology in line with their respective positions to recharacterize
the witnesses’ responses as to the nature of the agreement reached with Ludwig. It
was further apparent that Darrel was generally inclined to agree with the leading
questions posed to him. Nevertheless, Darrel testified, in response to a nonleading
question counsel posed on cross-examination asking him who owned the ground on
the east side of the relocated fence, that this land was the Dahlkes’. Therefore, I
would conclude that the circuit court erred in finding that Darrel’s possession of the
property was hostile.
[¶65.] I would also conclude that the evidence does not support a finding that
Darrel’s permissive use of the property changed into one of hostile possession
during Sather’s ownership of the property, even if this Court defers to the circuit
court’s finding that certain testimony from Sather lacked credibility. As Gangle
requires, “[t]he law is very rigid with respect to the fact that a use permissive in the
beginning can be changed into one which is hostile and adverse only by the most
unequivocal conduct on the part of the user.” 2018 S.D. 55, ¶ 18, 916 N.W.2d at 125
(citation omitted). The only evidence that could conceivably be considered an
“unequivocal act” that put the Partnership on notice that Sather was, unlike his
predecessor, claiming ownership rights in the property was his posting of a “No
Trespassing” sign on the property. Although such a sign posted on another’s
property could be indicative of an assertion of an ownership right, here, Sather
posted the sign at the only approach off Bull Creek Road that could be used by those
who wanted to access Sather’s property on the west side of Bull Creek. Given these
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circumstances, I agree this could not be construed as an “unequivocal act” such that
Sather’s otherwise permissive use of the property became hostile. See id.
[¶66.] Therefore, I join the majority opinion in as much as it reverses the
circuit court’s determination that Fuoss acquired title to the parcel of land up to the
relocated fence by adverse possession. I also agree that because the Fuoss Property
is not landlocked, there can be no easement by necessity.
[¶67.] However, I disagree with the majority opinion’s determination that the
circuit court erred in concluding that Fuoss established the elements of adverse
possession to the Disputed Area from the legal boundary to the old north/south
fence and erred in concluding that he established the existence of a prescriptive
easement and an easement implied by prior use. In my view, the majority opinion
fails to adhere to our deferential, clearly erroneous standard of review on appeal
when reviewing the circuit court’s ruling as it relates to these particular claims.
Rather than viewing the evidence “in a light most favorable to the court’s findings,”
the majority opinion ignores evidence that supports the circuit court’s findings, fails
to give due regard to the court’s ability to observe the witnesses and evidence
firsthand, and in some instances, even ignores the existence of the circuit court’s
findings relevant to these issues. See Bruggeman v. Ramos, 2022 S.D. 16, ¶ 51, 972
N.W.2d 492, 509–10 (emphasis added) (quoting Cowan v. Mervin Mewes., Inc., 1996
S.D. 40, ¶ 15, 546 N.W.2d 104, 109). Because, in my view, a review of the entire
evidence does not lead to a definite and firm conviction that a mistake has been
made, I would, for the reasons explained below, affirm the circuit court’s
determinations that Fuoss established the elements of adverse possession to the
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narrow strip of land between the legal boundary and the old north/south fence and
also established the existence of a prescriptive easement and an easement implied
by prior use.
Adverse Possession of Land Bounded by the Old Fence
[¶68.] The majority opinion initially rejects the circuit court’s determination
that Fuoss and his predecessors adversely possessed, through acquiescence, the
narrow sliver of land between the legal boundary and the old north/south fence
because, in the majority opinion’s view, “determining whether this narrow sliver of
property actually exists and, if so, where it is located is not possible with this
record.” But the circuit court actually entered findings, supported by evidence in
the record, depicting the location of the fence in the 1960s or early 1970s. In
particular, Brian testified to where the old north/south fence was located and drew
a line depicting the old fence on Mann’s exhibit 16A that runs from the easternmost
edge of the new gate to the current gate allowing access to Fuoss’s property. The
circuit court found Brian credible on this point, and neither the Partnership nor the
majority opinion has established that this finding is clearly erroneous.
[¶69.] There is also evidence supporting that a location other than the old
fence is the legal boundary. In that regard, the circuit court found that the
Township’s plat map, admitted as an exhibit at trial, shows the legal boundary as a
straight north/south line generally consistent with the straight-line grid platting of
the entire county and further found that “[i]t is obvious that the fence has never
been right on the section line.” Again, the Partnership has not shown clear error in
these findings. Moreover, although the precise location of the legal property line is
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not in the record, the circuit court’s judgment ordered that a survey may be
completed at Fuoss’s expense to determine “the line of division and the legal
description” of the land adversely possessed. Therefore, contrary to the majority
opinion’s view, it is possible to orient the location of the old north/south fence to a
correct property line.
[¶70.] Nevertheless, the majority opinion further concludes reversal is
necessary as it relates to this narrow strip of property because “there is no separate
evidence of adverse possession relating to the area bounded by an old fence—only
that the fence existed.” This assertion ignores the relevant testimony from Darrel
regarding his use of this property and his belief that the old north/south fence was
the property line between his and Ludwig’s properties. In particular, when Darrel
was asked whether the property east of the old fence was included within the title of
the property he purchased, he replied that “where the old fence was, I mean, that’s
what it would be[.]” He then explained that he had to have permission to move the
fence away from the creek. The majority opinion also quotes this testimony after
contending that Darrel never distinguished “between his ability to use the property
east of the original fence or the relocated fence[.]” But when this testimony is
considered in a light most favorable to the court’s findings, as required under our
standard of review, Darrel’s use of the word, “it,” reasonably refers to what he
believed to be his property—the boundary of which he identified as the old fence.
[¶71.] In light of Darrel’s testimony, the record thus supports the circuit
court’s findings that the land between Bull Creek and the old fence line “was
protected by a substantial enclosure, i.e., the fence serving as the boundary between
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Darrel Lintvedt’s property and the adjoining landowner’s property when Darrel
Lintvedt purchased the subject property in the mid-1960’s.” The record further
supports the court’s finding that Darrel openly and notoriously occupied this strip of
property for over twenty years.
[¶72.] As to whether Darrel’s occupation of this property was under a claim of
title exclusive of any other right, this Court in Underhill explained that “[t]his
element does not require wrongful intent on the part of the adverse possessor.”
2016 S.D. 69, ¶ 17, 886 N.W.2d at 354. Rather, “[p]ossession of property is adverse
to the true owner . . . even though such occupancy . . . was due to mistake and
without an intention to claim the land of another.” Id. (omissions in original)
(quoting Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506
N.W.2d 138, 141 (S.D. 1993)). Here, Darrel’s testimony indicates that he treated
the old fence line as the property line and he only sought permission from Ludwig
when he wanted to move the northernmost portion of this fence onto a portion of
Ludwig’s property. And there is no testimony in the record from Darrel, or from his
predecessor, Leo Nichols, indicating that they had been occupying the property up
to the old fence line by permission.
[¶73.] Despite the fact that Darrel was the only witness who could testify
with firsthand knowledge as to this issue, the majority opinion relies on Mann’s
testimony to determine that all the land east of the relocated fence was used with
permission. But Mann was not even born at the time Darrel asked permission from
Ludwig (Mann’s grandfather) to relocate the fence, and Mann had no firsthand
knowledge regarding the status of the land east of fence before it was relocated.
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Similarly problematic, the majority opinion finds that such use was permissive
because Brian did not provide “a distinction between the property east of the
original fence or relocated fence” when he indicated that the use of the land east of
the fence was by permission. Like Mann, Brian was not present when his father
talked to Ludwig about permission to move the existing fence. Moreover, the
majority opinion, which focuses only on Brian’s responses to leading questions by
Mann’s counsel, does not acknowledge Brian’s response to a question by Fuoss’s
counsel whether “anybody ever [told him] during the 20 odd years that [he was]
down there that that was Mann’s property east of the fence and that [he was] just
using it with their permission[.]” To this question, Brian responded, “I wasn’t even
aware of that. I always thought it was just part of our pasture[.]”
[¶74.] Of further note, the majority opinion seems to suggest an alternative
basis to reverse the circuit court as it relates to this property. It contends that
“Fuoss’s adverse possession case was not directed at obtaining title to the narrow
strip identified by the circuit court, and the case was not developed to feature it.”
But Fuoss proposed findings and conclusions on this issue, seeking a ruling in his
favor; thus, it is not appropriate for this Court—an appellate court—to determine
that the truth of a party’s claim does not include the party’s specific request for
relief.
[¶75.] Even if this Court has doubts about whether the evidence supported
the circuit court’s findings, our standard of review requires that we resolve those
doubts “in favor of the successful party’s version of the evidence[.]” Gartner v.
Temple, 2014 S.D. 74, ¶ 8, 855 N.W.2d 846, 850 (quoting In re Estate of Olson, 2008
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S.D. 97, ¶ 9, 757 N.W.2d 219, 222). We must also resolve doubts in favor “of all
inferences fairly deducible” from the evidence that “are favorable to the court’s
action.” Id. Because a review of the record supports the circuit court’s findings of
fact, I would affirm the court’s determination that Fuoss gained title to the property
between the legal boundary and the old north/south fence by virtue of Darrel’s
adverse possession of this property. See Underhill, 2016 S.D. 69, ¶ 16, 886 N.W.2d
at 354 (holding that “adverse possession occurs by operation of law and does not
require an action to commence it, nor to continue it” (citation omitted)).
Prescriptive Easement
[¶76.] The majority opinion correctly identifies what Fuoss was required to
prove to establish a prescriptive easement on the Partnership Property affording
access to the Fuoss Property on the west side of Bull Creek. However, the majority
opinion does not include the law providing that once a party shows “an open and
continuous use of another’s land with the owner’s knowledge,” the party asserting a
prescriptive right has made a prima facie case and there arises “a presumption that
such use is adverse and under a claim of right.” Thompson, 2003 S.D. 12, ¶ 8, 657
N.W.2d at 304. Here, it is undisputed that Fuoss and his predecessors have openly
and continuously used an approach off Bull Creek Road and a corresponding trail
on the Partnership Property to access the Fuoss Property with the Partnership
owners’ knowledge. Thus, the Partnership bore the burden of rebutting the
presumption with “proof that the use was by permission or not under a claim of
right.” See id. The circuit court rejected the Partnership’s claim that the use was
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merely permissive as a matter of fact and law and concluded that Fuoss had met his
burden of proving the existence of a prescriptive easement.
[¶77.] On appeal, in what seems to be an acknowledgement of the lack of
evidence establishing that Darrel’s use of the trail was only by permission, the
Partnership asserts that permission was “intrinsically sought” when Darrel
requested to install a gate in the relocated north/south fence. But in Vivian Scott
Trust v. Parker, we explained that the defendant must present evidence of
permission to prevent the creation of a prescriptive easement and absent such
evidence a prescriptive right is created. 2004 S.D. 105, ¶ 8, 687 N.W.2d 731, 734.
In a similar fashion, rather than identify in what manner the circuit court clearly
erred in rejecting the Partnership’s claim that the use was permissive, the majority
opinion analyzes the evidence anew and deems Darrel’s testimony relating to the
permission he sought to move the fence and install a new gate to mean that he was
also seeking permission to use the already existing trail on the Partnership
Property for ingress and egress to his property. But “our role as a reviewing court
forbids us from considering the evidence anew and acknowledges a trial court’s
preeminent role in weighing the evidence.” Flint v. Flint, 2022 S.D. 27, ¶ 40, 974
N.W.2d 698, 705.
[¶78.] Darrel never testified that he sought permission to use the approach
and the trail to access his property, and the majority opinion cites no testimony to
support such a conclusion or to support a determination that the circuit court
clearly erred. In fact, after quoting Darrel’s responses to questions from Mann’s
counsel, the majority opinion concedes that “[a]t most, Darrel was uncertain of the
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origin of the authority to access his land”—a concession which supports a conclusion
that Darrel’s open and continuous use of this access trail with the Dahlkes’
knowledge was not by permission.
[¶79.] Nevertheless, the majority opinion then states that the full context of
Darrel’s deposition testimony establishes that he regarded his use of this trail as
permissive. On this point, I respectfully disagree. Most relevant to the access
issue, Mann’s counsel asked Darrel, after referring to Darrel’s use of the access
through the Dahlkes’ property, “And did you talk to him at all about being able to
drive in there even when you were putting the fence down before you put the new
fence in?” (Emphasis added.) Darrel answered, “Well, no. I asked him if we could
put a gate in because that’s the only way you could get in there on that side.”
(Emphasis added.) Then, when asked why he felt the need to ask him about putting
in a gate, Darrel responded, “Well, because that fence would have been moved a
little bit. And it was up against his hay yard right there and stuff, and I didn’t
want to put it in without his permission.” A fair reading of this testimony is that
the only time he sought permission was when he wanted to move the fence farther
into the Dahlkes’ hay yard and put in a gate. He did not testify that he sought
permission to use the approach and existing trail to enter his property.
[¶80.] Brian Lintvedt likewise testified that even before moving the fence and
putting in the gate, they had already been accessing their property through the
Dahlkes’ approach and the let-down in the existing fence because there was not an
approach through which they could access the west side of Bull Creek from their
own property. As noted above, Brian testified that he was not present when his
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father sought permission from Ludwig to move the fence and replace the let-down
with a gate, so Darrel’s testimony is more significant as to the nature of their use of
the access trail. Yet, despite this testimony from both Darrel and Brian supporting
the circuit court’s determination that Fuoss met his burden of proof, the majority
opinion focuses on whether there was some contrary evidence to rebut the
presumption of an adverse use based on one exchange at the end of Brian’s cross-
examination wherein he agreed with Mann’s counsel’s characterization of the use of
the let-down in the fence as permissive. Notably, prior to this particular exchange,
Mann’s counsel specifically elicited Brian’s agreement as to the “three areas of
permission” sought by Darrel, none of which included permission to use the
approach through the Dahlkes’ property. Instead, the three things counsel
identified were the permission to move the fence farther west, to use the land on the
east side of this fence, and to put a gate in so they would not “have to use the let-
down anymore[.]” (Emphasis added.)
[¶81.] Instead of searching for evidence that does not support the circuit
court’s findings, our well-settled standard of review requires this Court to examine
the evidence in its totality and all reasonable inferences in a light most favorable to
the circuit court’s findings. Because there is evidence supporting the circuit court’s
finding that Darrel’s use of this trail for well over twenty years was not merely
permissive and that Fuoss met his burden of proving the existence of a prescriptive
easement by clear and convincing evidence, the Partnership has not established
that this finding by the circuit court was clearly erroneous. I would therefore affirm
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the circuit court’s determination that Fuoss established the existence of a
prescriptive easement by clear and convincing evidence.
Implied Easement by Prior Use
[¶82.] The majority opinion reverses the circuit court’s ruling on this claim
because, in the majority opinion’s view, “[t]here are reasons in the record to
question the accuracy” of the court’s finding that a 1948 aerial photograph showed
that an access trail existed at the time of conveyance. The majority opinion goes on
to conclude that even if the circuit court’s observations from the photo “were
correct,” there was “no evidence to sustain the court’s determination” that Fuoss
established the second and third elements of the test for easements implied by prior
use or that “being able to detect a trail from an aerial photograph high above the
ground is not the same thing as being ‘so obvious as to show that it was meant to be
permanent.’” I respectfully disagree with this assessment of the evidence.
[¶83.] Even without deferring to the circuit court’s observations of the 1948
aerial photograph, an independent review of the photo clearly shows a well-worn
trail leading from Bull Creek Road down to the southern portion of what is now the
Fuoss Property. The fact that it can be identified from so “high above” supports a
finding that in 1948 it was a well-used trail. Also, this trail indisputably coincides
with other more current photographs admitted at trial showing the approach into
the Partnership’s hay yard and the access trail along the fence line at issue. And
although he was not presented with the 1948 photograph during his deposition
testimony, Darrel noted that there was a wagon trail that went from the southern
part of his property west of Bull Creek on up to the Dahlkes’ property. Moreover, he
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and multiple other witnesses testified to the use, up to the present day, of this
approach and trail to access the west side of Bull Creek.
[¶84.] Further, when shown the 1948 photograph, Mann expressed his belief
that the trail shown in the photo was likely the old wagon trail. Given that wagons
would have traveled on this trail long before 1948, it can be reasonably inferred that
at the time the Hullingers severed the unity of title and conveyed the separate
parcels of property in 1948, the trail had been “so long continued and so obvious as
to show that it was meant to be permanent[.]” See Thompson, 2003 S.D. 12, ¶ 14,
657 N.W.2d at 305.
[¶85.] When the evidence is examined in a light most favorable to the circuit
court’s findings, I am not left with a firm conviction that the circuit court clearly
erred in determining that Fuoss established an easement implied from prior use by
clear and convincing evidence. I therefore would affirm the circuit court’s ruling on
this claim.
[¶86.] KERN, Justice, joins this writing.
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