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03-10-2005, 07:02 AM
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#1 |
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South Dakota Court Decision flies in the face of reason
South Dakota Supreme Court
ARLEY RANCOUR AND ALAMARIE RANCOUR v. GOLDEN REWARD MINING COMPANY, L.P., 2005 SD 28 Opinion Filed On Wednesday, March 02, 2005 ARLEY RANCOUR AND ALAMARIE RANCOUR, Plaintiffs and Appellants, v. GOLDEN REWARD MINING COMPANY, L.P., Defendant and Appellee. [2005 SD 28] South Dakota Supreme Court Appeal from the Circuit Court of The Fourth Judicial Circuit Lawrence County, South Dakota Hon. Warren G. Johnson, Judge JOHN R. FREDERICKSON Deadwood, South Dakota THOMAS E. ADAMS Deadwood, South Dakota KAREN ADAMS Legal Intern Attorneys for plaintiffs and appellants. GARY D. JENSEN of Beardsley, Jensen & VonWald Rapid City, South Dakota Attorney for defendant and appellee. Considered on Briefs on January 10, 2005 Opinion Filed 3/2/2005 #23211 ERICKSON, Circuit Judge [¶1.] Landowners near Lead, South Dakota, sought a judgment declaring that they enjoy a prescriptive easement over roadways on property owned by a mining company. The trial court found in favor of the mining company, holding that the landowners' use of the roadways was permissive. We affirm. FACTS [¶2.] Leaving Lead, South Dakota, southwest on US 85/14A a driver descends a long winding hill past various businesses and a portion of the Mickelson Trail. Approximately two miles down Highway 85 on the east side of the road, in an area commonly known as Ruby Flats, Arley and Alamarie Rancour (Rancours) purchased 147 acres of undeveloped property. This is an area of old mining claims nestled below Sugarloaf Mountain. For over one hundred years the primary access to this property has been from two roads - first, what is now designated Old Abandoned Highway 85 and, secondly, over what is known as the Powder House Road (collectively Roads). The Roads traverse property owned by Golden Reward Mining Company (Golden Reward) before crossing over the Rancour property. Powder House Road continues across the Rancour property and then back onto property owned by Golden Reward. [¶3.] The Roads are private, generally not maintained, partly asphalt and partly gravel roadbeds. Except for these old roadbeds, three vacant powder houses and an idle gravel pit, the parties agree the property is forested and undeveloped. Over the years the Roads have been used by the general public for a variety of recreational uses, including snowmobiling, four-wheeling, hunting, and mountain biking. The public has traveled the Roads through both the Golden Reward and Rancour properties without objection from either party. [¶4.] In 1999 Arley Rancour met with Jim Lessard, Golden Reward's Land and Exploration Manager, to inform him that he intended to commence logging on his property, which meant he would be driving logging trucks on the Roads. Rancour testified that Lessard told him that if he intended to use the Roads he must fix a gate at the nearby gravel pit. Lessard remembers this exchange differently. While he does not indicate his response, Lessard testified he went to Golden Reward's General Manager and suggested they ask Rancours to fix the gate in exchange for damages incurred on the Roads from logging activity. Rancours rejected this request and instead brought this action seeking a judgment declaring they held a prescriptive easement over the Roads. STANDARD OF REVIEW [¶5.] The trial court's findings of fact will not be set aside unless clearly erroneous. Kokesh v. Running, 2002 SD 126, ¶ 10, 652 NW2d 790, 793. "Clear error is shown only when, after a review of all the evidence, 'we are left with a definite and firm conviction that a mistake has been made.'" Id. (citing New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 NW2d 202, 204). "The trial court's findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them." Id. (citing Lewis v. Moorhead, 522 NW2d 1, 3 (SD 1994)). "Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court's conclusions of law." Id. (citing Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 NW2d 414, 416). ISSUES Whether the trial court erred in determining Rancours' use of the roadway was permissive. Whether the trial court erred in determining Rancours' use of the roadway was not exclusive. ANALYSIS ISSUE ONE [¶6.] Whether the trial court erred in determining Rancours' use of the roadway was permissive. [¶7.] Under South Dakota law a prescriptive easement arises "from use of another's land adverse to the owner of that land or that owner's interest in the land against which a servitude is sought." Thompson v. E.I.G. Palace Mall, LLC, 2003 SD 12, ¶ 6, 657 NW2d 300, 303. The claimant of a prescriptive easement must meet a two pronged test by clear and convincing evidence: First, the claimant must show "an open, continued, and unmolested use of the land in the possession of another for the statutory period . . . of 20 years." Id. Second, the claimant must prove that the use of the property is "in a manner that is hostile or adverse to the owner." Id. ¶ 7. Golden Reward concedes Rancours used the Roads for ingress and egress to their property for over twenty-one years. Therefore, Rancours satisfy the first prong of this test and we turn to the second prong. [¶8.] The hostile or adverse requirement under South Dakota law requires that the claimant's use be to the "physical exclusion of all others under a claim of right." Id. Generally, a prima facie showing of open and continuous use of the land owner's property with the owner’s knowledge creates a presumption that the claimant's use is adverse and under a claim of right. Vivian Scott Trust v. Parker, 2004 SD 105, ¶ 6, 687 NW2d 731, 734. Even when a prescriptive easement is presumed, the land owner may rebut the presumption of adverse possession with proof that the use was by permission or not under a claim of right. Id. [¶9.] However, "when one claims an easement by prescription over wild or unenclosed lands of another, mere use of the way for the required time is not generally sufficient to give rise to a presumption that the use is adverse." Cox v. Cox, 373 P2d 929, 934 (Idaho 1962). The passageway over unenclosed and unimproved land is deemed permissive. Id. The reason for this rule is that it "assumes the owner of such land in many instances will not be in position to readily detect or prevent others from crossing over his land, and, even if he did, he might not enter any objection because of a desire to accommodate others and because such usage resulted in no immediate damage to him." Id. Additionally, "in such instances the landowner would probably have no reason to think the users of the passageway were attempting to acquire any adverse right." Id. While Rancours made a prima facie showing concerning open, continued and unmolested use of Golden Reward's property, the trial court found that the lands were wild and therefore any use was presumed to be permissive and that Rancours had failed to rebut the presumption of permissiveness. This finding was not clearly erroneous. [¶10.] In this case, both Rancours and Golden Reward operated for many years under the mistaken belief that Rancours and the general public had a right to traverse the Roads. Karl Emanuel, Golden Reward's former Chief Geologist, testified that Golden Reward knew the Roads had been used for the last 110 years by the public. He also indicated that abutting landowners had used the property for access over that same time frame for the same purpose. More importantly, Lessard testified that while permission was never expressly given, it was Golden Reward's policy that the general public could use the Roads because it was too difficult and expensive to police the activity, no damage was being done and given the nature of the public use it was good public relations to allow the access to continue. Therefore, Rancours have failed to rebut the presumption of permissive use. ISSUE TWO [¶11.] Whether the trial court erred in determining Rancours' use of the roadway was not exclusive or adverse. [¶12.] The trial court found Rancours' use of the property was not sufficient to give Golden Reward notice that the use was adverse to its interests and that Rancours' use did not physically exclude all others from the Roads. The record established that Rancours' property remained undeveloped. Moreover, Rancours entered the property on average once a month, primarily for recreational purposes and then in the winter to harvest Christmas trees for sale. Under the circumstances of this case, Rancours failed to show that their use of the Roads was distinguishable from the uses made by the general public and was sufficient to put Golden Reward on notice that Rancours' use was different than that of the general public. Thus, the trial court correctly concluded that Rancours failed to show that their use was to the "physical exclusion of all others under a claim of right." Thompson, 2003 SD 12, ¶ 7, 657 NW2d at 304. [¶13.] Affirmed. [¶14.] ERICKSON, Circuit Judge, for SABERS, Justice, disqualified. [¶15.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur. http://www.sdjudicial.com/index.asp?...=3&record=1393 |
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03-12-2005, 01:54 AM
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#2 | |
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I don't understand why you think this decision flies in the face of reason.
The law in South Dakota was clear - to gain the prescriptive easment, they had to prove continuous use that was adverse. The proved it was continuous, but not that it was adverse. So there is no easement. (The sheer fact that you use a piece of property for X number of years, as the court noted, does not, of itself, prove adverse use). If you can't prove what the law requires, you lose the case. So where is the lack of reason? Plez Quote:
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03-16-2005, 11:57 PM
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#3 |
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agreed; when I read the posted trial summary, my first thought was "what's flying in the face of reason??" It seems a very clear-cut, and properly decided, case.
One wants to be careful of trampling on fundamental private-property rights. Someday, one will own land of one's own; and then one will gain a VERY different perspective on these things. It sure turned my head around when I got my first 40 acres...
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03-18-2005, 08:45 AM
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#4 |
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I think where you folks aren't getting it is on 2 levels. First of all, I reject the assumption that the use was permissive only. There is easily shown continuous use, and the "adverse" assumption is clearly wrong. The owners of the property had to know the use was going on by the Rancours, and the ruling that the road in question was wild is ludicrous. The court acknowledges the fact that there is a road made up of gravel, old asphalt and other roadbed, and this can plainly be seen in a photo of the road, which I will post.
Also, as we have discussed here before, private property or not, access is the key. If no one is venturing off the road and tearing stuff up, historical and necessary access should not be a problem. Its called being a good neighbor. Case in point, my property. A couple years ago I bought land that has been vacant forever, and abuts BLM managed land. People have gone thru the land I now own for access for many years, as far as I know. There is a single track motorcycle trail that leads to a larger 2 track trail on the top of the ridge behind my house. I don't have a problem with you accessing this trail, just as long as you dont' tear stuff up, and stay on the single track until you get into the wash that leads up to the ridge. Its called being a good neighbor. The road in the lawsuit, hardly wild: 
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03-18-2005, 01:25 PM
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#5 |
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I think that YOU are not "getting it."
If the use was permissive, then it is not adverse. The case is quite clear - there was a court finding, not an assumption, but a FINDING OF FACT, that the use of the road was permissive. Black's Law Dictionary - ADVERSE - opposed; contrary; in resistance or opposition to a claim, application or proceeding. Having opposing interests; having interests for the preservation of which opposition is essential. Use of land is "adverse," as against owner, if it is not made in subordination to him, is open and notorious and is not wrongful as to him; "adverse" means that one making use shall not recognize in those as against whom it is claimed to be adverse an authority either to prevent or to permit its continuance, and refers to nonrecognition of such authority at time use is made." Where you're really going wrong is your assumption that continuous use creates an adverse condition. In most states, it does not. In a few states, by their statutory law, you can create a prescriptive easement by continuous use. South Dakota is not one of them, as is made clear in the case report you posted. This isn't a case about whether a road is "wild" or not. It's about whether or not legally there was adverse possession sufficient to create a right of use on the road. The court made findings of fact and a ruling of law in accord with those findings. In this instance, there was not an adverse possession sufficient to create the right. The fact that you don't happen to like the result doesn't mean it is lacking in reason. Contrary to your statement, access is NOT the key. The key is the law of the jurisdiction, and the individual facts of a particular case in the light of that law. Anyone who assumes that "if we used it for awhile, we have a right to use it forever" is ignorant of the law. |
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03-18-2005, 01:28 PM
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#6 | |
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Quote:
I do get it, and obviously you don't. By the way, I have a copy of Black's on the shelf right in front of me, I work in the legal profession. Are you Bat Shit with yet another user name? Must be. I'm done with you, dumbass. Last edited by landusepbb; 03-18-2005 at 01:29 PM. |
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03-18-2005, 02:47 PM
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#7 |
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Actually, I am an attorney in private practice in Colorado, as well as being a Professor of Law at a private law school.
If you really do have Black's on the shelf, then you can read for yourself that my quotation was accurate, and that my statement of what is and what is not "adverse" is legally and factually correct. Perhaps you might find it useful to actualy take the book down and read it? Your namecalling is neither appropriate nor intimidating. Nor does it serve your positions well. In fact, it tends to show how incorrect you are when you have to stoop to namecalling instead of attempting to make substantive points. If you can't face the facts and the law, that's not my problem. Fact: Permissive use of another's property in the clear majority of states, even for extended periods of time, does not create a prescriptive right by adverse possession. Why? Because permissive use is not adverse. That has been pretty well established in the law for not only years, not only decades, but centuries in the English Common Law, as inherited and enacted into law in the United States. Fact: This court made findings of fact and law, in accordance with the state's statutory law and procedure that are perfectly rational. Fact: That you don't like the result, or the law, or both, doesn't mean diddly. If you want a different result, your task is to convince the legislature of the relevant state to change the law. How you think that namecalling will help your cause is what flies in the face of reason. |
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03-18-2005, 05:20 PM
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#8 |
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5{\0\0\0\0\0\0\0\0\0orc]I do get it, and obviously you don't. By the way, I have a copy of Black's on the shelf right in front of me, I work in the legal profession. Are you Bat Shit with yet another user name? Must be. I'm done with you, dumbass.[/quote]
By the way, how does working as a probation officer in a small-town drug court in New Mexico qualify you as an expert on property law? Just curious. |
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