Ashby v. OOLMAN

#24534-a-RWS

2008 SD 26

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

EUGENE R. ASHBY and
JUDITH A. ASHBY, husband
and wife, Plaintiffs and Appellants,

v.

JON OOLMAN and CAROL
OOLMAN, husband and wife, Defendants and Appellees.

* * * *

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

* * * *

HONORABLE WARREN G. JOHNSON
Judge

* * * *
DYLAN A. WILDE
THOMAS E. BRADY of
Brady Pluimer, PC
Spearfish, South Dakota Attorneys for plaintiffs
and appellants.

THOMAS E. ADAMS of
Voelker and Adams, PC
Deadwood, South Dakota Attorneys for defendants
and appellees.

* * * *
CONSIDERED ON BRIEFS
ON FEBRUARY 11, 2008

OPINION FILED 04/02/08
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SABERS, Justice.

[¶1.] Eugene R. Ashby and his wife, Judith A. Ashby, claimed a twenty-five

foot wide strip of land between their house and their neighbors, Jon Oolman and his

wife, Carol Oolman. When Oolman 1 began construction on the land that Ashby

claimed, Ashby brought suit against Oolman for trespass, wrongful occupation and

for a determination of the property line. After a bench trial, the circuit court found

in favor of Oolman. Ashby appeals and we affirm.

FACTS

[¶2.] Ashby owns land in Lead, South Dakota known as 803 Searle Street.

Ashby obtained title to this property on July 21, 1998 when Judith Ashby received a

limited warranty deed from the Administrator of Veteran’s Affairs. The deed

described the property as: “The north portion of Lot 4, Block 12, of the Kenwood

Addition to the City of Lead, Lawrence County, South Dakota also known as 803

Searle Street in the City of Lead, South Dakota.”

[¶3.] Oolman owns the land adjacent to Ashby’s land, known as 809 Searle

Street. Oolman obtained title by warranty deed from Equity One, Inc. on January

23, 2004. The legal description is: “Lots 1, 2 and 3, Block 12 of the Kenwood

Addition to the City of Lead, Lawrence County, South Dakota, as set out in Plat

Book 2 Page 55, Lawrence County Records also known as 809 Searle Street.”

1. Unless further distinction is necessary, the parties will be referred to in the
singular (i.e. Ashby and Oolman) even though both plaintiff and defendant
consist of a husband and a wife.

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[¶4.] These two properties were originally entirely owned by Homestake

Mining Company (Homestake). In 1956, Homestake issued a license to Raymond

Grosek allowing him to occupy the property described as:

A parcel of ground, the west corner of which lies in a
Southwesterly direction from Corner No. 4 of said Adam
Lode, M.S. 1281, about 105 feet thence Southeasterly
about 104 feet, Thence Northeasterly about 52 feet
Thence Northwesterly about 100 feet, Thence
Southwesterly about 62 feet to the place of beginning.

The dwelling house situated on said parcel of ground is
known as No. 803 Searle Street in the City of Lead.

Grosek lived on the property with his family until 1963, when he rented the

property to the Hyde family for eleven years. While the Grosek and Hyde families

occupied the land there were two garages on the Homestake property, one on the

803 Searle property and one on the 809 Searle property. The garage on the 803

Searle side had a fence attached to the back that ran between the two houses and

down the hill to the back of the property. However, while Homestake still owned all

of the property, Grosek and Delbert Heller, the occupant of 809 Searle Street, tore

down the two garages for safety reasons and laid the wire fence down.

[¶5.] While Homestake owned all four lots on Searle Street, on July 10,

1978, Homestake conveyed only the 803 property by quitclaim deed to Grosek, who

in turn quitclaimed the property to Emmet L. Tapp and Patricia A. Tapp two days

later. The legal description contained on the quitclaim deed from Grosek to Tapp

described the property as:

Lot Four (4) Block Twelve (12) Kenwood Subdivision to the
Washington Addition to the City of Lead, Lawrence County,
South Dakota; which said Lot is also referred to as Lot eight (8)
Highland Park Addition to the City of Lead, South Dakota,

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according to Homestake Mining Company Drawing, indicating
said Lot to be Seventy-five (75) feet by Sixty-five and 75/100
65.75 feet more or less. This property is also described as 803
Searle Street.

The legal description contained in the quitclaim deed from Homestake to Grosek did

not contain the “Seventy-five (75) feet by Sixty-five and 75/100 65.75 feet more or

less” description. 2

[¶6.] The 803 Searle property was conveyed a few more times over the

years. Eventually, the property was conveyed by Sheriff’s Deed to First Federal

Savings and Loan Association of Rapid City, South Dakota on March 9, 1987. The

Sheriff’s deed omitted the 75 foot by 65.75 foot dimensions and described the

property as: “the North portion of Lot Four (4) Block Twelve (12) of the Kenwood

Addition to the city of Lead, Lawrence County, South Dakota also known as 803

Searle Street in Lead, South Dakota.” Title then transferred to the Veteran’s

Administration, which deeded the property to Ashby.

[¶7.] Oolman’s property was conveyed by Homestake in two separate steps.

First, Lot 3 of Block 12 of the Kenwood Addition 3 (a portion of this property is

2. The description in the quitclaim deed from Homestake to Grosek is as
follows:

The North Portion of Lot 4, Block 12 of the Kenwood Addition to Lead, South
Dakota, according to L.D. Lee’s Map of the Kenwood Addition which lot is
also known as Lot 8 of the Highland Park Addition to the City of Lead
according to J.P. Crick’s Map of the City of Lead, South Dakota. The
dwelling house situated on the above described lot is known as 803 Searle
Street in Lead, South Dakota.

3. Also known as Lot 9 of the Highland Park Addition according to the J.P.
Crick’s map. See attached copy of J.P. Crick map.

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where Ashby claims an interest) was conveyed to Bruce and Rhonda Huber on

December 17, 1976. Lots 1 and 2 of the Kenwood Addition 4 were conveyed to the

Hubers on February 21, 1977. The house on 809 Searle Street was licensed to

Delbert and Jeannie Heller, who conveyed their interest to the Hubers on April 26,

1977. Shortly thereafter, Hubers conveyed their interest in the entire property to

Kathy Kirby and Curtis Eide. The Eides moved in June of 1995 and rented the

property to the Alleys from June 1998 to August 2000. This property changed

hands a couple more times and eventually was conveyed by Equity One, Inc. to

Oolman in 2004.

[¶8.] The subject of this appeal is the ownership of a strip of land,

approximately twenty-five feet wide, between Ashby’s and Oolman’s properties. In

the spring of 2000, Oolman began building plans for a garage between the two

properties. He hired a surveyor to mark the boundary lines and applied to the City

of Lead for a building permit. Ashby objected to Oolman’s plans and argued that

the property line was closer to the Oolman residence than the survey and building

plans indicated. Ashby claimed a seventy-five foot frontage on Searle Street, which

would place the eastern boundary along a line from a tree stump on Searle Street to

a large pine tree at the back of the property. Oolman claimed the property line is

located on a steel post just east of Ashby’s house. The City of Lead gave Ashby an

opportunity to demonstrate the property line was erroneous, but he failed to

produce evidence. Thereafter, the city issued a building permit and Oolman began

construction on the garage in the summer of 2004.

4. Also known as Lots 10 and 11 of the Highland Park Addition.

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[¶9.] Ashby brought suit against Oolman to establish the boundary line

between the two properties, for trespass, wrongful occupation, and an order

restraining and enjoining Oolman from entering Ashby’s land and an order

requiring Oolman to restore Ashby’s land to its original condition. He claimed he

owned the disputed land under three separate theories of adverse possession. The

circuit court found in favor of Oolman and dismissed Ashby’s complaint. Ashby

appeals, raising the following issues:

1. Whether the circuit court erred in denying Ashby’s claim of
adverse possession pursuant to SDCL 15-3-15.

2. Whether the circuit court erred in denying Ashby’s claim of
adverse possession pursuant to SDCL 15-3-10 or SDCL 15-
3-12.

STANDARD OF REVIEW

[¶10.] This appeal follows a court trial on the issue of adverse possession.

“Proof of the individual elements of adverse possession present questions of fact for

the trial court, while the ultimate conclusion of whether they are sufficient to

constitute adverse possession is a question of law.” City of Deadwood v. Summit,

Inc., 2000 SD 29, ¶9, 607 NW2d 22, 25 (quoting Lewis v. Moorhead, 522 NW2d 1, 3

(SD 1994) (citing Lien v. Beard, 478 NW2d 578, 580 (SD 1991))). Therefore, the

circuit court’s findings of fact are reviewed under the clearly erroneous standard,

while its conclusions of law are reviewed under the de novo standard. Fin-Ag, Inc.

v. Feldman Bros., 2007 SD 105, ¶19, 740 NW2d 857, 862 (additional citation

omitted). Moreover, issues of statutory interpretation and application are matters

of law reviewed de novo. Rotenberger v. Burghduff, 2007 SD 7, ¶8, 727 NW2d 291,

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294 (Rotenberger I) (quoting State v. $1,010 in Am. Currency, 2006 SD 84, ¶8, 722

NW2d 92, 94).

[¶11.] 1. Whether the circuit court erred in denying Ashby’s claim
of adverse possession pursuant to SDCL 15-3-15.

[¶12.] If an individual possesses and pays taxes on land for ten years under

claim and color of title, SDCL 15-3-15 entitles the tax-paying individual to a

judgment of ownership. SDCL 15-3-15 provides that:

Every person in the actual possession of lands or tenements
under claim and color of title made in good faith, and who shall
have continued for ten successive years in such possession, and
shall also during said time have paid all taxes legally assessed
on such lands or tenements, shall be held and adjudged to be the
legal owner of said lands or tenements to the extent and
according to the purport of his paper title. All persons holding
under such possession by purchase, devise, or descent before
said ten years shall have expired, and who shall have continued
such possession and payment of taxes as aforesaid so as to
complete said term of ten years of such possession and payment
of taxes, shall be entitled to the benefit of this section.

This statute requires: “(1) claim and color of title made in good faith, (2) ten

successive years in possession, and (3) payment of all taxes legally assessed.”

Andree v. Andree, 291 NW2d 788, 790 (SD 1980).

[¶13.] Ashby claims the elements of this statute have been met because he

has claim and color of title made in good faith due to the deed from Grosek that

contained the 65 feet by 75.65 feet description. This, Ashby argues, would place the

boundary at the old tree stump. The Lawrence County Equalization Office also has

a notation on the property tax assessment card for 803 Searle Street that the lot

size was “66 x 73.” Ashby has also paid all the assessed real estate taxes.

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[¶14.] Ashby’s arguments fail for two reasons. First, Ashby did not possess

the land under claim and color of title made in good faith. When Homestake

quitclaimed the 803 Searle property, the legal description did not contain the 75

feet by 65.75 feet description. Only two days later, when Grosek quitclaimed the

property to the Tapps, did the size designation appear in the deed. The description

in the quitclaim deed from Homestake only conveyed:

The North Portion of Lot 4, Block 12 of the Kenwood Addition to
Lead, South Dakota, according to L.D. Lee’s Map of the
Kenwood Addition which lot is also known as Lot 8 of the
Highland Park Addition to the City of Lead according to J.P.
Crick’s Map of the City of Lead, South Dakota. The dwelling
house situated on the above described lot is known as 803 Searle
Street in Lead, South Dakota.

[¶15.] John Arleth testified at trial on behalf of Oolman and said that the

north portion of Lot 4 would have a fifty-foot frontage, not the seventy-five foot

frontage urged by Ashby, according to all three of the plat maps that he knew of for

the property. 5 Moreover, according to Arleth, Grosek originally had a license for

more than just the north portion of Lot 4. However, Homestake only quitclaimed

the north portion of Lot 4 and the deed held by Ashby only indicates ownership of

the north portion of Lot 4. Therefore, Ashby would not have “a claim and color of

title made in good faith.”

[¶16.] Nor is there evidence that Ashby paid taxes on the disputed property.

Darlene Piekkola, the Lawrence County Director of Equalization, testified that the

5. The surveyor for Ashby, Loren Vrem, testified that he created a plat map, but
he used the dimensions 75 by 65.75 that were not in the quitclaim deed to
Grosek, but were placed in the quitclaim deed from Grosek to Tapp. These
(continued . . .)

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property size on the assessor card was merely an estimate. She testified that the 66

x 73 is not a measure of the front and one side of the property. Rather, since the

property lot was irregular the numbers are probably an average of the sides and

front and back. Therefore, it is not demonstrated that taxes were actually assessed

and paid on that particular twenty-five foot wide strip of land between the

properties. Plaintiff has not demonstrated that the circuit court erred in finding

against him regarding SDCL 15-3-15.

[¶17.] 2. Whether the circuit court erred in denying Ashby’s claim
of adverse possession pursuant to SDCL 15-3-10 or SDCL
15-3-12.

[¶18.] In the alternative, Ashby claims that the circuit court erred because

SDCL 15-3-10 or SDCL 15-3-12 vests title to the disputed property in him. SDCL

15-3-10 provides:

Whenever it shall appear that the occupant, or those under
whom he claims, entered into the possession of premises under
claim of title, exclusive of any other right, founding such claim
upon a written instrument as being a conveyance of the premises
in question, or upon the decree or judgment of a competent
court, and that there has been a continued occupation and
possession of the premises included in such instrument, decree,
or judgment, or of some part of such premises under such claim
for twenty years, the premises so included shall be deemed to
have been held adversely; except that where the premises so
included consist of a tract divided into lots the possession of one
lot shall not be deemed a possession of any other lot of the same
tract.

(Emphasis added). The code also declares that:

________________________
(. . . continued)
plat maps are not recorded at the Register of Deeds. The recorded plat maps,
which were used by Arleth, show a 50 foot frontage for Lot 4.

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For the purpose of constituting an adverse possession by any
person claiming a title founded upon a written instrument, or a
judgment, or a decree, land shall be deemed to have been
possessed and occupied in the following cases: (1) Where it has
been usually cultivated or improved; (2) Where it has been
protected by a substantial [e]nclosure . . . .

SDCL 15-3-11.

[¶19.] Ashby alleges that Taylor v. Tripp, 330 NW2d 542 (SD 1983),

demonstrates that the circuit court erred. However, the facts in Taylor are

distinguishable from this case. In Taylor, the occupant of the land mistakenly

thought her property line extended all the way to a fence, when it actually stopped

eleven feet short of the fence. Id. at 543. Nonetheless, she used the disputed

property for a garden. Id. This Court noted that if “an adjoining landowner enters

into possession under claim of title and under misapprehension as to the true

boundary and continues in possession for twenty years, adverse possession is

established under . . . SDCL 15-3-10, not withstanding the fact the land extends

beyond the calls of the occupant’s deed.” Id. at 544 (citing Sullivan v. Groves, 42 SD

60, 172 NW 926 (1919)). Additionally, the evidence at trial demonstrated “the fence

line acted as a substantial [e]nclosure . . . and . . . the property next to the fence line

was usually cultivated.” Id.; see also SDCL 15-3-11.

[¶20.] Ashby argues that the stump of a tree along with a second pine tree

and remnants of a fence, located in the back of the property, constitute a

“substantial enclosure.” However, a substantial enclosure is more than an invisible

line running from a tree stump to a pine tree to a dilapidated, half-hidden fence at

the back property line. For example, in Cuka v. Jamesville Hutterian Mutual

Society, 294 NW2d 419 (SD 1980), this Court found that “the James River formed a

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natural barrier around the disputed land” and thus constituted a “substantial

enclosure.” Id. at 422. In Lewis v. Moorhead, 522 NW2d 1 (SD 1991), a white fence

that did not run the entire distance between the lots was declared a substantial

enclosure but it “provide[d] a physical and visual basis for determining the property

line.” Id. at 3 n4 (additional citation omitted). Finally, in Schultz v. Dew, 1997 SD

72, 564 NW2d 320, in finding that a tree line constitutes a substantial enclosure, we

noted that “natural barriers may also satisfy the requirement of a substantial

enclosure.” Id. ¶13, 564 NW2d at 323.

[¶21.] While natural barriers may be substantial enclosures, the problem in

this case is that a tree stump, a second pine tree and a run-down fence at the back

of the property is markedly different from the James River, a partial white fence, or

a tree line. Additionally, the plain meaning of substantial enclosure does not

support a finding that a tree stump is a substantial enclosure. Substantial is

defined as “consisting of or relating to substance . . ., not imaginary or illusory . . .

[or] being largely but not wholly that which is specified . . . .” Enclosure is defined

as “something that encloses [or] something enclosed.” Merriam Webster Online

Dictionary, www.m-w.com (last accessed on March 20, 2008). An invisible line from

stump to pine tree to a hidden run-down fence is not largely enclosing the property

and does not meet the definition of substantial enclosure.

[¶22.] Finally, Ashby argues the disputed property is his under SDCL 15-3-

12, which provides:

Where it shall appear that there has been an actual continued
occupation of premises under a claim of title exclusive of any
other right, but not founded upon a written instrument, or a

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judgment, or decree, the premises so actually occupied, and no
other, shall be deemed to have been held adversely.

“[T]he property in question must either have been protected by a ‘substantial

[e]nclosure’ or must have been ‘usually cultivated or improved.’” City of Deadwood,

2000 SD 29, ¶16, 607 NW2d at 26 (additional citation omitted). Moreover, “[t]he

traditional elements of adverse possession require the ‘actual, open, visible,

notorious, continuous and hostile’ occupation of the property for the statutory

period.” Id. (additional citations omitted). The evidence produced at trial falls

short and does not support this claim.

[¶23.] As discussed above, Ashby has not demonstrated the disputed property

is substantially enclosed. Likewise, in this case, the testimony from the current and

prior occupants of 809 Searle was that Ashby rarely if ever utilized his property and

rarely touched the disputed property. Ashby lives in Huron, South Dakota and only

utilized 803 Searle approximately three or four times per year and for a few days to

a week at a time. When he visited, he parked on the street and not on the disputed

property. The current and former residents of 809 Searle testified that they mowed

the disputed property when it needed mowing, but Ashby may have mowed it once

or twice. 6 Brittany Alley testified that when her family rented the house for three

years, they placed a trampoline next to their house and no one used the grass

between their home and Ashby’s. Finally, there was no testimony that the property

6. Despite Ashby’s claim that he mowed the lawn when necessary, the circuit
court heard the testimony and specifically found that Eide maintained the
disputed property all the way to the steel post next to Ashby’s home before
and after Ashby bought the property.

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was “usually cultivated.” In actuality, the testimony reflects it was a strip of wild

grass and weeds that was rarely mowed.

[¶24.] Ashby argues that when Grosek utilized the property there was a

garage and a fence separating the property and therefore, that demonstrates the

disputed property was on the 803 Searle side. However, when Grosek lived on the

property, he did so under a license from Homestake, which was different than the

later deeded property. See supra ¶¶4-5. He later tore out the garage and fence in

1974 or 1975, while Homestake still owned the property. Grosek never adversely

possessed the property. When Homestake quitclaimed the 803 Searle property to

Grosek, he received only the north portion of Lot 1, which is exactly what Ashby

owns now, nothing more.

[¶25.] Ashby has not demonstrated that the circuit court erred in ruling for

Oolman. The evidence in the record demonstrates Ashby’s deed did not include the

disputed property, nor has Ashby fulfilled the elements of adverse possession under

any statute. Therefore, we affirm the circuit court.

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

MEIERHENRY, Justices, concur.

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