Johnson v. Radle
| Decision Date | 26 March 2008 |
| Docket Number | No. 24575.,24575. |
| Citation | 2008 SD 23,747 N.W.2d 644 |
| Parties | Tom JOHNSON, Plaintiff and Appellant, v. Stanley C. RADLE and Sharon B. Radle; Floyd T. Birchfield; Linda Haglund, Defendants, and Deadwood Stage Run, L.L.C., Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Roger A. Tellinghuisen of Tellinghuisen & Gordon Spearfish, South Dakota, Attorney for plaintiff and appellant.
Scott J. Odenbach of Seward & Odenbach, Spearfish, South Dakota, Attorneys for defendant and appellee.
[¶ 1.] The owners of Lot 696, Palisades Stone Placer, Lawrence County, South Dakota began subdividing their property in 1979. After each subdivision, the owners filed and recorded a plat with the Register of Deeds. On the first plat, the owners created Tract D, which was burdened by one easement. In three subsequent plats that created new tracts, the owners established additional easements burdening Tract D. These later plats, however, did not amend or vacate the plat for Tract D. Now, the validity of the two additional easements burdening Tract D is in dispute. On cross motions for summary judgment, the circuit court held that the current owner of Tract D had constructive notice of the easements. We affirm in part and reverse in part.
[¶ 2.] The property in dispute is located in Lot 696 Palisades Stone Placer, Lawrence County, South Dakota (Lot 696). Donald and Nora Ostby and Douglas and Betty Nelson (the Owners) began subdividing Lot 696 in 1979. The first tract of land created was Tract D. The plat for Tract D was filed by the Owners with the Lawrence County Register of Deeds as Plat #79-3272. A review of the plat shows a 66' wide easement along the northeastern boundary of Tract D (Northeastern Easement).
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
[¶ 3.] The Owners continued to subdivide Lot 696. In July 1980, they filed Plat # 80-2185, creating Tract C. On this plat, the boundaries and location of Tract D are included, but not the Northeastern Easement. There is an easement on the plat, but it is listed as a "66' wide dedicated public right of way" and is located on the northwestern boundary of Tract D (Northwestern Easement).
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
[¶ 4.] In 1981, the Owners filed Plat # 81-2887, creating Tracts E and F. This plat includes the boundaries and location of Tract D, but not Tract C. The plat also does not reference the original Northeastern Easement. Instead, the plat contains a notation declaring that the "previously dedicated public right of way" was to be "vacated by this plat." The arrows by this notation point to the areas that would have been the Northwestern and Northeastern Easements.1 The plat for Tracts E and F identify a new "50' wide private access and utility easement" (Diagonal Easement), which starts in Tract D from the middle of the original Northeastern Easement and runs diagonally to the south, ending in Tract E.
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
[¶ 5.] In 1984, the Owners filed Plat # 84-2419, creating Tracts A, B, G, H, I, J, K, and L. The plat for these tracts includes the boundaries and locations of Tracts D, C, E, and F. The plat has arrows pointing toward the Northeastern and Northwestern Easements, with a "Road easements of record" notation. The Diagonal Easement is also present, with a "50' wide easement of record" notation.
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
[¶ 6.] In 2001, Tom Johnson entered into a purchase agreement with Mark Heinen for Tract D. Johnson had visually inspected the land before his purchase and bought title insurance. The commitment for title insurance identified various easements, and in particular, revealed an "Easement of Right of Way between John M. Heinen and Teri R. Heinen and Tammy Hollenbeck to use existing roadway across Tract D for the benefit of Tract C to run with the land as recorded in Document No. 2001-6824."2 Johnson's warranty deed also indicated that Tract D is "SUBJECT TO access easement across Tract D exclusively between Mark Heinen and Doug Mergen and Tammy Mergen for the benefit of Lot C Doc. No. 90-3143[.]"
[¶ 7.] At some point after Johnson purchased Tract D, a dispute arose between him and the owners of various other tracts in Lot 696 concerning their use of Tract D for access to their property. After Johnson challenged their right to use his land, he was told that certain easements granted them the right. In particular, it was claimed that the Diagonal and Northwestern Easements across Tract D were previously created by the Owners of Lot 696 and have been continuously used for over twenty years. Johnson questioned whether the two easements were validly created and brought suit to quiet title against Stanley C. and Sharon B. Radle, Floyd T. Birchfield, Linda Haglund, Douglas M. Mergen, John Mark Heinen and John Nick Heinen (defendants).3
[¶ 8.] Johnson and defendants filed cross motions for summary judgment. Johnson argued that when he purchased Tract D there was no indication that the Northwestern or Diagonal Easement existed because the plat for Tract D contains only the Northeastern Easement. Defendants averred that the easements were validly created by Plats ##80-2185, 81-2887, and 84-2419, that Johnson had constructive notice of the easements, and that the easements existed by prescription.4 The court granted summary judgment for defendants, concluding that Johnson had constructive notice of the Northwestern and Diagonal Easements. Johnson appeals asserting that the court erred when it (1) concluded as a matter of law that Plats ##80-2185, 81-2887, and 84-2419 created valid easements across Tract D; (2) found that he had constructive notice of the easements; and (3) denied his motion for summary judgment.
[¶ 9.] Our standard of review for summary judgment is well established:
"When reviewing a grant of summary judgment, we decide only whether there were genuine issues of material fact and whether the law was correctly applied." Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza Condominiums Ass'n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846). "We view the evidence in a light most favorable to the nonmoving party." Toben v. Jeske, 2006 SD 57, ¶ 9, 718 N.W.2d 32, 35 (citing Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). The moving party has the burden of showing "the absence of any genuine issue of material fact and entitlement to judgment as a matter of law." Yarcheski v. Reiner, 2003 SD 108, ¶ 15, 669 N.W.2d 487, 493 (citing S.D. Dept. of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D. 1989)).
Rush v. U.S. Bancorp Equipment Finance Inc., 2007 SD 119, ¶ 7, 742 N.W.2d 266, 268.
[¶ 10.] Johnson first contends that the circuit court found "as a matter of law the Diagonal easement and the Northwestern easement across [Tract D] were validly created by the recording of subsequent plats." (Emphasis added). On the contrary, the circuit court did not find that the plats created the easements as a matter of law. In fact, the court recognized that the Owners of Lot 696 failed to prepare these plats to properly vacate or amend the plat for Tract D.5 Rather, the court ruled that Johnson had constructive notice of the easements indicated on those plats through language used in two access agreements filed with the Register of Deeds, his warranty deed, and the title insurance policy.
[¶ 11.] Johnson also disputes the court's finding that he had constructive notice of either the Northwestern or Diagonal Easement. According to Johnson, because the Owners of Lot 696 failed to comply with SDCL Chapter 11-3 when they filed subsequent plats, there can be no constructive notice to him of easements not properly indexed to his property. Further, Johnson insists that constructive notice could not be imputed to him because after a professional title search and personal observation of the property, nothing indicated to him the possibility that such easements existed.
[¶ 12.] Defendants concede that Plats ##80-2185, 81-2887, and 84-2419 did not properly vacate or amend Plat # 79-3272. However, they contend that Johnson is charged with notice of the disputed easements through his warranty deed and title insurance policy. His warranty deed identified an access agreement between Mark Heinen (previous owner of Tract D) and the Mergens (owners of Tract C), made for the benefit of Tract C. The agreement was created on July 30, 1990, and was filed as Document # 90-3143. Because the agreement contains references to a "road easement," "existing road," and "Tract A and B", defendants maintain that Johnson had a duty to seek out and investigate matters relating to the use of Tract D by the owners of Tracts A, B, and C. Had Johnson investigated the plats for Tracts A, B, and C, defendants claim he would have learned of the existence of both disputed easements.
[¶ 13.] Constructive notice of an easement can be imputed to a purchaser
where the easement is of such character that a purchaser acting with ordinary diligence would know or learn of its existence. Thus, where the easement is open and visible, the purchaser will be charged with notice even though the easement was created by a grant which was not then recorded. The grantee is bound where a reasonably careful inspection of the premises would disclose the existence of the easement or where the grantee has knowledge of facts sufficient to put a prudent buyer on inquiry.
Wiege v. Knock, 293 N.W.2d 146, 148 (S.D. 1980) (citations omitted) (emphasis added).
[¶ 14.] Defendants do not claim that a careful inspection of Tract D would have disclosed the existence of an easement. Therefore, we must determine whether the record discloses facts sufficient to put Johnson on inquiry that the...
To continue reading
Request your trial
-
State v. Hemminger
...not consent to the seizure of his DNA. But the State did not file a notice of review preserving that issue before this Court. See Johnson v. Radle, 2008 S.D. 23, ¶ 19, 747 N.W.2d 644, 652. [¶22.] Nonetheless, during oral argument, Hemminger alternatively asserted that the circuit court erre......