Ashby v. Oolman

• Decision Date: 02 April 2008
• Docket Number: No. 24534.,24534.
• Citation: 2008 SD 26,748 N.W.2d 132
• Parties: 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.
• Court: South Dakota Supreme Court

748 N.W.2d 132

2008 SD 26

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.

No. 24534.

Supreme Court of South Dakota.

Considered on Briefs February 11, 2008.

Decided April 02, 2008.

Dylan A. Wilde, Thomas E. Brady of Brady Pluimer, P.C., Spearfish, South Dakota,

Attorneys for plaintiffs and appellants.

Thomas E. Adams of Voelker and Adams, P.C., Deadwood, South Dakota, Attorneys for defendants and appellees.

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 Oolman¹ 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."

[¶ 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, 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 Addition³ (a portion of this property is where Ashby claims an interest) was conveyed to Bruce and Rhonda Huber on December 17, 1976. Lots 1 and 2 of the Kenwood Addition⁴ 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.

[¶ 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 N.W.2d 22, 25 (quoting Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994)) (citing Lien v. Beard, 478 N.W.2d 578, 580 (S.D.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 N.W.2d 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 N.W.2d 291, 294 (Rotenberger I) (quoting State v. $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 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 N.W.2d 788, 790 (S.D.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...