Brown v. Hanson, No. 24526.
| Court | Supreme Court of South Dakota |
| Writing for the Court | Meierhenry |
| Citation | 743 N.W.2d 677,2007 SD 134 |
| Decision Date | 26 December 2007 |
| Docket Number | No. 24526. |
| Parties | Terry BROWN and Susan Brown, Plaintiffs and Appellees, v. James HANSON, Defendant and Appellant. |
v.
James HANSON, Defendant and Appellant.
[743 N.W.2d 678]
Dylan A. Wilde, Brady & Pluimer, Spearfish, South Dakota, Attorneys for plaintiffs and appellees.
Brad P. Gordon, Eric J. Strawn, Tellinghuisen & Gordon, P.C., Spearfish, South Dakota, Attorneys for defendant and appellant.
MEIERHENRY, Justice.
[¶ 1.] James Hanson appeals from a summary judgment granted in a declaratory judgment action in favor of Terry Brown and Susan Brown (Browns) concerning the question of whether Hanson was entitled to rescind a Common Well and Road Easement Agreement (Easement Agreement). We affirm.
[¶ 2.] Browns and Hanson own adjoining real property in Meade County, South Dakota. A well that provides water to both properties is located on Hanson's property. On June 14, 2000, Browns and Hanson entered into the Easement Agreement giving Browns the right to access water from the well for domestic purposes only. The Easement Agreement provided as follows:
That it shall be binding upon "Brown, Hanson and their respective heirs, successors, and assigns, and shall be considered to be a covenant running with the land. The parties agree that the well located upon the Hanson property shall be utilized to provide water service to both the Hanson property and the Brown property. The parties each agree to use the water from the well for domestic purposes only and neither party shall sell any water from well, without written consent of the other party.
[¶ 3.] In July of 2006, Browns entered into a purchase agreement to sell their property to a third party. Before the sale was complete, Hanson filed a letter with the Meade County Register of Deeds claiming he had rescinded the Easement Agreement. Browns commenced a declaratory judgment action to determine if Hanson could seek rescission as a remedy. Hanson filed an answer and a counterclaim seeking rescission.
[¶ 4.] It is undisputed that each year from 2000 to 2005 Browns permitted 15-20 individuals to place their tents and recreational vehicles on their property during
the Sturgis Bike Rally. For purposes of summary judgment, the circuit court considered as undisputed fact that Browns had used water for non-domestic, non-residential purposes and thereby had breached the agreement. The only issue before the circuit court was whether Hanson was entitled to the remedy of rescission. Based upon the language of the Easement Agreement, the court determined that the parties did not intend to create a conditional easement but had created a permanent water right. The court determined that the remedy of rescission was not available for breach of the agreement and entered partial summary judgment in favor of Browns and against Hanson. Hanson claims that the circuit court erred when it determined that rescission was not a remedy. The issue on appeal is as follows:
Whether Hanson has the right to seek rescission as a remedy for breach of the Easement Agreement.
[¶ 5.] "When reviewing a grant of summary judgment, `we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.'" Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. "All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party." Hendrix v. Schulte, 2007 SD 73, ¶ 6, 736 N.W.2d 845, 847. Once we determine that the "material facts [are] undisputed, our review is limited to determining" whether the law was correctly applied. Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438. "If any legal basis exists to support the circuit court's ruling, we affirm." Johns v. Black Hills Power, Inc., 2006 SD 85, ¶ 4, 722 N.W.2d 554, 556.
[¶ 6.] The parties agree that they had an express easement. An easement is "`an interest in the land in the possession of another which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists.'" Knight v. Madison, 2001 SD 120, ¶ 4, 634 N.W.2d 540, 541 (citing Gilbert v. KTI, Inc., 765 S.W.2d 289, 293 (Mo.Ct.App.1988) (citations omitted)). South Dakota law recognizes a "right of taking water" as an easement "that may be attached to other land as incidents or appurtenances." SDCL 43-13-2. Additionally, "[t]he extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." SDCL 43-13-5.
[¶ 7.] Here the parties determined the terms of the servitude by a written contract. The written contract involved the well and water main running from the well through three service lines with shut-off valves. One line serviced the home on the Brown property, and the other two lines serviced the home and barn on the Hanson property. The written contract set forth the parties' "rights and obligations concerning the use of water from the water well." The agreement provided that the parties would "use the water from the well for domestic purposes only, and neither party shall sell any water from the well, without written consent of the other party." The agreement also specified that each party was responsible for the maintenance of the service lines on the party's property and one-half of the cost of electricity and repair and maintenance of the equipment. Other provisions of the agreement involved the right of access to each other's property and to a trail running
across Browns' property, and apportioned the use and cost of maintenance of an access road.
[¶ 8.] Hanson claims, pursuant to SDCL 43-13-12, that Browns' use of the water for non-domestic purposes extinguished the water easement because non-domestic water use was incompatible with the nature or exercise of the easement. Hanson claims that since the easement was extinguished, he is entitled to seek rescission as a remedy. In determining the narrow issue of whether Hanson could seek rescission, the circuit court assumed that Browns had breached the Easement Agreement.
[¶ 9.] South Dakota law recognizes rescission of a written contract in certain cases. SDCL 21-12-1. SDCL 53-11-2 provides for rescission of a written contract "in the following cases only:"
(1) If consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through duress, fraud, or...
To continue reading
Request your trial
-
Dehaven v. Hall, No. 24261.
...trial court level. 2. Technically, under South Dakota law, easements are extinguished, not forfeited. SDCL ch 43-13. See Brown v. Hanson, 2007 SD 134, 743 N.W.2d 3. We treat this as a motion. 4. We have noted that the failure to "make use of the full rights of the easement area as contained......
-
Brown v. Hanson, Nos. 25700
...part and remand in part.FACTS [¶ 2.] Additional facts of this case are set forth in Brown v. Hanson ( Brown I ), 2007 S.D. 134, ¶¶ 1–4, 743 N.W.2d 677, 678–79. In 1995, James Hanson and his wife purchased property in Sturgis, South Dakota. Hanson's sister and brother-in-law, Debbie and Virg......
-
Brown v. Hanson, #25700, #25701
...in part and remand in part.FACTS [¶2.] Additional facts of this case are set forth in Brown v. Hanson (Brown I), 2007 S.D. 134, ¶¶ 1-4, 743 N.W.2d 677, 678-79. In 1995, James Hanson and his wife purchased property in Sturgis, South Dakota. Hanson's sister and brother-in-law, Debbie and Virg......
-
Macy Elevator, Inc. v. United States, No. 09-515L
...is entitled." Id. Courts and legislatures in other jurisdictions have adopted similar versions of this rule. See, e.g., Brown v. Hanson, 743 N.W.2d 677, 681 (S.D. 2007) (holding that under a South Dakota statute governing termination of easements, an unauthorized use of an easement warrants......
-
Dehaven v. Hall, No. 24261.
...trial court level. 2. Technically, under South Dakota law, easements are extinguished, not forfeited. SDCL ch 43-13. See Brown v. Hanson, 2007 SD 134, 743 N.W.2d 3. We treat this as a motion. 4. We have noted that the failure to "make use of the full rights of the easement area as contained......
-
Brown v. Hanson, Nos. 25700
...part and remand in part.FACTS [¶ 2.] Additional facts of this case are set forth in Brown v. Hanson ( Brown I ), 2007 S.D. 134, ¶¶ 1–4, 743 N.W.2d 677, 678–79. In 1995, James Hanson and his wife purchased property in Sturgis, South Dakota. Hanson's sister and brother-in-law, Debbie and Virg......
-
Brown v. Hanson, #25700, #25701
...in part and remand in part.FACTS [¶2.] Additional facts of this case are set forth in Brown v. Hanson (Brown I), 2007 S.D. 134, ¶¶ 1-4, 743 N.W.2d 677, 678-79. In 1995, James Hanson and his wife purchased property in Sturgis, South Dakota. Hanson's sister and brother-in-law, Debbie and Virg......
-
Macy Elevator, Inc. v. United States, No. 09-515L
...is entitled." Id. Courts and legislatures in other jurisdictions have adopted similar versions of this rule. See, e.g., Brown v. Hanson, 743 N.W.2d 677, 681 (S.D. 2007) (holding that under a South Dakota statute governing termination of easements, an unauthorized use of an easement warrants......