Brusseau v. McBride

• Decision Date: 15 September 1976
• Docket Number: No. 11758,11758
• Parties: Daniel J. BRUSSEAU and Kathryn D. Brusseau, Plaintiffs and Appellants, v. Ed McBRIDE et al., Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 488

245 N.W.2d 488

Daniel J. BRUSSEAU and Kathryn D. Brusseau, Plaintiffs and Appellants, v. Ed McBRIDE et al., Defendants and Respondents.

No. 11758.

Supreme Court of South Dakota.

Sept. 15, 1976.

George A. Bangs of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiffs and appellants.

Lynden D. Levitt, Rapid City, for defendant and respondent Ed McBride.

Julius F. Sieler of Sieler, Sieler & Trimble, Rapid City, for defendant and respondent Harold Bies.

A. P. Fuller of Kellar, Kellar, Fuller, Amundson & Furze, Lead, for defendant and respondent Homestake Forest Products Company.

William H. Coacher, State's Atty., Meade County, Sturgis, for defendant and respondent, Meade County.

ANDERST, Circuit Judge.

This is an appeal from a declaratory judgment action to determine the existence or nonexistence of a public road over the property owned by the parties herein. From a judgment declaring the road to have been dedicated under common law principles, irrevocably and to public use along its entire length, the plaintiffs have appealed. We reverse.

Our law is settled that '(c)onduct on the part of the owner that is clearly expressive of an intention to dedicate usually amounts to dedication, if acted upon by the public in a manner which clearly justifies the inference of an acceptance.' Larson v. Chicago, M. & St. P. Ry. Co., 1905, 19 S.D. 284, 103 N.W. 35. The legislature, to prevent the establishment of highways on public and private land by user, enacted Ch 100, Laws of 1893 (now SDCL 31--3--2) which reads:

'(t)he mere use by the public of any route of travel along or across public or private land, or the right of way of any railroad company for any period, shall not operate to establish a public highway and no right shall inure to the public or any person by such use thereof.'

This court in Roche Realty & Investment Co. v. Highlands Co., 1912, 29 S.D. 169, 135 N.W. 684; First Church of Christ, Scientist v. Revell, 1942, 68 S.D. 377, 2 N.W.2d 674; Lacey v. Judge, 1942, 68 S.D. 394, 3 N.W.2d 115, and Stannus v. Heiserman, 1949, 72 S.D. 567, 38 N.W.2d 130, has held that mere user will not support an inference of implied dedication. '* * * (W)hat amounts to a dedication by implication depends upon the facts of the particular case, and no hard and fast rule can be laid down as a guide for the courts.' Evans v. City of Brookings, 1918, 41 S.D. 225, 170 N.W. 133.

The plaintiffs, Daniel J. Brusseau and Kathryn D. Brusseau, are the owners of a 10-acre, 660-square-foot tract of land, described as the southwest quarter of the southwest quarter of the northeast quarter of section 9, township 2 north, range 6, Black Hills Meridian, Meade County, South Dakota. The road in question runs from the Nemo road, a public highway in Pennington County, South Dakota, across U.S. Forest Service land, across Homestake Forest Products Company land, enters the Brusseau property near the southwest corner thereof, then proceeds in a northeasterly direction, passing approximately twenty feet to the east of the Brusseau house, exits the Brusseau land near the northwest corner thereof, crosses a corner of Harold Bies land, then angles northwest across more Homestake Forest Products Company land until it enters land owned by Ed McBride or his controlled corporation, Rolling Hills Corporation, and several families who have purchased land from him. The road is the only access route for ingress and egress for these families except trails that are passable only in good weather in four-wheel-drive vehicles. Some members of the general public have from time to time used the road to gain access to hunting and fishing areas.

Until 1971, the road in question was a trail with rock outcroppings, mudholes and washes. No survey or plat has ever been made of the road, and the court did not find and the evidence does not disclose the exact location of the present road, its width or length. The facts do disclose that over the years the location of the road has varied and has been moved. Most times its location depended upon the weather and the conditions. Travel was across the easiest and most accessible route.

In December 1970, respondent McBride purchased 360 acres at the end of the road. He sold parts of this parcel to various individuals, some of whom built homes on this property. These families, some with children, have used the road continuously and on a daily basis since moving in. After purchasing the property, McBride met with the Meade County Commissioners to ask their assistance in rebuilding the road. They refused. Thereafter, in January 1971, McBride, without asking permission from anyone, began to reconstruct the road. The reconstruction generally followed the then existing road except for a minor change where it passed through Homestake property. This change was made after consultation with a Homestake employee. Also during this time, McBride had a conversation with one Mr. Leo Ausmann, the then owner of the Brusseau property, at which time Mr. Ausmann told McBride this was a public road and "I'm glad to have you get me out of the mud." During reconstruction, an old gate placed by Bies where the road entered his property was removed. This reconstruction took approximately four months, with a total outlay by McBride of $10,432.36.

In the summer of 1973, plaintiffs Brusseaus purchased their tract of land from the Leo Ausmann estate. The families in the Rolling Hills area continued to use the road on a continuing daily basis. After having a title examination, the Brusseaus found no easement of record showing the road across their property. Accordingly, they posted signs stating the road across their property was private. They also dug a ditch through the road and placed rocks and boulders on the road to make it impassable. This lawsuit was then initiated asking for a declaratory judgment.

Respondent, Homestake Forest Products Company, in its answer denied this was a public road, as did respondent, Harold Bies, from the witness stand. Plaintiffs, Brusseaus, also claim the road was never dedicated to the public. Meade County has never expended any money for maintenance of the road and none of its equipment has ever been utilized in its maintenance or repair.

Findings of fact should not be set aside unless clearly erroneous, and due regard should be given to the opportunity of the trial court to judge the credibility of the witnesses. SDCL 15--6--52(a). However, we do not share the view of the trial court that these facts support an inference either that the owners of the property intended to dedicate this roadway to public use, or that the public accepted such a dedication.

This road was established and maintained by the affected property owners for their own mutual benefit and use. Up until the time McBride purchased his property and began selling building sites, the traffic on the road past the Brusseau and then Ausmann homes was light and sporadic. As this court said in Stannus v. Heiserman, supra: 'Because there has been acquiescence in its user by an adjoining owner, and by some others, does not in our opinion manifest an intention to yield it to public use.' Further, in the case of Roche Realty & Investment Co. v. Highlands Co., supra, this court stated:

'It conclusively shows that, when the public began traveling across the land now owned by the defendant, it was unoccupied prairie; that different routes were traveled at different times and seasons; and that the inception of the travel was without claim or color of right. Such travel, though continued for more than 20 years, cannot create a presumption that the alleged highway was originally established pursuant to law by proper authority, because the statute expressly declares that 'no rights or benefits shall inure to the public or any individual' by the use of such a 'road' or 'way' as the one involved in this action. The plaintiff's claim of a prescriptive right to travel across the defendant's land is precisely such a claim as the statute was designed to defeat.'

The principle pronounced in First Church of Christ, Scientist v. Revell, supra, wherein we quoted with approval the words of the North Dakota Court in Cole v. Minnesota Loan & Trust Co., 17 N.D. 409, 117 N.W. 354, ...