Burkhart v. Lillehaug, 22252.
| Citation | 664 N.W.2d 41,2003 SD 62 |
| Decision Date | 28 May 2003 |
| Docket Number | No. 22252.,22252. |
| Parties | William BURKHART, Pat Peters, Marjo Peters, Colleen Moran, Annette Fisher, Steve Glover, Carla Glover, Iwalana Gali, John Aye and Trenda Aye, Plaintiffs and Appellants, v. Arlendo "Casey" LILLEHAUG and Lotus D. Lillehaug, Defendants and Appellees. |
| Court | South Dakota Supreme Court |
Brad P. Gordon and Roger A. Tellinghuisen of Fuller, Tellinghuisen, Gordon & Percy, Spearfish, South Dakota, Attorneys for plaintiffs and appellants.
Dwight A. Gubbrud of Bennett, Main & Gubbrud, Belle Fourche, South Dakota, Attorneys for defendants and appellees.
[¶ 1.] William Burkhart, Pat Peters, Marjo Peters, Colleen Moran, Annette Fisher, Steve Glover, Carla Glover, Iwalana Gali, John Aye and Trenda Aye (hereinafter collectively referred to as Burkhart) brought suit against Arlendo "Casey" Lillehaug and Lotus D. Lillehaug (Lillehaugs) seeking a mandatory injunction to compel Lillehaugs to reconstruct a road providing access to Burkhart's property alleging that Lillehaugs unreasonably altered the road from its original condition. The trial court determined the road had not been unreasonably altered and denied Burkhart's requested relief. We affirm.
[¶ 2.] In 1963, the late John Aye II purchased a parcel of unimproved land located on a hillside in Spearfish Canyon in an area historically known as Savoy in Lawrence County, South Dakota. The land was plated by Aye in 1965 and designated as lots 1 through 9. The plat was duly recorded at the Office of the Lawrence County Register of Deeds.
[¶ 3.] Bud Polley, a surveyor, demarcated a road on the subdivision plat as the designated access from the county highway to the newly created lots. The road was depicted on the plat by a double line marked "road." The plat contained no specific survey information or dimensions that would enable it to be precisely located. There was no indication of its length, width, slope, distance, direction, grade or radius. The plat also did not contain any words of dedication.
[¶ 4.] Aye bulldozed a road or trail through lot 5 to the other lots around the time this plat was being prepared. The road built by Aye was a "cat trail" which provided limited, seasonable access to two-wheel drive vehicles.
[¶ 5.] In March 1977 Lillehaugs purchased lot 5 from Tom Hegen. None of the lots were improved or occupied at this time. In the summer of 1978 Lillehaug moved a garage on to lot 5. The structure was destroyed by a fire in 1981. At this time, Lillehaug hired a contractor, Bud Stafford, to re-shape the road as it crossed lot 5. The result of the modification to the road was a steeper curve with a wider radius. Over the next seven years, Lillehaugs improved their property by building a new house and garage. They eventually moved into their home in 1989.
[¶ 6.] In 1992 William Burkhart purchased lots 8 and 9 from Dr. Aspaas. At that time, the road or trail crossing lot 5 provided the only means of access to lots 8 and 9. Prior to this purchase Burkhart was aware that the road had been changed by the Lillehaugs ten years earlier. Burkhart began construction of a home on lots 8 and 9 in 1995. Until this point, no one had used the trail beyond lot 5 except occasionally during the summer months.
[¶ 7.] Concerning the additional appellants: Pat and Marjo Peters purchased lot 9 in 1993; Iwalana Gali, the surviving spouse of the late John Aye II, conveyed lots 2, 3 and 4 to her children in December 1993; and, in 1996 Iwalana conveyed lot 1 to the Iwalana Gali Trust.
[¶ 8.] In December 1999 Burkhart filed suit in the Fourth Judicial Circuit Court seeking a mandatory injunction compelling Lillehaugs to restore the road crossing lot 5 as it was prior to the change in 1978.
[¶ 9.] Our standard of review is well settled, In re Dokken, 2000 SD 9, ¶ 10, 604 N.W.2d 487, 490-91. We review a trial court's conclusions of law under the de novo standard, giving no deference to the trial court's conclusions of law. Osloond v. Osloond, 2000 SD 46, ¶ 6, 609 N.W.2d 118, 121. A mixed question of law and fact is treated in the same manner as a question of law and such questions are of the type which are freely reviewable by the court without deference to the lower court. Matter of Groseth Intern., Inc., 442 N.W.2d 229, 232 (S.D.1989).
[¶ 10.] Whether the modification of the easement by the servient-estate owner (Lillehaugs) without specific concurrence by the dominant-estate owner (Burkhart) was reasonable.
[¶ 11.] In its findings of fact and conclusions of law and the incorporated memorandum opinion, the trial court determined that Lillehaugs, as the owners of the servient tenement, were entitled to make reasonable changes to the servient estate so long as they did not unreasonably interfere with the dominant tenement owners' use of the easement. See 25 Am.Jur. (2d) Easements & Licenses § 76 (2002). The Restatement (Third) Property (Servitudes) § 4.8 (2000) provides:
[¶ 12.] The trial court determined, after considering all of the evidence presented and viewing the property, it was not shown by the greater weight of the evidence that the changes to the road in 1982 were an unreasonable alteration. In so holding, the trial court determined that the changes did not lessen the utility of the easement, increase the burden on the Burkhart's use and enjoyment of the easement, or frustrate the purpose for which the easement was created. In fact, the trial court determined that the existing roadway provided access substantially similar to what the road did in its original configuration. In this regard, finding of fact 18 stated:
The original road was approximately 9 feet wide. The radius of the curve prior to the change in 1982 was such that larger vehicles could not have made the turn to access the plaintiff's property. Both the present road and the original road allowed seasonal access with a two-wheel drive vehicle and year-round access by a four-wheel drive vehicle
[¶ 13.] Additionally, the trial court found the changes made in the road in 1982 were beneficial to Burkharts. For example, finding of fact 19 states: "It is unlikely that the cement trucks and loghauling vehicles involved in the construction of the Burkhart home could have reached lots 8 and 9 on the old, narrower "switchback" road."
[¶ 14.] The trial court also determined the current finished road, though containing an increased incline, is wider than the "cat-trail" and lessens the sharp turn in the road that previously existed. This finding is supported by the testimony of both parties' expert witnesses. When asked about the condition of the road prior to 1982 Burkhart's expert testified:
[B]ecause the degree of the curvature was such that you would almost have to come to a stop to make the curve. It was obvious—It was like a switchback is essentially the best way to describe that curve. And to make it up that curve, even with a vehicle, I'm sure they had to get very slow to do the turn.
Lillehaug's expert also opined that it would be difficult for most vehicles to negotiate the old switchback turn.
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