Cleveland v. Tinaglia

• Citation: 1998 SD 91,582 N.W.2d 720
• Decision Date: 28 April 1998
• Docket Number: 20191,Nos. 20183,s. 20183
• Parties: Mark CLEVELAND, Kandy Cleveland, John Hollmann, Elisabeth Hollmann, Frank Birkholt, Frances Birkholt, and Keith Blessing, Plaintiffs and Appellees, v. J. Dean TINAGLIA and Madonna Tinaglia, Defendants and Appellants, and Michael P. Ortner and Carl F. Oberlitner, Defendants and Appellees. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 720

582 N.W.2d 720

1998 SD 91

Mark CLEVELAND, Kandy Cleveland, John Hollmann, Elisabeth Hollmann, Frank Birkholt, Frances Birkholt, and Keith Blessing, Plaintiffs and Appellees, v. J. Dean TINAGLIA and Madonna Tinaglia, Defendants and Appellants and Michael P. Ortner and Carl F. Oberlitner, Defendants and Appellees.

Nos. 20183, 20191.

Supreme Court of South Dakota.

Considered on Briefs April 28, 1998.

Decided Aug. 12, 1998.

Rehearing Denied Sept. 14, 1998.

Todd D. Hauge of Bakewell, Hauge & Vander Heide, Custer, for defendants and appellants.

Patrick M. Ginsbach of Farrell, Farrell & Ginsbach, Hot Springs, for plaintiffs and appellees.

Michael P. Ortner, Hot Springs, for defendants and appellees.

AMUNDSON, Justice.

¶1 Mark and Kandy Cleveland, brought a declaratory judgment action against J. Dean Tinaglia and Ladonna Tinaglia to determine, among other things, the extent and location of easements over Clevelands' property. The circuit court determined the existence and width of the easements with reference to the time of their creation. Tinaglias appeal. We affirm.

FACTS

¶2 Tinaglias own approximately 3,000 acres of land in Fall River County, South Dakota. This property lies south of Highway 18-385 and the Fall River. To travel from Highway 18-385 to their property, Tinaglias must cross property owned by various other parties. This declaratory judgment action was instituted by some of the landowners who own property that Tinaglias cross while traveling to different parts of the 3,000 acres they own. These landowners include Mark and Kandy Cleveland, John and Elizabeth Hollman, Keith Blessing, and Frank and Frances Birkholt (collectively referred to as Landowners). ^*

¶3 This dispute involves the existence, extent, and location of certain easements in favor of Tinaglias. The first is referred to as the main route to the Tinaglia residence (Main Route). This crosses the southeast corner of Clevelands' property and is the primary route to Tinaglias' residence. The Main Route is a narrow, dirt road with no apparent improvements such as asphalt, gravel, chip and seal, etc. The history of the use of the road, as shown by the evidence, reveals that the road supports essentially a single lane of travel.

¶4 The second disputed easement involves what is referred to as Brady Canyon Road. Brady Canyon Road cuts across the northeast part of Clevelands' property and serves to allow Tinaglias access to a part of their ranch property known as Brady Canyon. It is more or less a trail with grass growing up in the middle of two vehicle tracks.

¶5 The third disputed easement concerns what is referred to as the Cut Across Road. This road traverses the northwest and center of Clevelands' property and serves to connect the Main Route to Brady Canyon Road. The Cut Across Road originally served to shorten the travel time for Tinaglias to get from the Main Route to Brady Canyon.

¶6 The fourth disputed easement area concerns what is referred to as the Hagen Route. The Hagen Route crosses property owned by Keith Blessing that he tentatively agreed to sell to Birkholt and Hollman. The Hagen Route was originally used by Tinaglias to reach their property, as it contained the only bridge over the Fall River, which lies between Highway 18-385 and their property.

¶7 The fifth disputed issue involves what is known as the Ittzes/Mower Route. This road was the subject of a previous lawsuit that established it as a public road. Tinaglia v. Ittzes, 257 N.W.2d 724 (S.D.1977). Part of the Ittzes/Mower Route is used to connect Highway 18-385 to the Main Route to Tinaglias' property. This road has been improved. A culvert type bridge was installed sometime around 1981 that connects this part of the Ittzes/Mower Route with the Main Route. Previous to this, Tinaglias had to use the culvert bridge on the Hagen Route to cross the Fall River. However, Tinaglias preferred to use the more direct Ittzes/Mower Route and the new culvert bridge after its installation around 1981. The Hagen Route's culvert bridge washed out in 1983 and has not been replaced.

¶8 Another disputed issue involves the alleged existence of an easement over what is known as Church Road. Church Road is on Clevelands' property and travels south from Cut Across Road to Tinaglias' property. It is used by Tinaglias to maintain fence at an isolated area of their property.

¶9 At one time, all the property that is involved in this action was owned by Alvin and Marion Katt. Katts sold part of their holdings to Tinaglias in 1972, which consisted of all or part of sections 1, 5, 6, 31, and 36, of Township 7 South, Range 6 East of the Black Hills Meridian, Fall River County, South Dakota (hereinafter Tinaglias' property). Two warranty deeds conveyed the property from Katts to Tinaglias. The first, on July 20, 1972, deeded three different five-acre tracts with easements and rights-of-way. Then, on November 2, 1972, Katts deeded the balance of the approximately 3,000 acres to Tinaglias.

¶10 The November 2, 1972, deed describes "some" of the roadways and easements, including the Hagen Route, Ittzes/Mower Route and two roads which connect the Hagen Route and the Ittzes/Mower Route. Beyond the descriptions of a few of these roads, the deed of November 2, 1972, as well as the deed of July 20, 1972, purport to give "the right of ingress and egress to the real estate hereby conveyed through and over existing trails and roadways." These deeds did not establish any specific width for any of the easements.

¶11 Katts also granted Tinaglias an easement executed May 28, 1974, for the purpose of putting in the new bridge and road that would connect the Ittzes/Mower Route to the Main Route to Tinaglias' property. This new bridge allowed Tinaglias to travel a more direct route to their property than that offered by the Hagen Route. This 1974 easement also did not specify any width, but it did recite the easement granted in the previous deeds as being "over and across existing trails and roads."

¶12 Originally, Michael P. Ortner and Carl F. Oberlitner were also involved as plaintiffs in this action, but they reached settlement with Tinaglias and became defendants as well. As part of the settlement, Ortner and Oberlitner granted a sixty-six-foot wide easement to Tinaglias over part of the Main Route to Tinaglias' house. This easement adjoins Clevelands' property. However, Clevelands mistakenly placed a portable shed, electrical pedestal, and fenceline on Ortner and Oberlitner's property and within the easement granted to Tinaglias. As a result, Ortner and Oberlitner were joined as defendants regarding the placement of these improvements.

¶13 This matter was tried to the court, which, after viewing the premises, entered judgment limiting the width of the Main Route to fifteen feet, limiting the width of Brady Canyon Road to ten feet, limiting the width of the Cut Across Road to ten feet, and limiting the width and use of the Church Road to eight feet only for fence repair. The court made its decision based on the existence and width of the roadways at the time of the creation of the easements. The trial court further determined that Tinaglias had abandoned the Hagen Route and enjoined them from traveling over that roadway. The court's judgment also provided that Tinaglias were enjoined from widening the easement for the Ittzes/Mower Route. Additional facts will be noted when they become relevant.

¶14 Tinaglias appeal, asserting the following issues:

1. Whether easements granted by warranty deeds in 1972 are limited to the roadway width as it existed in 1972.

2. Whether the easement known as the Hagen Route was established by grant, implication, or by prescription and, if so, has the Hagen Route been abandoned.

3. Whether the public easement known as the Ittzes/Mower Route was limited to its hard surface width?

4. Whether the easements located in the southeast quarter of the northwest quarter of section 32 were established by plat, grant, implication or prescription and, if so, whether any of said easements have been abandoned.

5. Whether Clevelands constructed improvements off of their premises and, if so, whether the improvements should be removed.

6. Whether Landowners should be restrained from obstructing, impeding, or interfering with Tinaglias' free and open use, repair, and improvement of easements and roadways.

¶15 By notice of review, Landowners bring the following issue for our review:

1. Whether the trial court erred in determining that Tinaglias were entitled to an easement for Brady Canyon Road, Cut Across Road, and Church Road.

STANDARD OF REVIEW

¶16 "We have held that a trial court's findings of fact will not be disturbed unless they are clearly erroneous." Fanning v. Iversen, 535 N.W.2d 770, 773 (S.D.1995) (quoting Knudsen v. Jensen, 521 N.W.2d 415, 418 (S.D.1994)). Clear error is shown only when, after review of all the evidence, "we are left with a definite and firm conviction that a mistake has been made." Id.(citing Cordell v. Codington County, 526 N.W.2d 115, 116 (S.D.1994)). Conclusions of law are reviewed de novo. Id. Statutes are interpreted "under a de novo standard of review without deference to the decision of the trial court." In re Estate of Jetter, 1997 SD 125, p 10, 570 N.W.2d 26, 28 (citations omitted).

DECISION

¶17 1. Width of Easements

¶18 Tinaglias contend that the trial court erred in restricting the width of the easements with reference to the time of their creation in the early 1970s. However, "[t]he extent of an easement is determined by the terms of the grant or by the nature of the enjoyment by which it was acquired." Travis v. Madden, 493 N.W.2d 717, 719 (S.D.1992) (citation omitted). "The terms of the grant, as they can be learned either by words clearly expressed, or by just and sound construction, will regulate and measure the rights of the grantee." Id. (quoting Salmon v. Bradshaw, 84 S.D. 500, 505-06, 173 N.W.2d 281, 284 (1969)).

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