Cuka v. Jamesville Hutterian Mut. Soc.

• Decision Date: 01 July 1980
• Docket Number: No. 12738,12738
• Citation: 294 N.W.2d 419
• Parties: Donald M. CUKA, Plaintiff and Appellant, v. JAMESVILLE HUTTERIAN MUTUAL SOCIETY and all persons unknown who have, or claimto have any Interest or Estate in or encumbrances upon the premises describedin the complaint, Defendants. JAMESVILLE HUTTERIAN MUTUAL SOCIETY, Third Party Plaintiff and Appellee, v. Lorraine SEIGEL, Executrix of the Estate of George Seigel, deceased, OliviaMiley, formerly known as Olivia Seigel, Executrix of the Estate of ArnoldSeigel, deceased, Gerald I. Geraldson, Linda H. Geraldson, WilliamBraunesreither, EvelynBraunesreither and William Heinsch, Third Party Defendants.
• Court: South Dakota Supreme Court

Page 419

294 N.W.2d 419

Donald M. CUKA, Plaintiff and Appellant, v. JAMESVILLE HUTTERIAN MUTUAL SOCIETY and all persons unknown

who have, or claimto have any Interest or Estate

in or encumbrances upon the premises

describedin the complaint,

Defendants.

JAMESVILLE HUTTERIAN MUTUAL SOCIETY, Third Party Plaintiff and Appellee, v. Lorraine SEIGEL, Executrix of the Estate of George Seigel,

deceased, OliviaMiley, formerly known as Olivia Seigel,

Executrix of the Estate of ArnoldSeigel, deceased, Gerald I.

Geraldson, Linda H. Geraldson, WilliamBraunesreither,

EvelynBraunesreither and William Heinsch, Third Party

Defendants.

No. 12738.

Supreme Court of South Dakota.

Argued Feb. 25, 1980.

Decided July 1, 1980.

R. J. Krueger, Jr. of DeVany & Krueger, Vermillion, for plaintiff and appellant.

Larry F. Hosmer, Yankton, for third party plaintiff and appellee.

MORGAN, Justice.

This appeal stems from a quiet title action initiated by appellant against appellee and other unknown defendants. The trial court entered judgment in favor of appellee and found that it had established ownership by adverse possession to the disputed 35 acres of land. Appellant appeals from that portion of the judgment which gives appellee title to 13.4 acres of wooded area within the disputed land. We affirm.

In 1952 appellee purchased Lots 2, 3, 4, and 5 of Section 2, Township 95 North, Range 56 West in Yankton County, South Dakota. Since that time it has cultivated the land, in addition to the disputed land, and has used portions of it to graze cattle. It slowly began clearing out the trees from the wooded portion of the disputed land prior to 1955, and by the middle 1960s had cleared most of the trees from that area.

Appellant purchased Lot 13 of the same section by warranty deed in 1970. He later bought, pursuant to a quitclaim deed, that portion of Lot 12 of the same section which lays east of the James River. He purchased this latter portion in 1975 for about $30 or $35. The prior owner of Lot 13 was aware that appellee was treating that land as its own, but he failed to take any action to stop it. Appellant was also aware of appellee's use of the land.

The land in question is bordered by the James River and by land owned by appellee. No fences or other such enclosures separate appellee's land from what appellant claims to be his, and no fence borders the land along the James River. Since the James River frequently floods the disputed area, neither party erected any fences.

Appellant can reach the disputed land directly from his land only during wintertime, since he can then walk across the frozen river. During other times, however, he must cross appellee's land to reach it. Appellant and his predecessors in title had only occasionally used the disputed land, and then only during the wintertime.

Both appellant and appellee paid taxes on more land than each owned. In 1974 appellant had his land surveyed to ascertain exactly what land he owned. From the survey he found out that appellee was in fact using his land. In 1974 or 1975 appellant approached appellee about its use of his property. After it refused to abandon the land, appellant sued to quiet title, bringing this action in June of 1976.

At a court trial appellant claimed title to the entire 35 acres by deed, while appellee claimed title by adverse possession. The trial court held that appellee had established ownership to all 35 acres by adverse possession. On appeal appellant concedes that appellee established ownership to 21.6 acres by regularly cultivating it for more than twenty years. He argues, however, that appellee failed to establish ownership by adverse possession to 13.4 acres. These 13.4 acres consisted of a wooded fringe on three sides of the tract adjoining the James River bank. This is the portion which appellee began clearing prior to 1955, but cleared slowly over a number of years. Appellant argues that the twenty-year statutory adverse possession period could not begin to run until the land was cleared of the trees.

A trial court's rulings and decisions are presumed to be correct and this court will not seek reasons to reverse. Johnson v. Johnson, 291 N.W.2d 776 (S.D.1980); Lytle v. Morgan, 270 N.W.2d 359 (S.D.1978); Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D.1976). A trial court's findings of fact are also presumptively correct and the burden is upon appellant to show error in the findings. Hilde v. Flood, 81 S.D. 25, 130 N.W.2d 100 (1964). "The findings of the trial court will not be disturbed on appeal unless the evidence clearly preponderates against them, or when supported by credible evidence." Feight v. Hansen, 81 S.D. 84, 92, 131 N.W.2d 64, 68 (1964).

The South Dakota laws dealing with adverse possession are contained in SDCL 15-3. Appellant is the record owner of the land. Under SDCL 15-3-7 he is presumed to have been possessed of the property within the time required by law unless someone else proved adverse possession for at least twenty years prior to the commencement of the action. "The burden of proving title by adverse possession is upon the one who asserts it." Broadhurst v. American Colloid Company, 85 S.D. 65, 74, 177 N.W.2d 261, 266 (1970); Wallace v. Dunton, 30 S.D. 598, 139 N.W. 345 (1913). Appellee, therefore, must have proven that it had adversely possessed the land so as to obtain title.

Appellant urges this court to set the standard of proof for adverse possession at "clear and convincing" evidence. This court has previously held that "(i)n such an action . . . where the objective of the litigant is to establish an interest in land that is inconsistent with the record title, his proof must be stronger, more intense or of a higher degree than is required in ordinary litigation. . . . (S)uch proof must be clear, satisfactory and convincing." Lenker v. Musilek, 75 S.D. 60, 62, 59 N.W.2d 417, 418 (1953). Although that case did not involve adverse possession, it was a quiet title action. We therefore hold that to establish by adverse possession ownership and title which is inconsistent with the record title, the proof must be by clear and convincing evidence.

Under SDCL 15-3-13 a person may claim title to property which he has adversely held, even though he does not have claim to said title upon a written instrument. In order to establish an adverse possession under this statute, the adverse claimant must either protect the land by a substantial enclosure or usually cultivate or improve the land, and he must do either act for a continuous period of twenty years. SDCL 15-3-10. Only that portion of land which has been actually and continuously occupied may be claimed when there is no written instrument forming the basis of the claim. SDCL 15-3-12.

The trial court in this case found that there were no...