Dehaven v. Hall

Decision Date02 July 2008
Docket NumberNo. 24271.,No. 24261.,24261.,24271.
PartiesJames and Carol DeHAVEN, Plaintiffs and Appellants, v. Don and Sherrie HALL, Defendants and Appellees.
CourtSouth Dakota Supreme Court

John K. Nooney of Thomas, Nooney, Braun, Solay & Bernard, LLP, Rapid City, South Dakota, Attorneys for defendants and appellees.

ZINTER, Justice.

[¶ 1.] James and Carol DeHaven (DeHavens) appeal from a judgment declaring that Don and Sherrie Hall (Halls) possess a permanent right-of-way easement over DeHavens' property, ordering Halls to reasonably maintain and repair the easement, and granting DeHavens $2,358 in damages as well as taxation of disbursements. Halls filed a notice of review. We affirm in part, reverse in part, and remand.

[¶ 2.] DeHavens and Halls owned adjacent tracts of land in Custer County, South Dakota. In 1992, DeHavens' predecessor in interest granted Halls a thirty-foot easement across DeHavens' property for purposes of ingress and egress. The easement provided:

For purposes of ingress and egress, Grantors hereby grant to Grantees a permanent easement, 30' wide. .... Said roadway or access right-of-way shall be maintained by GRANTEES and no person or persons shall interfere with GRANTEES' benefit of the easement hereinbefore described....

Halls used the easement for access to their home on a daily basis since 1992. The easement was also used for access to DeHavens' home, as well as access to property owned by James Wirth and Ted Schenk.

[¶ 3.] Two healthy mature pine trees marked the entrance to the roadway on the easement, which was initially a "two-track" trail. The traveled portion of the roadway was approximately fourteen feet wide. One of the pine trees was within the thirty-foot easement on DeHavens' property, seventeen feet from the easement's west boundary. The other tree was on James Wirth's property and outside the easement. A wire gate was strung between the two trees to confine horses. From the gate there was a very sharp angle onto the easement roadway that led to DeHavens' home and then to Halls' home.

[¶ 4.] Since 1992, the Halls graveled, bladed, and plowed snow from the road. In 1998, however, when DeHavens built their home, they improved the roadway from the gate to their driveway. They removed the road grade, ditched the north side of the road, installed a culvert, and surfaced the road. The cost of the improvements was $5,700. DeHavens asked Halls to share in the cost, but Halls did not have the money to do so.

[¶ 5.] In 2004, DeHavens' contractor examined the easement from its beginning to Halls' property. The portion of the road DeHavens used needed ditch repair and some resurfacing. The condition of the next portion of the road beyond DeHavens' driveway was considerably worse because it was never surfaced and was "beat out" to the extent that it required Halls to drive onto DeHavens' pasture in places to avoid ruts and mudholes. DeHavens' contractor estimated that it would cost $9,700 to repair the entire easement roadway.

[¶ 6.] In August 2004, DeHavens removed the wire gate that was strung between the two trees. They replaced it with a fourteen-foot steel gate with support poles and rails. They placed the gate ten feet south of the pine trees.

[¶ 7.] In the fall of 2004, Halls listed their property for sale with a realtor. The realtor told Halls that the realtor was having difficulty selling the property because potential buyers had concerns about maneuvering longer horse trailers through the entry to the easement onto the roadway. Halls ultimately negotiated a sale agreement contingent upon establishing adequate access to their property.

[¶ 8.] In early October 2004, Halls called DeHavens and complained that the two pine trees at the entry of the easement interfered with access to the easement, and it was difficult to pull Halls' gooseneck trailer through the steel gate due to the angle of the turn. On December 13, 2004, Halls had the trees cut down. The trees were left where they fell; their stumps were left sticking out of the ground.

[¶ 9.] On December 22, 2004, Halls' attorney advised DeHavens that the steel gate obstructed Halls' use of the easement and if DeHavens did not remove it within five days, Halls would remove it and charge DeHavens for the cost. DeHavens obtained a temporary order restraining Halls from removing the gate. The order was signed on December 28, 2004, and the original was filed on January 3, 2005.

[¶ 10.] On January 6, 2005, DeHavens filed this lawsuit seeking declaratory relief and damages. A month later, on February 10, 2005, prior to trial, the parties and their respective counsel met in order to resolve the issue of the gate. They reached an agreement to remove the gate. DeHavens understood that in the spring they would remove the steel gate, replace it with a wire gate, and install a thirty-foot permanent metal gate at their property line. Halls understood that they could remove the gate. Following the meeting, Halls, on advice of counsel,1 removed the gate, cut down the support poles with a chain saw, and left the gate and poles lying in the ditch. Two days later, DeHavens installed a thirty-foot wire gate. The circuit court subsequently entered an order to show cause why Halls should not be held in contempt for violating the temporary restraining order. The court, however, never ruled on the matter.

[¶ 11.] Prior to trial, the court granted Halls partial summary judgment on DeHavens' claim that the easement had been extinguished due to lack of maintenance. It held that "the subject easement contains no express provision for forfeiture or termination of the said easement in the event of a failure by [Halls] to maintain said easement."

[¶ 12.] Following a court trial, the court entered findings of fact, conclusions of law, and a judgment. The court concluded that: (1) Halls had a thirty-foot easement across DeHavens' property for ingress and egress; (2) neither the tree within the easement nor the gate, both of which Halls cut down, interfered with Halls' reasonable use of the easement; and (3) Halls, or their successors, as a matter of law under the grant, were responsible for reasonably maintaining the easement. DeHavens were awarded $858 for the cost to repair the gate and support posts, $1,500 for the value of the tree that was in the easement on DeHavens' property, and $162.83 in disbursements.

[¶ 13.] DeHavens appeal raising five issues:

Whether, under the terms of the grant, Halls forfeited the easement for failure to maintain it.

Whether, in addition to declaratory relief, DeHavens were entitled to damages related to the maintenance of the easement.

Whether Halls should have been held in contempt for removing the steel gate.

Whether DeHavens were entitled to damages to clean up the debris from Halls cutting down the tree and damages for the removal of the steel gate.

Whether DeHavens were entitled to additional disbursements.

Halls filed a notice of review raising one issue:

Whether the trial court erred in awarding DeHavens any damages for replacing the gate, damages for the value of tree, and disbursements.

I Extinguishment of an Easement

[¶ 14.] DeHavens argue that the maintenance requirement in the grant is a condition subsequent. DeHavens therefore contend that by the terms of the grant, Halls' easement was forfeited2 because they failed to maintain the easement. In granting Halls' motion for partial summary judgment, the circuit court noted that "the subject easement contains no express provision for forfeiture of said easement in the event of a failure of [Halls] to maintain said easement." In reviewing this summary judgment, "[w]e affirm the circuit court `[if] there are no genuine issues of material fact and the legal questions have been correctly decided.'" Culhane v. Western Nat. Mut. Ins. Co., 2005 SD 97, ¶ 5, 704 N.W.2d 287, 289 (quoting Sanford v. Sanford, 2005 SD 34, ¶ 11, 694 N.W.2d 283, 287).

[¶ 15.] The extent of an easement "is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired." SDCL 43-13-5.

The terms and extent of an easement by grant are ascertained either by the "words clearly expressed, or by just and sound construction" of the easement document. [Picardi v. Zimmiond, 2004 SD 125, ¶ 16, 689 N.W.2d 886, 890 (Picardi I)] (citing Cleveland v. Tinaglia, 1998 SD 91, ¶ 18, 582 N.W.2d 720, 724 (quoting Salmon v. Bradshaw, 84 S.D. 500, 505-06, 173 N.W.2d 281, 284 (1969))). We look first to the language of the grant itself to discover the extent and nature of the easement agreement and its terms. Salmon, 84 S.D. at 505, 173 N.W.2d at 284 (citation omitted). We review the language used by giving terms their plain and ordinary meaning, and utilize no additional interpretation in the absence of ambiguity. Id. (citation omitted). If the terms of the agreement are specific in nature, the terms are "decisive of the limits of the easement." Id. (quoting 25 Am.Jur.2d, Easements and Licenses, § 73). We will not resolve disputes over unambiguous language by resorting to what the parties might have included in a contract. Wessington Springs Educ. Ass'n v. Wessington Springs School Dist. # 36-2, 467 N.W.2d 101, 104 (S.D.1991) (citing Raben v. Schlottman, 77 S.D. 184, 190-191, 88 N.W.2d 205, 208 (1958)).

Picardi v. Zimmiond (Picardi II), 2005 SD 24, ¶ 20, 693 N.W.2d 656, 662. Additionally, "clear language is necessary to create either a condition subsequent or precedent...." City of Huron v. Wilcox, 17 S.D. 625, 628, 98 N.W. 88, 89 (1904). "Forfeitures and conditions subsequent not being favored in law, a deed will not be construed to create a conditional estate unless the language used unequivocally indicates an intention ... to that effect." Id.

[¶ 16.] In Kiser v. Warner Robins...

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