Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, No. 18113

• Court: Supreme Court of South Dakota
• Writing for the Court: WUEST; MILLER
• Citation: 506 N.W.2d 138
• Parties: The ESTATE OF Martha Marie BILLINGS, Deceased, Alice Lancaster, Agent of the Court, Plaintiff and Appellee, v. DEADWOOD CONGREGATION OF JEHOVAH WITNESSES, Defendant and Appellant. . Considered on Briefs
• Decision Date: 25 May 1993
• Docket Number: No. 18113

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506 N.W.2d 138 The ESTATE OF Martha Marie BILLINGS, Deceased, Alice
Lancaster, Agent of the Court, Plaintiff and Appellee,
v.
DEADWOOD CONGREGATION OF JEHOVAH WITNESSES, Defendant and Appellant. No. 18113. Supreme Court of South Dakota. Considered on Briefs May 25, 1993.
Decided Sept. 22, 1993.
Rehearing Denied Oct. 22, 1993.

Leroy Hill, Belle Fourche, for plaintiff and appellee.

Reed C. Richards, Richards and Richards, Deadwood, for defendant and appellant.

WUEST, Justice.

This is an appeal by the Deadwood Congregation of Jehovah Witnesses (Congregation) from a judgment finding it interfered with a contract to sell real property and did not acquire the property by adverse possession. Congregation also appeals the trial court's denial of a new trial or judgment notwithstanding the verdict. We affirm in part, reverse in part and remand.

FACTS

Martha Marie Billings (Billings) acquired title to lots 9 through 12, block one, Riverside Addition near the City of Deadwood by tax deed from Lawrence County in 1934. Lots 5 through 8 were acquired by Henry Hallock (Hallock) in 1926. Hallock lived in a house on his property. A garage, which was torn down in 1988, and a fence were located near the boundary of lots 8 and 9. A survey in 1970 disclosed the garage was on the Billings property.

In the 1960s and 1970s Billings rented a warehouse on her property to Darrell Murray (Murray) for his used car business. Murray purchased the next-door Hallock property in 1966 and sold it to the Congregation in 1972. Congregation expanded its existing Kingdom Hall in 1984. Believing the boundary between lots 8 and 9 was the old garage and fence, the Congregation rented the garage to a third party for two years and tore down the deteriorating building in 1988.

Billings died in 1981. In 1990, Billings' estate and Elvis Hicks (Hicks) signed a contract for Hicks to purchase the property for $50,000. A subsequent survey disclosed that the Kingdom Hall and its adjacent parking lot encroached onto lot 9 of the Billings property.

Congregation was notified of the court hearing to confirm the estate's sale to Hicks. Congregation appeared at the hearing and claimed it had acquired the disputed portion of the property by adverse possession. Nonetheless, the court confirmed the sale.

Hicks then withdrew from the contract because the Kingdom Hall encroached onto the property and Congregation was claiming ownership through adverse possession. Billings brought an action to restrain Congregation from entering onto the land, for monetary damages from the loss of the sale, for reasonable rent for the encroachment and for the costs of removing the building from the land. Congregation counterclaimed claiming adverse possession.

At trial, the jury determined that Congregation had interfered with the sale of land to Hicks, that it had not acquired the land by adverse possession and awarded $55,822 in damages to Billings. Congregation moved for and was denied a judgment notwithstanding the verdict or a new trial.

Congregation appeals stating three issues. We address all issues, noting additional facts where necessary.

I. DID THE TRIAL COURT ERR IN DENYING CONGREGATION'S MOTION TO DISMISS BILLINGS' CLAIM OF INTERFERENCE WITH THE CONTRACT FOR SALE?

Congregation first asserts the trial court erred in denying its motion to dismiss Billings' action for interference with contract. A motion to dismiss under SDCL 15-6-12(b)(5) tests the legal sufficiency of the pleading, not the facts which support it. Hunt v. Hunt, 309 N.W.2d 818, 820 (S.D.1981). For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. Johnson v. Kreiser's, Inc., 433 N.W.2d 225, 226 (S.D.1988); Janklow v. Viking Press, 378 N.W.2d 875, 877 (S.D.1985). Our standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment--is the pleader entitled to judgment as a matter of law? See Jensen Ranch, Inc. v. Marsden, 440 N.W.2d 762, 764 (S.D.1989).

The record discloses no trial court ruling on Congregation's motion to dismiss. We

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stated the applicable rule in American Fed. Sav. & Loan Ass'n v. Kass, 320 N.W.2d 800 (S.D.1982):

If the trial court fails to decide or rule on a motion, nothing is presented for review in the appellate court. Where a ruling on a motion or objection is reserved by the court, the moving party must subsequently obtain a direct ruling in order to preserve the matter for appellate review. The burden of demanding a ruling rests upon the party desiring it. "If a party permits the court to proceed to judgment without action upon his motion or objection, he will be held to have waived the right to have the motion or objection acted upon."

Id. at 803 (citations omitted); Nauman v. Nauman, 336 N.W.2d 662, 663 (S.D.1983); State v. Sickler, 334 N.W.2d 677, 679 (S.D.1983).

As there was no trial court ruling on Congregation's motion to dismiss, it was waived. Congregation's motion was not preserved for appeal to this court.

II. DID CONGREGATION ESTABLISH ADVERSE POSSESSION BY CLEAR AND CONVINCING EVIDENCE?

Possession of property is adverse to the true owner where occupancy of the land beyond the true boundary line is actual, open, visible, notorious, continuous and hostile. Taylor v. Tripp, 330 N.W.2d 542, 544 (S.D.1983). This is so even though such occupancy of the land was due to mistake and without an intention to claim the land of another. Johnson v. Bieglemeier, 409 N.W.2d 379, 381-82 (S.D.1987). Adverse possession must be established by clear and convincing evidence. Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 422 (S.D.1980). The person holding legal title to the property is presumed to have possession of the property; therefore, the burden of proof is on the party claiming adverse possession. Cuka, 294 N.W.2d at 421-22.

Congregation claims adverse possession under SDCL 15-3-12 and 15-3-13. The statutory period for adverse possession under these statutes is twenty years. SDCL 15-3-1. Although Congregation did not possess the property until 1972, the principle of "tacking" allows it to add its own claims to that of previous adverse possessors under whom it claims a right of possession. Walker v. Sorenson, 64 S.D. 143, 148, 265 N.W. 589, 591 (1936). Under this theory, if Hallock's and Murray's possession of the garage and land was adverse to Billings' interest, Congregation could tack its years of possession...