Fuoss v. Dahlke Family Ltd. P'ship
| Decision Date | 04 January 2023 |
| Docket Number | #29435 |
| Parties | Todd FUOSS, Plaintiff and Appellee, v. DAHLKE FAMILY LIMITED PARTNERSHIP and Rodney L. Mann, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
MARTY J. JACKLEY, CATHERINE A. SEELEY, of Gunderson, Palmer, Nelson & Ashmore, LLP, Pierre, South Dakota, Attorneys for defendants and appellants.
A. JASON RUMPCA, ROBERT C. RITER, JR. of Riter Rogers, LLP, Pierre, South Dakota, Attorneys for plaintiff and appellee.
[¶1.] Todd Fuoss initiated this action to acquire adverse possession over a portion of land owned by the Dahlke Family Limited Partnership and Rodney Mann. Fuoss also sought a prescriptive easement over their property and requested injunctive relief providing him access over the land. After a court trial, the circuit court accepted Fuoss's adverse possession ownership claim and also granted him an access easement under theories of prescriptive easement, easement by necessity, and an easement implied by prior use. The Dahlke Family Limited Partnership and Mann appeal. We reverse and remand the case for further proceedings.
[¶2.] Rodney Mann is a partner in the Dahlke Family Limited Partnership (the Partnership), which owns land in rural Jones County. Todd Fuoss is an adjoining landowner who maintains a fence encroaching on land to which Mann and the Partnership hold record title. Relevant to this appeal, the Partnership owns "The Northeast Quarter of Section 9, Township 3 South, Range 30 East, in Jones County, South Dakota," (the Partnership Property or Section 9),1 while Fuoss owns the property directly east, described as "All of Section 10, Township 3 South, Range 30 East of the Black Hills Meridian, Jones County, South Dakota" (the Fuoss Property or Section 10).
[¶3.] Commonly referred to as Bull Creek Road, 248th Street runs along the north end of the Partnership Property and the Fuoss Property and spans Bull Creek, which is a winding waterway with steep banks and a history of seasonal flooding. Bull Creek runs from the north and crosses under Bull Creek Road through a large drainage pipe near the boundary between the Partnership Property and the Fuoss Property.2 Bull Creek then runs to the southeast and cuts diagonally across the Fuoss Property, effectively dividing it into an east portion and a west portion.
[¶4.] The Partnership Property was originally purchased by Mann's grandfather, Ludwig Dahlke, by way of a 1946 contract for deed with Jasper and Laura Hullinger. In June 1948, a different Hullinger couple—Clarence and Anna Marie—conveyed the land to Ludwig and his wife. The record does not indicate when or how Jasper and Laura Hullinger transferred their interest to Clarence and Anna Marie Hullinger. The Partnership Property has remained in the Dahlke family since it acquired the property, and in 1999, Earl Dahlke deeded a one-half interest of the land to the Partnership.
[¶5.] The Fuoss Property also traces its history to Clarence and Anna Marie Hullinger, who deeded the Fuoss Property and other real property to Leo Nichols in May 1948—just one month prior to transferring the Partnership Property to Ludwig Dahlke. The Fuoss Property then passed from Leo Nichols to Darrel Lintvedt who began using it for ranching in 1964. Darrel transferred the Fuoss Property to Rodney Sather in 1996, and Sather conveyed the land by warranty deed to Todd Fuoss in 2003.
[¶6.] When Darrel took possession of the Fuoss Property in 1964, an east/west fence ran along Bull Creek Road and over Bull Creek itself. From a point along the east/west fence on the west side of Bull Creek, another fence extended south to divide the two properties. Because Bull Creek cuts close to the property line between Sections 9 and 10 and was prone to flooding, the northwest portion of the fence frequently washed out, forcing Darrel to replace or repair the fence often. During his trial deposition, Darrel explained that a few years after he purchased the Fuoss Property, he approached Ludwig and asked for permission to move the northern portion of the fence farther to the west for convenience and to prevent additional damage to the fence. Ludwig looked at the land with Darrel and granted him verbal permission both to move the fence to its current location on the Partnership Property and to use the narrow portion of Partnership Property on the east side of the new fence line for grazing cattle.
[¶7.] After obtaining Ludwig's permission, Darrel's son, Brian Lintvedt, moved the northwest portion of the fence to the west, away from Bull Creek and well onto the Partnership Property. The portion of the fence that was moved ran south and connected with the existing fence where Bull Creek wends its way to the southeast, through Section 10 and away from the Partnership Property. This fence alteration created a triangular area, approximately one to one and one-half acres in size. The triangular area was located within Section 9 and legally belonged to Ludwig, but it became separated from the rest of what became the Partnership Property by the fence and permissively used by Darrel and the subsequent owners of what became the Fuoss Property. Determining the current, competing ownership claims to this triangular area (the Disputed Area) is at the heart of this appeal.
[¶8.] Also at issue is access to the Fuoss Property through the Partnership Property. The first field approach west of Bull Creek and off Bull Creek Road leads directly south to a hay yard located on the Partnership Property and used by Mann. Prior to moving the fence to its current location, Darrel used the approach on the Partnership Property to access the Fuoss Property through what is now the hay yard using a let-down gate along the north/south fence. At the same time that Darrel received permission to move the fence, he sought permission from Ludwig to replace the let-down with an actual gate so he could access the Disputed Area and the Fuoss Property west of Bull Creek more conveniently. Ludwig again obliged and granted verbal permission to install the gate. The following is an aerial image of the area annotated by the parties and oriented so that north appears on the left side of the page.
[¶9.] Darrel sold the Fuoss Property to Rodney Sather in 1996. According to Sather, Darrel specifically told him that he would not own the Disputed Area and that his access to the west portion of Section 10 was the result of a gentlemen's agreement with Ludwig, who had granted Darrel permissive use of the property. During his ownership, Sather constructed an electric fence on the Fuoss Property along an old fence line, closer to Bull Creek and consistent with where he believed the property line to be. The electric fence functioned to keep the bison he pastured out of Bull Creek. Though he expressed some uncertainty given the intervening years, Sather testified that he generally accessed the Fuoss Property on the west side of Bull Creek through the gate in the hay yard.
[¶10.] Sather also placed "No Trespassing" signs bearing his name on the east/west fence along Bull Creek Road, including one on the corner post of the fence line bordering the Disputed Area. Sather testified that he did not place the signs to assert ownership of the Disputed Area, but rather to keep unauthorized hunters off both parcels.
[¶11.] Nevertheless, Fuoss testified that he believed he had purchased the Disputed Area. Sather testified that he never specifically told Fuoss that he was not the record title holder of the Disputed Area, or that the Disputed Area was not part of the Fuoss Property that Fuoss was purchasing. However, Sather indicated that the legal description of the Fuoss Property was restricted to Section 10, which, he explained, was consistent with his understanding that he did not own any portion of Section 9.
[¶12.] Mann testified that he and the Partnership continued to permissively allow Fuoss use of the Disputed Area and access to the Fuoss Property over the Partnership Property, just as they had for Fuoss's predecessors. However, in 2016, the Partnership and Mann fenced in their hay yard and placed a gate across the approach in that area, apparently in response to what Mann considered to be unauthorized hunting in the area. Later, Mann padlocked the gate across the approach, preventing Fuoss's access to the Disputed Area by vehicle. In response, Fuoss placed a wire gate on the east/west fence running along the north edge of the Disputed Area so he could access his cattle located on the Disputed Area and the west half of the Fuoss Property. Mann then blocked Fuoss's access via that point of entry as well.
[¶13.] Fuoss commenced this action, claiming he owned the Disputed Area by virtue of adverse possession and seeking a prescriptive easement for ingress and egress over the Partnership Property via the hay yard. The case was ultimately tried to the circuit court.
[¶14.] One of the central issues at trial centered upon whether Fuoss's possession of the Disputed Area, and that of his predecessors, was hostile—a necessary element of adverse possession. Fuoss argued that the hostility element was satisfied by the doctrine of acquiescence, which presumes hostility in situations where both parties acquiesce to a boundary line for the statutory period required for adverse possession. See City of Deadwood v. Summit, Inc. , 2000 S.D. 29, ¶ 22, 607 N.W.2d 22, 28. Fuoss argued that Darrel himself satisfied the elements of adverse possession over the Disputed Area after moving the fence and using the Disputed Area for over twenty years.
[¶15.] Mann and the Partnership had a different view and argued that none of the previous owners of the Fuoss Property ever satisfied the hostility element of adverse possession because their use of the Disputed Area was always permissive. They claim Ludwig granted Darrel express verbal permission to move the fence to the west and to then use the property located east of it. But,...
To continue reading
Request your trial