Gangle v. Spiry
| Citation | 916 N.W.2d 119 |
| Decision Date | 11 July 2018 |
| Docket Number | No. 28461,28461 |
| Parties | Gary J. GANGLE, Plaintiff and Appellee, v. A. William SPIRY and Patricia M. Spiry, Trustees of the A. William Spiry 2012 Irrevocable Trust, Defendants and Appellants. |
| Court | Supreme Court of South Dakota |
JOEL E. ENGEL III, Woods, Fuller, Shultz & Smith P.C., Sioux Falls, South Dakota, Attorneys for defendants and appellants.
GARY J. GANGLE, Lake City, South Dakota, Pro se plaintiff and appellee.
[¶ 1.] Gary Gangle brought an action to quiet title to real property owned by A. William Spiry (Spiry) and Patricia M. Spiry, as trustees of the A. William Spiry 2012 Irrevocable Trust, under a claim of adverse possession. Spiry opposed Gangle’s adverse-possession claim on the basis that Gangle and his predecessor in interest occupied the disputed property with Spiry’s consent. Spiry also filed a counterclaim against Gangle to quiet title to an adjacent property under a claim of adverse possession; however, Spiry voluntarily dismissed the counterclaim before trial. After conducting a bench trial, the circuit court found that Gangle was not subject to any oral agreement Spiry had with Gangle’s predecessor in interest and that Gangle was entitled to the disputed property by adversely possessing it for 40 years. In its final judgment, the circuit court also dismissed Spiry’s counterclaim with prejudice. Spiry appeals. We reverse the order of the circuit court and remand the case for entry of judgment consistent with this opinion.
[¶ 2.] Max Sckerl owned pasture land bordering Roy Lake, in Marshall County, South Dakota. Spiry approached Sckerl about purchasing property along the lake. Accordingly, Sckerl platted portions of his waterfront property into lots, and on October 8, 1968, Spiry purchased Lot 1 from Sckerl.1 The dimensions of Lot 1 were substantially larger and extended further east than the other lots platted by Sckerl. At the time, a fence did not exist between Lot 1 and Sckerl’s remaining pasture to the east. Spiry also purchased Lot 2 from Sckerl the following year, which borders Lot 1 to the south.2
[¶ 3.] On November 20, 1968, Gangle’s father purchased Sckerl’s pasture land to the east of Lot 1. In 1969, Gangle and his father constructed a barbed-wire fence running north and south through Lot 1 in an attempt to separate the newly acquired pasture land from Spiry’s property. Gangle was aware Spiry’s property extended east of the fence that he and his father constructed. Gangle testified, "I knew [Spiry] had property over there [to the east] but I never knew where his property was." The amount of Spiry’s property that Gangle and his father had fenced off was less than an acre.
[¶ 4.] Spiry discovered the fence that Gangle and his father constructed across Spiry’s property in the summer of 1969. Rather than require him to move the fence, Spiry gave Gangle’s father verbal permission to keep the fence in place and to use his property east of the fence. At trial, Spiry testified that "[i]t saved [him from] mowing and as long as [he] still owned it and [he] could still use the property as [he] wanted to, [he] had no objection to [Gangle’s father] fencing it off into his pasture."
[¶ 5.] In August 1975, Gangle’s father passed away. Spiry, as a practicing attorney in the area, handled the probate of his estate. Gangle’s father left the land to his three children, but Gangle subsequently bought out his brother’s and sister’s interests in the property via contracts for deed, which Spiry also prepared. During his interactions with Gangle involving the probate and contracts for deed, Spiry did not discuss the fence crossing his property with Gangle. However, in August 1976, Spiry had his son and a hired man place three fence posts in the approximate location of the corner of Spiry’s property extending east of the fence. While the fence posts were actually about 30 yards into Gangle’s pasture and not on Spiry’s property, Spiry put the posts in place to indicate his ownership of the property east of the fence that Gangle occupied.
[¶ 6.] Gangle continued to graze his cattle in the same manner on the disputed property for the next 40 years with no objection from Spiry. In 1996, Gangle and Spiry met at the property to discuss a stream at the northeast corner of Lot 1 that Gangle’s cattle used for water. After the conversation, Spiry was comfortable "that [Gangle] understood that [the] fence was on [Spiry’s] property." However, Gangle disputed that a discussion about the fence took place, pointing to a letter sent by Spiry on July 29, 1996, that encompassed only an issue with the cattle watering out of the stream and an agreement with Gangle’s father regarding the same. In 2006, Gangle platted some of his property lying east of the lots in the Roy Lake Subdivision. The plat confirmed Spiry’s property line extended east of the fence Gangle constructed in Lot 1. Spiry replatted Lot 1 in 2015 into three separate lots that were classified as Lots 1A, 1B, and 1C. The fence line runs through Lot 1C with the disputed property lying east of the fence.
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[¶ 7.] On August 17, 2017, the circuit court held a bench trial regarding Gangle’s action to quiet title to the disputed property under a claim of adverse possession. Prior to the evidentiary portion of the trial, Spiry voluntarily dismissed his counterclaim seeking to quiet title under a claim of adverse possession to a 30–foot strip of land owned by Gangle that is adjacent to the dedicated road across from Lot 2A.3 Without objection from Gangle, the circuit court dismissed the counterclaim.
[¶ 8.] Spiry and his son testified at trial regarding their use of the property in Lot 1C east of the fence. Spiry’s son testified that he occasionally piled unwanted brush or tree trimmings on the property, climbing over the fence to retrieve the wood when he needed it for fires down by the lake. In response, Gangle and his wife disputed Spiry’s claim that he used the property east of the fence, testifying that they never saw such a brush pile.
[¶ 9.] In a letter decision issued on September 19, 2017, the court framed the issue between the parties as "whether [Spiry’s] permissive use to [Gangle’s father] also applied to [Gangle] as [his] successor in interest." The court held that it did not and that Gangle proved by clear and convincing evidence he had acquired the disputed property by adverse possession. Incorporating the memorandum decision, the circuit court entered findings of fact and conclusions of law on October 19, 2017. In its final judgment, the circuit court quieted title to the disputed property in Lot 1C in favor of Gangle and dismissed Spiry’s counterclaim with prejudice.
[¶ 10.] Spiry appeals, raising two issues for our review:
[¶ 11.] "Proof of the individual elements of adverse possession present questions of fact for the circuit court, while the ultimate conclusion of whether they are sufficient to constitute adverse possession is a question of law." Underhill v. Mattson , 2016 S.D. 69, ¶ 9, 886 N.W.2d 348, 352. Therefore, we review a circuit court’s factual findings for clear error and its legal conclusions de novo. Id. "Moreover, issues of statutory interpretation and application are matters of law reviewed de novo." Ashby v. Oolman , 2008 S.D. 26, ¶ 10, 748 N.W.2d 132, 135.
[¶ 12.] 1. Whether the circuit court erred in quieting title to the disputed property in Gangle’s favor on a claim of adverse possession.
[¶ 13.] Being the record owner of Lot 1C, Spiry is presumed to possess the property unless Gangle can prove he adversely possessed the property for 20 years prior to the action being commenced. SDCL 15–3–7 ; Cuka v. Jamesville Hutterian Mut. Soc’y , 294 N.W.2d 419, 421–22 (S.D. 1980). Property that has been actually and continuously occupied under a claim of title exclusive of any other right is subject to adverse possession. SDCL 15–3–12. "To establish title by adverse possession, the claimant must be in actual, open, visible, notorious, continuous and hostile occupation for the statutory period." Titus v. Chapman , 2004 S.D. 106, ¶ 27, 687 N.W.2d 918, 925 ; see also SDCL 15–3–1 (). The claimant’s occupation must be of such a nature as "to give the true owner notice of actual possession and to put him on inquiry as to the invasion of his rights." Hamad Assam Corp. v. Novotny , 2007 S.D. 84, ¶ 7, 737 N.W.2d 922, 924. The claimant has the burden of proving adverse possession by clear and convincing evidence. City of Deadwood v. Summit, Inc. , 2000 S.D. 29, ¶ 15, 607 N.W.2d 22, 26.
[¶ 14.] In this case, it is undisputed that Gangle was in actual, open, visible, notorious, and continuous occupation of Spiry’s property east of the constructed fence in Lot 1C for the statutory period of 20 years. However, Spiry argues that Gangle’s claim of adverse possession must fail because his use of the disputed property was not hostile. "[P]ossession which is not hostile cannot be adverse." Broadhurst v. Am. Colloid Co. , 85 S.D. 65, 75, 177 N.W.2d 261, 266 (1970). Also, we have stated that "[c]ontinued use which is permissive is insufficient to fulfill the requirement of ... hostile use." Travis v. Madden , 493 N.W.2d 717, 720 (S.D. 1992) ; see also 3 Am. Jur. 2d Adverse Possession § 44, Westlaw (database updated May 2018).
[¶ 15.] Spiry asserts that the permission given to Gangle’s father to use the property east of the fence should apply to Gangle as his successor in interest and that the circuit court erred in ruling otherwise. The question whether a permissive use can ripen into one of hostility by merely transferring property is one of first impression for ...
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