Jensen Ranch, Inc. v. Marsden

• Decision Date: 11 January 1989
• Docket Number: 16254,Nos. 16244,s. 16244
• Citation: 440 N.W.2d 762
• Parties: The JENSEN RANCH, INCORPORATED, a South Dakota Corporation, and Paul Jensen, Plaintiffs and Appellees, v. Robert D. MARSDEN and Herma R. Marsden, husband and wife, and K.C. Marsden, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 762

440 N.W.2d 762

The JENSEN RANCH, INCORPORATED, a South Dakota Corporation, and Paul Jensen, Plaintiffs and Appellees, v. Robert D. MARSDEN and Herma R. Marsden, husband and wife, and K.C. Marsden, Defendants and Appellants.

Nos. 16244, 16254.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1989.

Decided May 10, 1989.

Scott D. McGregor of Finch, Viken, Viken & Pechota, Rapid City, for plaintiffs and appellees.

Larry M. Von Wald and Craig A. Pfeifle of Lynn, Jackson, Schultz & Lebrun, Rapid City, for defendants and appellants.

MILLER, Justice.

In this appeal, concerning a boundary fence dispute, we hold that (1) the trial court erred in converting one party's motion to dismiss into a summary judgment for the other party; (2) the trial court did not err in refusing to dismiss the action based upon a claim of service of notice upon the wrong parties; (3) the trial court did not err in denying punitive damages, and (4) the trial court erred in determining that prejudgment interest was not allowable.

Thus, we affirm in part, reverse in part, and remand.

FACTS

This action involves an unfortunate fence line dispute between ranch families who have been neighbors for many years. Appellants Robert D. Marsden, Herma R. Marsden, and K.C. Marsden (Marsdens) appeal from an order of the trial court granting summary judgment in favor of the Jensen Ranch and Paul Jensen (Jensens). Marsdens claim that the trial court erred in granting summary judgment in favor of Jensens when Jensens did not make a motion therefor and that the trial court erred in refusing to dismiss the action. By notice of review, Jensens appeal the trial court's denial of punitive damages and prejudgment interest.

A fence had been erected several years earlier between the adjoining properties of the parties. However, due to the terrain, it had not been erected on the true boundary. As an accommodation for the placement of the fence, Jensens were allowed to drive over Marsden lands and Marsdens were allowed to graze parts of the Jensen property.

During deer hunting season in November 1983, a dispute developed between the parties over their respective use of the land. Eventually Jensens decided it was necessary to erect a legal fence between the two properties. In June 1984, Paul Jensen sent two letters to Robert Marsden requesting that Marsden erect one-half of the legal fence. ¹ Marsden's response to the first letter was that any work on the fence would be "according to law and without the services of your [Jensens'] crews." Jensen's second letter repeated his request that Marsden erect one-half of the fence, but erroneously described the portion of the property where the legal fence was to be erected. However, it appears that both parties understood where Jensens wanted the legal fence built. Marsdens did not reply to Jensen's second letter. Thereafter, Jensens had their land surveyed and constructed a legal fence between the two properties. After the fence was constructed, Jensens again asked Marsdens to pay for one-half of its cost. Marsdens refused. (There never was a claim that the fence was anything other than a properly located legal fence.) Following another fruitless request for payment, Jensens brought suit against Marsdens seeking payment for one-half of the cost of erecting the fence.

Following the initiation of Jensens' suit, Marsdens filed a motion to dismiss Jensens' complaint and a motion to strike Jensens' claim for punitive damages and attorney fees. Marsdens' motion to dismiss was premised upon the fact that Robert and Herma Marsden were no longer the legal owners of the Marsden property. The motion further alleged that K.C. Marsden had not received proper notice of the demand for the erection of the fence. (Prior to these motions, Marsdens had never advised Jensens of any change in ownership of the property, even though there had been correspondence and conversations regarding the fence line dispute.) Jensens did not file any substantive motions.

At the hearing on Marsdens' motion to dismiss, the evidence adduced related principally to the issues of ownership and notice raised by Marsdens. Following the hearing, the trial court determined that summary judgment in favor of Jensens was appropriate.

DECISION

I

WHETHER THE TRIAL COURT ERRED IN ENTERING SUMMARY JUDGMENT

IN FAVOR OF JENSENS.

Marsdens first complain that the trial court erred when it granted summary judgment in favor of Jensens when Jensens had not made a motion therefor. Summary judgment was entered for Jensens based upon Marsdens' motion to dismiss Jensens' cause of action for failure to state a claim.

Questions concerning the propriety of a summary judgment are governed according to SDCL 15-6-56. However, the court may treat a motion to dismiss for failure to state a claim under SDCL 15-6-12(b) as a motion for summary judgment. ²

Summary judgment was inappropriate in this case under our holdings in Norwest Bank Black Hills, N.A. v. Rapid City Teachers Federal Credit Union, 433 N.W.2d 560 (S.D.1988) and Olson v. Molko, 86 S.D. 365, 195 N.W.2d 812 (1972). We stated in Norwest Bank that a court which treats a motion to dismiss as one for summary judgment must advise the parties of its intent and give all parties an opportunity to present matters pertinent to such a motion by SDCL 15-6-56. Here, the court did not provide the parties with a reasonable opportunity to present any pertinent material, as provided by SDCL 15-6-12(b)(5). The parties thus were not afforded an occasion to file affidavits or other evidence which may have controverted the court's conclusion that no genuine issue of material fact existed. Such is reversible error under Norwest Bank and Olson. See also Schuldt v. State Farm Mut. Auto. Ins. Co., 272 N.W.2d 94 (S.D.1978) (summary judgment authorized only where there has been a motion therefor or an equivalent motion); and 5 C. Wright and A. Miller, Federal Practice & Procedure Sec. 1366 (1969) (footnotes omitted).

II

WHETHER THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE ACTION.

Marsdens next claim that the trial court erred in failing to dismiss Robert and Herma Marsden from the action. Marsdens claim that Robert and Herma were not "owners" of the property under SDCL ch. 43-23 ³ due to their conveyance of the property to their children in December 1983, approximately one month after the dispute with Jensens arose. The record indicates that after Robert and Herma had conveyed the property, they continued to hold it under an oral lease from their children, who own the land as M & K Partnership. The record also evidences that Robert and Herma, after conveying the land to the children, executed as lessors a farm and ranch lease-purchase agreement respecting part of the subject property. ⁴

This court has previously held that the term "owner" may include one not holding the legal title to property. See Lien v. Rowe, 77 S.D. 422, 92 N.W.2d 922 (1958); see also Lord v. Black Hills Mining Corp., 68 S.D. 79, 298 N.W. 677 (1941). Other jurisdictions have held that the term is applicable to one who holds less than a full fee title in the subject property. See, e.g., Shell Oil Co. v. City and County of San Francisco, 189 Cal.Rptr. 276, 139 Cal.App.3d 917 (1983); Mason v. Rosewell, 107 Ill.App.3d 943, 63 Ill.Dec. 722, 438 N.E.2d 653 (1982); Siemer v. Schuermann Bldg. & Realty Co., 381 S.W.2d 821 (Mo.1964). Under our statutory scheme, the purpose of a statute is to be gathered from the whole act, and in determining the purpose one may resort to not only the statute itself, but also to the structure and scheme of the statute and to its historical background and legislative history. See State v. Douglas, 70 S.D. 203, 16 N.W.2d 489 (1944).

Given the import and purposes of SDCL ch. 43-23, we will not accept a narrow, technical definition of the word "owner" in this case because Robert and Herma Marsden, although they claim to be former owners, still exercise some degree of dominion and control over the property. Their control is evidenced, among other things, by their execution of the lease-purchase agreement. In reality, they are the "actual owners" or beneficial or equitable owners. Bowers v. Viereck, 117 N.E.2d 717, 720 (Ohio Com.Pl.1953). They certainly are not mere lessees. Thus, the trial court did not err in refusing to dismiss Robert and Herma Marsden from the action.

Marsdens further claim that the trial court erred in refusing to grant their motion to dismiss because Jensens failed to give notice of their intent to erect a legal fence to the title owners of the property, M & K Partnership. This issue has been rendered moot by our holding earlier herein.

It has been asserted that to "serve ... such delinquent owner a notice in writing," as is required in SDCL 43-23-5, ⁵ requires something more than mailing a letter. Clearly, the statutory scheme provided by SDCL ch. 43-23 is designed to provide an uncomplicated procedure so that a landowner may give his neighbor a meaningful opportunity to assist with the construction or repair of a boundary fence. Additionally the statutes give the adjoining landowner a specific time within which to either erect or repair his share of the fence or to contribute to his neighbor who undertakes the work after appropriate notice. From reading the statutes as a whole, we do not believe that the legislature contemplated that a dissatisfied land owner must seek out a lawyer to commence some type of legal remedy initiated by a sheriff's service, rather than writing an appropriate letter himself. We might observe that in many, if not most cases, such a requirement would be counter-productive to amicable and neighborly relations.

We believe that the notice provided here is sufficient and that it adequately fulfills the purpose of the statute. Mosher v. Schumm, 114 Colo. 441, 166 P.2d 559 (1946); Kruse v. Vail, 238 Iowa 1277, 30 N.W.2d 159 (1947); Hughes v. Brignac, 72 So.2d 22 (La.App.1954)....