Lien v. Beard, No. 17468

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER
• Citation: 478 N.W.2d 578
• Parties: Judith J. LIEN, Plaintiff and Appellee, v. Wendy J. BEARD, Defendant and Appellant. . Considered on Briefs
• Decision Date: 24 October 1991
• Docket Number: No. 17468

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478 N.W.2d 578 Judith J. LIEN, Plaintiff and Appellee,
v.
Wendy J. BEARD, Defendant and Appellant. No. 17468. Supreme Court of South Dakota. Considered on Briefs Oct. 24, 1991.
Decided Dec. 24, 1991.

Jerome A. Eckrich of Schmidt & Eckrich, Spearfish, for plaintiff and appellee.

Leroy Hill of Leroy Hill Law Offices, Belle Fourche, for defendant and appellant.

MILLER, Chief Justice.

Wendy Beard (Beard) appeals trial court's judgment in favor of Judith Lien (Lien), which permanently enjoined Beard from entering, pasturing, or interfering with Lien's possession of certain property and denied Beard's counterclaim grounded upon adverse possession. We affirm.

FACTS

Lien and Beard are adjoining landowners of property located in the Black Hills of South Dakota. Beard purchased her land

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in 1980, and Lien purchased hers in 1985. A wire fence, which has been in place for more than forty years, partially ¹ divides the properties. Apparently, this fence deviates to the east from the legal boundary due to the presence of rimrock, which makes it impossible to maintain a fence on the precise boundary. Moreover, the fence was in a dilapidated condition and was down in some areas. The area is rough, rocky, steep, and heavily timbered, and neither party could observe the disputed area from her home.

In the spring of 1988, Lien had her property surveyed and staked, at which time it became apparent that the fence was not on the legal boundary line. In 1989, Beard began to make actual use of an irregular shaped piece of land (approximately 3 acres in size) of which Lien was the record owner. Lien and her husband observed Beard repairing and rebuilding portions of the fence in order to enclose this strip of land to create a donkey pen. Because Beard was on what Liens believed was their property, they informed the sheriff that Beard was trespassing. The sheriff informed them that this was a civil matter, hence Lien retained counsel.

On April 27, 1989, Lien, through her attorney, sent Beard a demand letter advising her to cease and desist her work on the fence and to abandon her efforts to claim the strip of land. This letter was ignored. Lien then initiated this action seeking a permanent injunction. Beard counterclaimed, claiming title to the disputed strip of land by adverse possession. After a trial on the merits, the court concluded that Beard failed to establish her claim of adverse possession and thus granted a permanent injunction to Lien.

On appeal, Beard contends that the trial court erred in concluding that Beard failed to meet her burden of proof; that the trial court improperly applied the doctrine of boundary by acquiescence; and, that the trial court abused its discretion in granting Lien's motion for a continuance. We affirm.

DECISION

WHETHER THE TRIAL COURT ERRED WHEN IT DETERMINED THAT THERE WAS INSUFFICIENT EVIDENCE TO ESTABLISH TITLE BY ADVERSE POSSESSION.

Lien was the record owner of the property; therefore, Beard had the burden of proving title by adverse possession. SDCL 15-3-7; ² Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419 (S.D.1980). "[T]o establish by adverse possession ownership and title which is inconsistent with the record title, the proof must be by clear and convincing evidence." Id. at 422 (emphasis added); Taylor v. Tripp, 330 N.W.2d 542 (S.D.1983); Bartels v. Anaconda Co., 304 N.W.2d 108 (S.D.1981).

Beard does not claim title based on a writing; therefore, her adverse possession claim is governed by SDCL 15-3-12. Under this statute, the trial court must determine whether the land was occupied for twenty years, since "only that portion of land which has been actually and continuously occupied may be claimed when there is no written instrument forming the basis of the claim." (Emphasis added.) It is generally accepted that to establish adverse possession it must be shown that the occupancy was actual, open, visible, notorious, continuous, and hostile. Forest Home Cemetery v. Dardanella Fin. Corp., 329 N.W.2d 885 (S.D.1983).

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The trial court made the following findings: the fence bordering the...