Lien v. Beard
| Decision Date | 24 October 1991 |
| Docket Number | No. 17468,17468 |
| Citation | 478 N.W.2d 578 |
| Parties | Judith J. LIEN, Plaintiff and Appellee, v. Wendy J. BEARD, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Jerome A. Eckrich of Schmidt & Eckrich, Spearfish, for plaintiff and appellee.
Leroy Hill of Leroy Hill Law Offices, Belle Fourche, for defendant and appellant.
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.
Lien and Beard are adjoining landowners of property located in the Black Hills of South Dakota. Beard purchased her land 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.
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).
The trial court made the following findings: the fence bordering the disputed property deviated from the recorded legal boundary because of the presence of rimrock, which made it impossible to build or maintain a fence thereon; Beard used the disputed land for the first time in 1989 when she began construction of a donkey pen which involved building a new fence and rebuilding pieces of downed fence; over the years, the disputed area was seldom used; the last alleged use of this land by Beard's predecessors in interest 3 occurred thirty-three years before; the evidence established that the parties and their predecessors in interest treated the fence as the boundary line for more than twenty years; however, it did not establish that Beard's occupancy, or that of her predecessors in interest, was actual, open, visible, and continuous for more than twenty years. 4
Accordingly, the trial court concluded that Beard failed to establish by clear and convincing evidence that there was an actual and continuous occupancy of the disputed area for more than twenty years. SDCL 15-3-12. Clear and convincing evidence is " 'somewhere between the rule in ordinary civil cases and the requirement of our criminal procedure, that is, it must be more than a mere preponderance but not beyond a reasonable doubt.' " Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 781 (1965) (quoting Brown v. Warner, 78 S.D. 647, 653, 107 N.W.2d 1, 4 (1961)).
Beard also claims the trial court improperly applied the "doctrine of boundary by acquiescence." 5 That doctrine, while similar to adverse possession is, in effect, an evidentiary presumption as to the element of hostility and it applies even though the occupancy occurred due to ignorance, inadvertence, or mistake, and without an intention to claim the lands of another. However, the trial court concluded that the evidentiary presumption of hostility under the "doctrine of boundary by acquiescence" was inapplicable because there was no actual or continuous occupancy of the area in dispute for more than twenty years. We agree. "[O]ccupancy to a visible and ascertainable boundary for the statutory period is the controlling feature in...
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