Nelson v. Gregory County

• Decision Date: 22 March 1982
• Docket Number: No. 13441,13441
• Citation: 323 N.W.2d 139
• Parties: Richard NELSON, Plaintiff and Appellee, v. GREGORY COUNTY, South Dakota; The State of South Dakota; Herbert Buryanek; Mrs. Herbert Buryanek, or if any of them be Deceased, their Heirs, Devisees, Legatees, Executors, Administrators or Creditors, Known or Unknown or any or Either of them and all Persons Unknown who may have or Claim to have any Estate or Interest in or Lien or Encumbrances upon such Real Property or any part Thereof, Defendants, and James Buryanek, Jr., and Dianne Kay Buryanek, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 139

323 N.W.2d 139

Richard NELSON, Plaintiff and Appellee, v. GREGORY COUNTY, South Dakota; The State of South Dakota Herbert Buryanek; Mrs. Herbert Buryanek, or if any of them be Deceased, their Heirs, Devisees, Legatees, Executors Administrators or Creditors, Known or Unknown or any or Either of them and all Persons Unknown who may have or Claim to have any Estate or Interest in or Lien or Encumbrances upon such Real Property or any part Thereof, Defendants and James Buryanek, Jr., and Dianne Kay Buryanek, Defendants and Appellants.

No. 13441.

Supreme Court of South Dakota.

Considered on Briefs March 22, 1982.

Decided Aug. 18, 1982.

John J. Simpson, Winner, for plaintiff and appellee.

Dale F. Benson of Willoughby & Benson, Burke, for defendants and appellants.

WOLLMAN, Chief Justice.

This is an appeal from a judgment quieting title to land in appellee. We affirm.

In 1951 Wesley Smerling purchased forty acres of real estate from Gregory County. Sometime later, but before May 6, 1957, the United States Government acquired ten acres from Smerling's forty-acre tract.

On May 6, 1957, Smerling entered into an agreement, denominated an easement, with Mr. and Mrs. Herbert Buryanek and their son, James Buryanek, Jr. Under this instrument Smerling granted an easement to the Buryaneks over a portion of his remaining thirty acres, giving the Buryaneks the right to "construct, erect, operate and maintain thereon a residence property and hunting camp with accessory improvements incident thereto" and a right-of-way easement across the tract.

In addition, this instrument granted the Buryaneks an option to buy

"... the south thirty (30) acres ..., said option to be exercised only and after the termination of the rights of George Gordon in and to said lands as above described and his right to occupy the same until his death, but must be exercised within two years after such termination of the rights of said George Gordon. Except that the party of the first part (Smerling) reserves a square one acre tract on any portion of said thirty acres that he may hereafter select for the purpose of a cabin site, except that portion hereinbefore described, upon which the parties of the second part are granted an easement. Such site shall be designated and selected by the party of the first part on or before the parties of the second part exercise their option as hereinbefore provided" (emphasis added).

"That in the event the said first party (Smerling) selects a site as above reserved, he shall also have a right-of-way easement over and across the property 25 feet wide, necessary and sufficient to permit first party ingress and egress to and from said tract and to erect and maintain wires and fixtures to serve said property with electricity and with the privilege of removing, at any time, all improvements upon, over, or on said land."

This option could not be exercised before the death of George Gordon, who lived in a cave on the property. On November 2, 1971, Smerling, in the exercise of the right he had reserved in the 1957 instrument, platted a tract of land lying within the thirty acres. This tract was surveyed and divided into eight outlots, "A" through "H." This tract was not a "square acre tract," but was a parallelogram that measured approximately 11,827 square feet less than a full acre. That same day Smerling sold and conveyed the eight outlots by warranty deed to Richard Nelson (appellee).

Herbert Buryanek died in 1971, vesting his joint tenancy interest in his wife and son. George Gordon died on May 26, 1976. On August 30, 1976, Mrs. Herbert Buryanek conveyed her interest in the tract to James Buryanek, Jr., and his wife (appellants). On July 29, 1976, appellants exercised their option rights under the 1957 instrument and received from Smerling a warranty deed conveying to them:

The Southwest Quarter of the Southeast Quarter (SW 1/4 SE 1/4) of Section One (1), Township Ninety-Nine (99) North, Range Seventy-One (71), West of the 5th P.M., in Gregory County, South Dakota, except Outlots A, B, C, D, E, F, G, H, and a certain parcel of land described as that part of the North Half of the Southwest Quarter of the Southeast Quarter (N 1/2 SW 1/4 SE 1/4) ... (emphasis added).

On April 17, 1978, appellants served written notice of their intent to exercise the option contained in the 1957 instrument on the eight outlots then owned by appellee. Appellee then commenced an action seeking to quiet title in himself in the platted tract. Appellants filed and served an answer and counterclaim, to which appellee served no reply. James Buryanek, Jr., admitted at trial that Smerling had informed him and his mother of the sale of an acre tract to appellee. Buryanek also admitted that he had seen the plat made by Smerling not long after Smerling had sold the acre to appellee. Moreover, appellants knew that the plat was in existence inasmuch as the outlots were specifically excepted from the deed of conveyance given by Smerling to them in 1976. There is no evidence that appellants objected at any time to this exception in the deed.

The trial court concluded that the delivery and acceptance by appellants of the deed from Smerling merged in the deed the provisions of the antecedent option agreement imposing obligations upon Smerling. We agree.

The doctrine of merger provides that upon delivery and acceptance of an unambiguous deed, all prior negotiations and agreements are deemed merged therein. Van Ness et ux. v. The Mayor, &...