Picardi v. Zimmiond

• Decision Date: 23 November 2004
• Docket Number: No. 23173, No. 23147
• Citation: 2004 SD 125,689 NW 2d 886
• Parties: EDWARD J.S. PICARDI and SANDRA J. PICARDI, Plaintiffs and Appellees, v. RICHARD ZIMMIOND AND LORI ZIMMIOND, Defendants and Appellants, and CHRIS A. SOPPE and CINDY SOPPE, Defendants.
• Court: South Dakota Supreme Court

2004 SD 125

689 NW 2d 886

EDWARD J.S. PICARDI and SANDRA J. PICARDI, Plaintiffs and Appellees, v. RICHARD ZIMMIOND AND LORI ZIMMIOND, Defendants and Appellants, and CHRIS A. SOPPE and CINDY SOPPE, Defendants.

Nos. 23147, 23173

Supreme Court of South Dakota.

Considered On Briefs October 4, 2004.

Opinion Filed November 23, 2004.

JOHN K. NOONEY of Thomas Nooney Braun Solay & Bernard, LLP, Rapid City, South Dakota, Attorney for plaintiffs and appellees.

ROBERT A. HAIVALA Sturgis, South Dakota, Attorneys for defendants and appellants.

GILBERTSON, Chief Justice.

[¶ 1.] Edward J.S., M.D., and Sandra J. Picardi filed declaratory action to determine the extent of an express perpetual road easement across properties owned by Richard and Lori Zimmiond, and Chris A. and Cindy Soppe in Meade County, South Dakota. The Fourth Circuit Court, Judge Jerome A. Eckrich, III presiding, found the Picardi easement to be a private perpetual road easement of forty-four feet in width, which did not preclude Zimmionds and Soppes from general use of the easement as long as that use did not interfere with the use or enjoyment of the easement by Picardis. Zimmionds appealed the decision as to the width of the easement, and Picardis filed notice of review that the easement was granted for the Picardis' exclusive use.

Affirmed.

FACTS AND PROCEDURE

[¶ 2.] In July 1998, Dr. Edward Picardi and Sandra Picardi purchased 320 acres of land in Meade County, South Dakota. Because the property was landlocked, access from Picardis' property to a community road and 132nd Avenue required traversing an unplatted piece of property owned by Thomas D. Hildebrand and Glenda D. Hildebrand. The Picardis and the Hildebrands reached an agreement for an easement across the Hildebrands' land, which was executed on December 4, 1998.

[¶ 3.] The executed and recorded agreement provided for a perpetual road easement for ingress and egress across the Hildebrands' property to the Picardis' property. However, the writing did not explicitly state the physical dimensions or location of the Picardi easement. At the time of negotiations, Picardis made clear their need to maneuver a double-wide modular home along the easement, as well as accommodate construction machinery and semi-trailers when construction on their permanent residence began. The writing described the nature of the use and the scope of the enjoyment of the easement in general terms. Oral agreements between Dr. Picardi and Thomas Hildebrand set the physical dimensions of the easement at forty-four feet in width to accommodate a planned roadway of twenty-eight feet plus an eight foot setoff for drainage and ditches on each side.

[¶ 4.] Sometime during the second half of 1998, the Picardis hired Wayne Sundstrom to build the twenty-eight foot wide road and two eight foot ditches. Picardis planned on moving onto their property before winter 1998, by locating a double-wide modular home on the property and eventually building a permanent structure. Picardis and Sundstrom decided time constraints would not allow both the construction of the twenty-eight foot wide road and the Picardis' move prior to the onset of winter weather. Therefore, it was agreed that a roadway of sufficient size to accommodate the modular home would be constructed before winter, and in the spring the twenty-eight foot road and eight foot ditches would be constructed as originally planned.

[¶ 5.] Sundstrom completed a sixteen to eighteen foot wide road and buried an "extra-wide" culvert beneath the road to accommodate the spring construction. Sundstrom cut down large pine or spruce trees and other vegetation on both sides of the sixteen to eighteen foot road. Both the extra-wide culvert and the clear cut swath were obvious and visible adjuncts to the new road, and depicted the intended forty-four foot wide easement. Sundstrom died during the winter, and the road surface was never expanded to the twenty-eight feet as originally planned.

[¶ 6.] In December 2000, Hildebrands subdivided their adjacent property and recorded the subdivision plat in the Meade County Register of Deeds office on January 4, 2001. Lots D and E were created at that time. The plat located the Picardi easement over and along Lots D and E but did not describe the width of the easement, nor was it drawn to scale as required by Meade County Ordinance 20. If the plat had been intended to be drawn to scale, the easement as depicted would have indicated a roadway of approximately thirty feet in width.

[¶ 7.] Soppes purchased Lot E from Hildebrands in late July or early August of 2001. Soppes were told by Hildebrand prior to the closing that the Picardi easement was a "private road" for the Picardis and that the Soppes had no right of access over and across the easement as located on Soppes' Lot E. Soppes did not take issue with the terms or dispute the width of the easement.

[¶ 8.] Prior to closing with Hildebrands on Lot D, Zimmionds were given information as to the width of the Picardi easement. Zimmionds physically inspected the lot several times between May and October 2001 and were told by Hildebrand more than once prior to closing that the easement was forty-four feet in width. Hildebrand showed Zimmionds the plat depicting the Picardi easement. Zimmionds conceded at the time of their inspections that the physical manifestations of the easement were obvious and appeared wider than the sixteen foot road itself. Mrs. Zimmiond herself testified the swath cut through the trees appeared to be around forty feet in width. The purchase agreement noted the sale was "subject to easements, covenants, and reservations of record." The title policy identified "an easement in favor of Picardi."

[¶ 9.] After closing on the sale, Zimmionds began construction of their home, garage and driveway. The site selected virtually abutted the sixteen foot roadway, and created a bottleneck when cars were parked along the roadway in front of the Zimmiond's residence garage. At times passage for even one vehicle was impossible due to cars parked at the Zimmiond residence.

[¶ 10.] After communications broke down between the parties and attempts to remedy the situation failed, Picardis filed a petition for declaratory judgment seeking to establish the width and the exclusive use of the easement. After trial, judgment and an order were entered on December 23, 2003. The court order set the location of the Picardi easement and its width at forty-four feet, and ordered that the Soppes and Zimmionds as owners of the servient tenements could use the easement.¹ The Soppes and Zimmionds use was limited only to the extent such use was not inconsistent with the express use and purpose of the Picardi easement, and did not impede, hinder, limit, or restrict the use and enjoyment of the Picardi easement by the dominant tenement.

[¶ 11.] Zimmionds appealed and Picardis filed notice of review. There are two issues for our review:

1. Whether the trial court erred when it found the Picardi easement was forty-four feet in width.

2. Whether the Picardi easement was granted solely for Picardis' exclusive use.

STANDARD OF REVIEW

[¶ 12.] The trial court's findings of fact are reviewed by this Court under the clearly erroneous standard. Block v. Drake, 2004 SD 72, ¶8, 681 NW2d 460, 463 (citation omitted). "Clear error is shown only when, after a review of all the evidence, `we are left with a definite and firm conviction that a mistake has been made.'" New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶7, 603 NW2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶4, 597 NW2d 424, 425 (quoting Cleveland v. Tinaglia, 1998 SD 91, ¶16, 582 NW2d 720, 724.)). We review conclusions of law under the de novo standard, giving no deference to the trial court's decision. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶9, 607 NW2d 22, 25 (citations omitted).

ANALYSIS AND DECISION

[¶ 13.] 1. Whether the trial court erred when it found the Picardi easement was forty-four feet in width.

[¶ 14.] The parties agree Picardis have an easement over the Soppes and Zimmionds servient tenements. Soppes do not dispute the width of forty-four feet. Zimmionds contend the trial court erred in setting the width of the Picardi easement at forty-four feet rather than at the sixteen to eighteen feet in width as originally constructed in 1998.

[¶ 15.] Zimmionds argued the original grant did not detail the scope of the easement, other than to label it a "roadway." Zimmionds advanced the argument that because Picardi constructed the roadway at sixteen to eighteen feet in width, the easement is adequate to serve the purpose for which it was intended and Picardis have acquiesced to the smaller width. Zimmionds further argue that to allow Picardis to expand the width of the roadway and add on the width of two eight foot ditches, an addition of twenty-six to twenty-eight feet in width, is an impermissible enlargement of an easement, as the language of the original grant does not provide for ditches.

[¶ 16.] An easement is a property interest in land owned by or in the possession of another, which entitles the easement owner "to a limited use or enjoyment of the land in which the interest exists." Knight v. Madison, 2001 SD 120, ¶4, 634 NW2d 540, 542 (quoting Gilbert v. KTI, Inc., 765 SW2d 289, 293 (MoApp1988)). An easement may be created by a written grant, by plat or by a force of law. Kokesh v. Running, 2002 SD 126, ¶12, 652 NW2d 790, 793 (citing Knight, 2001 SD 120, ¶6, 634 NW2d at 542). An easement by grant does not require a definite statement as to width, dimensions, or exact location. Northwest Realty Co. v. Jacobs, 273 NW2d 141, 145 (SD 1978) (citations omitted). The extent of an easement by grant can be ascertained either by the "words clearly expressed, or by just and sound construction" of the easement document. Cleveland, 1998 SD 91, ¶18, 582 NW2d at 724 (quoting Salmon v. Bradshaw, 84 SD 500, 505-06, 173 NW2d 281, 284 (19...