Salmon v. Bradshaw

• Decision Date: 23 December 1969
• Docket Number: Nos. 10550,10560,s. 10550
• Citation: 84 S.D. 500,173 N.W.2d 281
• Parties: Wayne E. SALMON and Charlotte Salmon, Plaintiffs, Respondents and Cross-Appellants, v. William Brandt BRADSHAW and Betty Green Bradshaw, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 281

173 N.W.2d 281

84 S.D. 500

Wayne E. SALMON and Charlotte Salmon, Plaintiffs Respondents and Cross-Appellants, v. William Brandt BRADSHAW and Betty Green Bradshaw, Defendants and Appellants.

Nos. 10550, 10560.

Supreme Court of South Dakota.

Dec. 23, 1969.

Davenport, Evans, Hurwitz & Smith, Robert C. Heege, Sioux Falls, for defendants and appellants, Neale, Newman, Bradshaw & Freeman, Springfield, Mo., of counsel.

Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for plaintiffs, respondents, and cross-appellants.

HANSON, Judge (On reassignment).

This action involves the respective rights of adjoining residential lot owners to a right-of-way in the City of Sioux Falls. Plaintiffs commenced the action for a declaratory judgment and for injunctive relief. Defendants counterclaimed with an action to quiet title and for damages. Both parties moved for summary judgment. The trial court entered judgment for plaintiffs granting them an easement over a portion of the easement area and enjoined defendants from interfering with plaintiffs' use of the right-of-way as established by the court. Both parties have appealed. In open court during oral argument on appeal defendants dismissed and abandoned their alleged claim for damages.

It appears that Reverend Casper M. Austin and his wife originally owned all of the property involved located in the County Club Heights Subdivision of Minnehaha County. The Austin home was located on Lot 10 of Block 3. Lot 10 is a large irregular shaped lot situated approximately in the middle of the Block. It is surrounded on three sides by other irregular shaped smaller lots and is bounded on the west by Austin Drive. A narrow appendage extending off the southeast corner of Lot 10 runs eastward to Kiwanis Avenue.

On March 12, 1956 Reverend Austin and his wife sold and conveyed to plaintiffs, Wayne E. Salmon and Charlotte Salmon by warranty deed, Lot 2 in Block 3 of the Country Club Heights Subdivision. Lot 2 is an irregular shaped lot abutting Lot 1 eastward, Lot 10 westward, and the appendage of Lot 10 on the south. At the time of the conveyance Lot 2 was landlocked having no access to either a private or public way. There existed, however, a driveway extending from Kiwanis Avenue west across the appendage part of Lot 10 and continuing on westerly across Reverend Austin's Lot 10 to Austin Drive.

On April 2, 1956 Reverend Austin and his wife granted plaintiff, Wayne E. Salmon, the following written easement:

'EASEMENT

BOOK 55 Mis Page 208

'CASPER M. AUSTIN and EDA MABEL AUSTIN, husband and wife, the owners of Lot 10 in Block 3, Country Club Heights, an Addition to the City of Sioux Falls, Minnehaha County, South Dakota in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledge, from Wayne E. Salmon, do hereby give, grant and convey to Wayne E. Salmon, his heirs, successors and assigns, an easement as hereinafter described, in favor of and for the perpetual benefit of the certain real property described as Lot 2 in Block 3, Country Club Heights, an addition to the City of Sioux Falls, Minnehaha County, South Dakota, which property is presently owned by Wayne E. Salmon, for driveway and street purposes and for full purposes of ingress and egress to and from said Lot 2 in Block 3, Country Club Heights Addition.

'The easement for driveway and street purposes herein granted is over, upon and across that certain portion of Lot 10 in Block 3, Country Club Heights Addition lying between Lots 1, 2 and 18 in Block 3, Country Club Heights Addition to Sioux Falls, the purpose of the within grant being to grant access to Kiwanis Avenue from said Lot 2, Block 3, Country Club Heights, an Addition to the City of Sioux Falls.

'Dated at Sioux Falls, South Dakota this 2nd day of April, 1956.

Casper M. Austin

Eda Mabel Austin'

The words in the easement 'that certain portion of Lot 10 in Block 3, Country Club Heights Addition lying between Lots 1, 2 and 18 in Block 3,' is a description of the narrow appendage extending off the southeast corner of Lot 10 running eastward to Kiwanis Avenue.

Plaintiffs constructed their home on Lot 2 and have continuously resided there ever since. During the summer of 1956 plaintiffs also constructed a 16-foot wide concrete driveway extending from their garage southeasterly across a portion of the easement area of Lot 10 to Kiwanis Avenue.

Some time later plaintiff Salmon at his own expense hard surfaced with asphalt the driveway on the easement area of Lot 10 west of his concrete drive. This was done, as plaintiff testified, because he used the driveway and because it was dusty. Later on, Reverend Austin hired plaintiff to blacktop the rest of the driveway extending west to Austin Drive.

On January 12, 1965 defendants, Reverend William B. Bradshaw and his wife, purchased Lot 10 of Block 3, Country Club Heights from the Estate of Casper M. Austin, deceased. When defendants purchased the Austin property the abstract of title was examined for them by an attorney in Sioux Falls who pointed out in his opinion that 'entry #75 of said abstract mentions an easement that is over, upon and across a certain portion of the above described property. This driveway grants access to Kiwanis Avenue.'

In the spring of 1965 Reverend Bradshaw erected posts and a chain at the Kiwanis end of the driveway. The chain was secured to the posts by a lock. A sign reading 'Private Drive' was hung on the chain. This action followed after Reverend Bradshaw refused to remove the lock from the chain thereby denying plaintiffs any access to the easement area on Lot 10 except their 16-foot garage driveway.

The making of cross motions for summary judgment does not remove from consideration the primary question of whether there are any genuine issues of material facts. Each of the moving parties merely 'concludes and affirms that there is no issue of fact only for purposes of his own motion'. Vol. 3 Barron and Holtzoff, Federal Practice and Procedure, Section 1239. In such case, a court is not warranted in granting summary judgment unless one of the moving parties is entitled to judgment as a matter of law in the absence of a genuine issue as to any material fact. American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, 2 Cir., 388 F.2d 272.

The trial court concluded the easement of April 12, 1956 granted plaintiffs a 'floating easement' at an unspecified and uncertain point across Lot 10. The court fixed and granted plaintiffs an easement 'where their present concrete drive is now emplaced, together with the North 16 feet of that portion of Lot 10 extending from the Southwest corner of said Lot 2 eastward to Kiwanis Avenue.' Neither party is satisfied with the judgment rendered. However, both parties agree the easement granted to plaintiffs is clear, definite and unambiguous in its terms and provisions and it is unnecessary to resort to extrinsic facts or circumstances to determine its meaning.

Plaintiffs contend that in accordance with the clear, definite, and unambiguous provisions of the easement they are entitled to the full use and enjoyment of the easement area. By limiting their right-of-way to the concrete drive and the north 16 feet of the easement area the trial court erroneously reduced their easement rights.

Defendants, on the other hand, contend that when a right-of-way is granted in general terms, without defined limits, the subsequent use and location of the way by the grantees operates to fix and determine its location and extent. Consequently, the trial court should have limited plaintiffs' right-of-way to the 16-foot driveway.

We agree with both parties the easement of April 12, 1956 is clear, definite and unambiguous in all its terms and provisions, making it unnecessary to resort to extrinsic facts or circumstances to determine its meaning or extent. In construing a grant, conveyance, or other instrument creating an easement 'the document itself, and that only, can, in the first instance, be looked at to discover the extent and nature of the agreement and the terms of the grant. If on the face of the document no doubt arises that the words are used in their primary sense, and if, read in that sense, they are plain and unambiguous, the matter is concluded'. Gale on Easements, p. 80. Where the intention of the parties can be ascertained, nothing remains but to effectuate that intention. 2 Devlin on Real Estate, 835. The terms of the grant, as they can be learned either by words clearly expressed, or by just and sound construction, will regulate and measure the rights of the grantee.' Witman v. Stichter, 299 Pa. 484, 149 A. 725. This universal rule is stated in 25 Am.Jur.2d, Easements and Licenses, § 73, as follows: 'Where an easement is claimed under a grant or reservation, the extent of the rights granted or reserved depends upon the terms of the grant or reservation, properly construed. If it is specific in its terms, it is decisive of the limits of the easement.' See also 28 C.J.S. Easements § 80, p. 759; 2 Thompson on Real Property, § 387, p. 567; 3 Powell on Real Property, § 415; Restatement of the Law of Property, §§ 482, 483, and see 80 A.L.R.2d, p. 774.

The above rule applies here. The easement granted to plaintiffs is clear, definite, and certain. The easement instrument itself fixes, regulates, and defines the benefits granted. It specifically grants plaintiffs a perpetual easement for the benefit of Lot 2, Block 3,...