Smith v. Albrecht

• Decision Date: 23 March 1984
• Docket Number: No. 14298,14298
• Citation: 361 N.W.2d 626
• Parties: Hazel SMITH, Ralph Greslin and Carleen Greslin, Terry and Karen Mudder, Sidney and Mary Ann Pulaski, David Geary, Dave and Barb Clausen, Arland and Charlotte Lindsey, Bruce Rath, and Patricia Gueffroy, Plaintiffs and Appellees, v. Eugene ALBRECHT, Cecil Sponheim, Harland and Betty Kistler, Kenneth Atkinson and John Gapp, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 626

361 N.W.2d 626

Hazel SMITH, Ralph Greslin and Carleen Greslin, Terry and Karen Mudder, Sidney and Mary Ann Pulaski, David Geary, Dave and Barb Clausen, Arland and Charlotte Lindsey, Bruce Rath and Patricia Gueffroy, Plaintiffs and Appellees, v. Eugene ALBRECHT, Cecil Sponheim, Harland and Betty Kistler Kenneth Atkinson and John Gapp, Defendants and Appellants.

No. 14298.

Supreme Court of South Dakota.

Considered on Briefs March 23, 1984.

Decided Jan. 30, 1985.

Doyle D. Estes of Gunderson, Farrar, Aldrich & Demersseman, Rapid City, for plaintiffs and appellees; Michael J. O'Connor of Gunderson, Farrar, Aldrich & Demersseman, Rapid City, on brief.

Hermon B. Walker, Rapid City, for defendants and appellants.

MORGAN, Justice.

This appeal is from a declaratory judgment action initiated pursuant to SDCL ch. 21-24 by a group of Meade County, South Dakota, residents and property owners (Smith). Smith requested a declaration that a road leading to the various plaintiffs' properties had been dedicated and accepted for use as a public road; or in the alternative, that a prescriptive easement over the defendants' (Albrecht) property had arisen in favor of Smith. The trial court declared that a public road existed and that there was no prescriptive easement. We reverse.

The disputed road is approximately 1800 feet long and was first traveled around 1940. It remained unimproved until 1957 when the owners of the property over which the road passes removed the fences on the south side of the road and Meade County graded the east end. In 1966, the county graded the rest of the road. Although there are no easements recorded, a power line runs along the north side of the road and a buried telephone cable runs along the south side. The road has been maintained over the years in part by the property owners upon whose land the road lies, in part by the landowners' neighbors who also used the road, and periodically by Meade County. Only a few families from the community used the road until a subdivision was constructed west of the road bed. Usage increased and, according to Albrecht, the quality of life in the area decreased as the subdivision developed. Albrecht contends that increased use of the road has created problems of safety, health, vandalism, nuisance, and road deterioration.

Smith held a community meeting in 1979 or 1980 to discuss: (1) the private nature of the road, (2) closing the road, and (3) the construction of a public highway. The parties approached the Meade County Commissioners who placed a moratorium on building permits in the new subdivision until a public road was constructed and opened on a common section line in 1981. All of the plaintiffs in this action and all present and future residents of the subdivision have access to Highway 14-79 over this new public road. The new road is located 1,320 feet north of the road in issue.

Albrecht has raised four issues on appeal: (1) Whether the county is an indispensable party to an action for the determination that a public road exists as a result of twenty years of continuous use and maintenance? (2) Whether exhaustion of administrative remedies is a condition precedent to obtaining a declaratory judgment that a public highway exists? (3) Whether the party seeking judicial establishment of a public highway by implied dedication has the burden of proving the landowners' intent to relinquish and the public's acceptance of the property by clear and convincing evidence? (4) Whether the conclusion that a public highway exists under SDCL 31-3-1 is sufficiently supported by evidence that maintenance work was performed only six times in forty-two years?

As part of a motion to require Smith to elect between alternative remedies, Albrecht requested that if Smith chose to pursue a declaration that the road was a public road Meade County had to be joined as an indispensable party. Albrecht contends that the county is an indispensable party because a judicial declaration that the road exists will result in county responsibility for the road and thereby impose a tax burden upon county residents without affording them a voice in the decision, and because failure to join the county could lead to further litigation. The trial court apparently ignored the joinder question.

Smith relies upon and the trial court cited SDCL 31-3-1:

Whenever any road shall have been used, worked, and kept in repair as a public highway continuously for twenty years, the same shall be deemed to have been legally located or dedicated to the public, and shall be and remain a public highway until changed or vacated in some manner provided by law.

First, Albrecht argues that a trial court's declaration that a road exists under this statute imposes a duty to maintain on the county and creates an additional tax burden for the county taxpayers. The county, as it represents the taxpayers, is thus a person affected by the decree whose interest was not represented by any party to the suit. See 59 Am.Jur.2d Parties Sec. 13 (1971).

One may be an indispensable party if his interest in the subject matter of the controversy is of such a nature that a final decree cannot be rendered between the other parties to the suit without inevitably affecting that interest. For an absent person to be indispensable he must have a direct interest in the litigation; and if this interest is such that it cannot be separated from that of the parties to the suit, if the court cannot render justice between the parties in his absence, if the decree will have an injurious affect upon his interest, or if the final determination of the controversy in his absence will be inconsistent with equity and good conscience, he is an indispensable party.

This court has defined indispensable parties as those whose interest is such that a final decree cannot be entered without affecting that interest or in whose absence the controversy cannot be terminated. Weitzel v. Felker, 76 S.D. 216, 76 N.W.2d 225 (1956). Indispensable parties may be added by the trial court's order on the motion of any party or on its own initiative at any stage of the action....