Smith v. Sponheim

• Decision Date: 18 November 1986
• Docket Number: No. 15310,15310
• Citation: 399 N.W.2d 899
• Parties: Hazel SMITH, Ralph Greslin and Charleen Greslin, Terry Mudder and Karen Mudder, Sidney Pulaski and Mary Ann Pulaski, David Geary, Dave Clausen and Barb Clausen, Bruce Rath, Donald Sargent and Jesse Small, Plaintiffs and Appellees, v. Cecil SPONHEIM, Harlan Kistler and Betty Kistler, Kenneth Atkinson, John Gapp, Eugene Albrecht, and Meade County acting By and Through its Board of County Commissioners, Defendants and Appellants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 899

399 N.W.2d 899

Hazel SMITH, Ralph Greslin and Charleen Greslin, Terry

Mudder and Karen Mudder, Sidney Pulaski and Mary Ann

Pulaski, David Geary, Dave Clausen and Barb Clausen, Bruce

Rath, Donald Sargent and Jesse Small, Plaintiffs and Appellees, v. Cecil SPONHEIM, Harlan Kistler and Betty Kistler, Kenneth

Atkinson, John Gapp, Eugene Albrecht, and Meade

County acting By and Through its Board

of County Commissioners,

Defendants and Appellants.

No. 15310.

Supreme Court of South Dakota.

Considered on Briefs Nov. 18, 1986.

Decided Jan. 28, 1987.

A.P. Fuller, Amundson, Fuller & Delaney, Lead, for plaintiffs and appellees.

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

SABERS, Justice.

This appeal arises from a declaratory judgment action under SDCL ch. 21-24 by a group of Meade County, South Dakota residents and property owners (Smith/appellees). Smith and others requested a declaration that a road leading to their various properties had been dedicated and accepted for use as a public road, or, in the alternative, for a prescriptive easement over the property of defendants (formerly Albrecht, now Sponheim/appellants). The trial court entered a judgment in July 1983, which declared that a public road existed and that no prescriptive easement existed. Albrecht appealed to this court. We reversed the trial court in Smith v. Albrecht, 361 N.W.2d 626 (S.D.1985), on other grounds, i.e., that Meade County was an indispensable party to the action.

After Meade County (County) was joined as a party defendant, a court trial was held on November 21, 1985. The trial court entered Findings of Fact, Conclusions of Law, and a Judgment on January 29, 1986, which declared the subject roadway a public road and granted the general public unlimited rights of ingress and egress along the entire roadway. Sponheim appeals to this court. We affirm.

Facts

The general background of this case is set forth in Smith v. Albrecht, 361 N.W.2d at 626-627.

The disputed Meade County 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 Sponheim, the quality of life in the area decreased as the subdivision developed. Sponheim contends that increased use of the road has created problems of safety, health, vandalism, nuisance, and road deterioration.

The rising concern among the residents prompted a community meeting which was held 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 appellees 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.

Sponheim's Claims

Sponheim raises two issues on appeal: (1) whether the evidence demonstrates the landowners' intent to relinquish and the public's acceptance of the property for use as a public road, and (2) whether the evidence supports the conclusion that a public highway exists under SDCL 31-3-1.

1. THE EVIDENCE DEMONSTRATED THE LANDOWNERS' INTENT TO RELINQUISH AND THE PUBLIC'S ACCEPTANCE OF THE PROPERTY FOR USE AS A PUBLIC ROAD.

Findings of fact should not be set aside unless clearly erroneous, and due regard should be given to the trial court to judge the credibility of the witnesses. SDCL 15-6-52(a); Brusseau v. McBride, 245 N.W.2d 488, 491 (S.D.1976). In applying this standard, this court will not overturn the trial court's decision unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made. Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D.1985).

Smith does not claim an express dedication of the subject roadway. In respect to an implied dedication of streets, this court has said:

'One of the methods of acquiring the right to the use of land for a street is that of the implied dedication of the same by the owner of the fee. In an implied common-law dedication, the use of such land by the public as a street, with the knowledge of, and without objection by, the owner of the fee for a number of years, is evidence of such dedication, and from such use by the public, without objection by the owner of the fee, a jury may presume an actual dedication of such street to the public use.'

Roche Realty & Investment Co. v. Highlands Co., 29 S.D. 169, 176-177, 135 N.W. 684, 685 (1912) citing Mason v. City of Sioux Falls, 2 S.D. 640, 648, 51 N.W. 770, 772-773 (1892).

Generally, no particular formality is essential to an implied dedication or acceptance of land for a public use. Roche Realty, supra. An actual intent to dedicate the land to public use must exist, but proof of use for a period much shorter than that required to show title by prescription may be sufficient to prove such intent and dedication. The extent and character of the use furnishes evidence of the intention to dedicate. Edmunds v. Plianos, 74 S.D. 260, 263, 51 N.W.2d 701, 702 (1952); Mason, supra. The intention to dedicate must clearly appear and may be shown by deed, words, or acts. If by acts, such as the trial court found in this case, they must be such acts as are inconsistent with any construction except the assent to dedication. First Church of Christ, Scientist v. Revell, 68 S.D. 377, 385, 2 N.W.2d 674, 678 (1942).

A long line of South Dakota cases on the doctrine of implied dedication of private property to public use have established that:

Conduct on the part of the owner that is clearly expressive of an intention to dedicate usually amounts to a dedication, if acted upon by the public in a manner which clearly justifies the inference of an acceptance.

Mason, supra; Larson v. Chicago, M. & St. P. Ry. Co., 19 S.D. 284, 103 N.W. 35 (1905); Roche Realty, supra; First Church, 68 S.D. at 383, 2 N.W.2d at 677; Stannus v. Heiserman, 72 S.D. 567, 569, 38 N.W.2d 130 (1949); Edmunds, supra; Brusseau, 245 N.W.2d at 489.

To prevent the establishment of highways on public and private lands by a user, the legislature enacted Chapter 100, Laws of 1893. ¹ This statute has been reenacted in successive revisions and presently appears as SDCL 31-3-2 which provides:

Notwithstanding Sec. 31-3-1, the mere use by the public of any route of travel along or across public or private land, or the right-of-way of any railroad company for any period, shall not operate to establish a public highway and no right shall inure to the public or any person by such use thereof.

This court has held that mere use will not support an inference of implied dedication. Roche Realty and First Church, supra; Lacey v. Judge, 68 S.D. 394, 3 N.W.2d 115 (1942); Stannus, Edmunds, and Brusseau, supra. "[W]hat amounts to a dedication by implication depends upon the facts of the particular case, and no hard and fast rule can be laid down as a guide for the courts." Evans v. City of Brookings, 41 S.D. 225, 229, 170 N.W. 133, 134 (1918); Stannus; Brusseau; Miller v. Scholten, 273 N.W.2d 757, 762 (S.D.1979).

The trial court's Findings of Fact included the following:

--Since 1940, the road has been used by residents of the area and their guests which include all parties to this action and their predecessors in title.

--The road has also been used by: hunters, woodcutters, U.S. Forest Service employees, S.D. Department of Game, Fish & Park employees, as well as business people who have provided service to the residents living on the road and west of the road, and other members of the general public.

--Smith's husband performed frequent maintenance work on the road from 1951 until approximately 1977.

--In 1957, Meade County caused work to be performed by the county maintenance and road crews on a portion of the subject road which crosses property now owned by appellants Sponheim, Kistler, Atkinson, and Gapp.

--In 1957, the county widened the road, constructed a roadway ditch, and installed culverts. The county crews performed surface grading and gravel work on the road.

--In 1957, the predecessors in title to appellants Gapp, Atkinson, Sponheim, and Kistler, moved their respective roadside fences to allow Meade County to have their land to use in widening and improving the road and installing a roadway ditch on the south side of the road.

--In 1972, Meade County's highway maintenance crews performed work on the road to repair damage caused by flooding.

--From approximately January 1975, until about June 1978, the Meade County Highway Department maintained the road annually. Such maintenance included road grading and graveling work, snow removal, and maintenance of the roadway ditch by county work crews.

--In 1977, the Meade County Commission approved and accepted a plat for a new subdivision which was located west of the disputed road.

--When Meade County accepted the plat, the only public access to the subdivision was via the road.

--A Meade County Commissioner testified that the road is public and that Meade County is responsible for its maintenance and upkeep.

These findings are sufficient to support the judgment of an implied...