Titus v. Chapman

Decision Date22 September 2004
Docket NumberNo. 23116.,23116.
Citation687 N.W.2d 918,2004 SD 106
PartiesStacey & Marilyn TITUS, Plaintiffs and Appellees, v. Sandra CHAPMAN, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Courtney R. Clayborne of Johnson Eiesland Law Firm, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.

James W. Olson of Wilson, Olson & Nash, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County, South Dakota. Both parties agreed on the proper legal boundary line, but differed as to its location based on competing surveys. Following a hearing on opposing motions for summary judgment, the trial court granted Tituses' motion. The trial court also held Chapman did not establish a claim of adverse possession. The trial court did not grant Chapman's motion to join necessary parties. Chapman appeals all three issues. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The land in dispute is located in rural Pennington County, South Dakota. In 2001, Tituses purchased a parcel of land commonly known as Lot A, located in the Northwest Quarter of the Southeast Quarter, Section 12, Township One North, Range Six East of the Black Hills Meridian. The land was unoccupied at the time the law suit was filed.

[¶ 3.] On July 5, 1989, Chapman purchased the property commonly known as Lot 2, located in the Northeast Quarter of the Southeast Quarter, Section 12, Township One North, Range Six East of the Black Hills Meridian. Throughout her ownership of the land, Chapman has maintained a mobile home on the property. Prior to Chapman's ownership of Lot 2, the property was unoccupied, unenclosed by a substantial fence or other natural barrier, and uncultivated.

[¶ 4.] The two lots have a common property line both parties agreed is the 1/16th section line of Section 12. Surveys of the area indicated the Chapman lot's western edge terminated at the 1/16th section line, while the Tituses lot's eastern edge terminated at the 1/16th section line. However, competing surveys indicated two different locations for the 1/16th section line. The dispute centered on a 34 foot strip of land claimed by both parties, and upon which Chapman had located a mobile home, cistern and portions of an old fence that never substantially enclosed the property.

[¶ 5.] The U.S. Forest Service originally surveyed the area in question in April of 1879 and August of 1886. The survey resulted in a plat of Section 12, Township One North, Range Six East of the Black Hills Meridian. The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners.1

[¶ 6.] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the Southeast Quarter of Section 12, together with other property. The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the 1/16th line of Section 12. The eastern boundary of Lot A was not monumented by Bangs. However, the Bangs survey indicated an artificial monument, an iron pin, on the southern portion of the 1/16th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter. The record is unclear if Bangs set the iron pin, or merely located it when conducting his survey.

[¶ 7.] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A, B, and C. The Chapman lot was not platted at the time, but was eventually to be further subdivided in 1983 from Tract B. The western boundary of Tract B was intended to terminate at the 1/16th section line according to the Ferguson survey.

[¶ 8.] However, Ferguson did not follow the original U.S. Forest Service Black Hills monuments to determine the original location of the 1/16th line. Instead, Ferguson located an iron pin or pipe without a surveyor's cap at the southwest corner of Tract C. Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the 1/16th line. There were no facts to indicate the origins of the iron pin, or to identify it as denoting the original 1/16th section as located by the U.S. Forest Service survey. Despite the absence of clear and convincing evidence as to the identity of the pin, Ferguson accepted it as the 1/16th line and conducted measurements to locate the western edge of Tract B, which would eventually become the western edge of Lot 2. Ferguson indicated he marked the other three corners of Tract B with 5/8th inch rebar. The end result was the addition of approximately 34 feet to Tract B on its western boundary.

[¶ 9.] On April 18, 1983, a plat subdividing Tract B into lots, including Lot 2 which was eventually purchased by Chapman, was filed by surveyor David Landguth. Landguth relied on the Ferguson survey and set the western edge of Lot 2 at the 1/16th section line. However, the 1/16th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the U.S. Forest Service survey. Landguth then marked the western boundary corners of Lot 2 with 5/8th inch rebar.

[¶ 10.] Following their purchase of Lot A in 2001, Tituses commissioned a survey of their property prior to beginning construction of a new home. The survey, conducted by Dean Scott, retraced the original footsteps of the U.S. Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the U.S. Forest Service in 1879 and 1886, which monumented the southeast, southwest and northwest corners of Section 12. Instead of using the iron pin of unknown origin as the location of the 1/16th section line as had Ferguson and Landguth before him, Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot portions to arrive at the original location of the 1/16th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States.

[¶ 11.] When Scott was unable to ascertain the exact location of the northeast corner due to the obliteration of the monument, he extended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the U.S. Forest Service surveyors. Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States, the location of the northeast corner of Section 12 was computed. Once the complete exterior boundary of Section 12 was determined, Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the U.S. Forest Survey.

[¶ 12.] Tituses moved for summary judgment, and the trial court granted the motion. By order the trial court established the 1/16th line as originally set by the U.S. Forest Service as the property line common to Tituses and Chapman. The trial court also entered an order denying Chapman's motion for summary judgment on the issue of adverse possession. The trial court held the markings used to establish Chapman's property line were not open, visible, notorious, continuous or hostile occupation of the property, and in the alternative, Chapman had not been in possession of the property for 20 years as required by statute. Chapman's motion to join necessary parties was also denied by the trial court.

STANDARD OF REVIEW

[¶ 13.] Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." SDCL 15-6-56(c). We will affirm when no genuine issues of material fact exist, and the legal questions have been correctly decided. Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791 (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990) (additional citations omitted). The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Id. Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court's conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

[¶ 14.] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court. Sherburn, 1999 SD 47, ¶ 4, 593 N.W.2d at 416 (additional citations omitted).

[¶ 15.] A party's status as an indispensable party is a conclusion of law. See Thieman v. Bohman, 2002 SD 52, ¶ 14, 645 N.W.2d 260, 262

. As such, a trial judge has no discretion whether to join an indispensable party, as the language of SDCL 15-6-19(a) is mandatory. Smith v. Albrecht, 361 N.W.2d 626, 628 (S.D.1985) (citing Kapp v. Hansen, 79 S.D. 279, 286, 111 N.W.2d 333, 337 (S.D.1961)). As a conclusion of law it is reviewed by this Court de novo, giving no deference to the circuit court. Sherburn, 1999 SD 47, ¶ 4,

593 N.W.2d at 416 (citations omitted).

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