Townsend v. Yankton Super 8 Motel, Inc., TW-Y

• Citation: 371 N.W.2d 162
• Decision Date: 25 October 1984
• Docket Number: TW-Y,No. 14473,14473
• Parties: George A. TOWNSEND and Lewis F. Weinberg, d/b/aankton Properties, Plaintiffs and Appellants, v. YANKTON SUPER 8 MOTEL, INC. and Blue Fox Bar, a South Dakota Corporation, Defendants and Appellees. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 162

371 N.W.2d 162

George A. TOWNSEND and Lewis F. Weinberg, d/b/a TW-Yankton

Properties, Plaintiffs and Appellants, v. YANKTON SUPER 8 MOTEL, INC. and Blue Fox Bar, a South Dakota

Corporation, Defendants and Appellees.

No. 14473.

Supreme Court of South Dakota.

Considered on Briefs Oct. 25, 1984.

Decided July 3, 1985.

Denis R. Eckert, Elk Point, for plaintiffs and appellants.

Joseph P. Barnett of Siegel, Barnett & Schutz Aberdeen, for defendant and appellee Yankton Super 8 Motel, Inc.

C.E. Light of Light Law Offices Yankton, for defendant and appellee Blue Fox Bar, A South Dakota Corp.

WOLLMAN, Justice.

Plaintiffs brought this action asking for a judgment establishing an easement for seventy-eight automobile parking spaces on property owned by defendant, Blue Fox Bar, and for costs and attorney fees against Yankton Super 8 Motel, Inc. (Super 8) incurred in securing such easement. Blue Fox Bar and Super 8 filed cross-claims against each other. The trial court entered judgment decreeing that plaintiffs have an easement for seventy-eight parking spaces on Blue Fox Bar's property conditioned on plaintiff's continuing use of their property for restaurant purposes. The judgment ordered Super 8 to pay the attorney fees and costs incurred by Blue Fox Bar in defending the action. Super 8 has satisfied that portion of the judgment entered against it. Plaintiffs have appealed from that portion of the judgment limiting the easement to its use of the property for restaurant purposes. Blue Fox Bar has appealed from that portion of the judgment awarding plaintiffs an easement on its property. We affirm the judgment in its entirety.

Plaintiffs owned the following described real estate in Yankton County:

Lots A, B, and C of Lot 6 in the Northwest Quarter of the Northeast Quarter, Section 17, Township 93 North, Range 55, West of the 5th P.M.

A plat of Lots A, B, and C was filed and recorded in the office of the Register of Deeds, Yankton County, Yankton, South Dakota, on February 25, 1975. That plat outlines the property in question as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

(The dimensions of Lot A are ninety feet by ninety feet.)

By warranty deed dated March 10, 1975, Super 8, through its shareholders, Dennis Brown and Ronald Rivett, purchased Lot B from plaintiffs. On March 20, 1975, plaintiffs and Super 8 executed an instrument entitled, "Water-Sewer-Paving Agreement." This agreement provided in part that

[i]n consideration of the sale by [plaintiffs] to and the purchase by Super 8 of certain property on Highway 50, East of Yankton, and in further consideration of the mutual benefit to the parties through the construction and operation of a motel adjoined by a restaurant on said premises, it is hereby agreed as follows ...

[I]t further agreed [sic] that said restaurant shall have the use of 78 parking spaces as shown on the attached plot plan for its customer and employee parking.

At the request of the owners of Super 8, this agreement was not recorded.

Following the sale of Lot B to Super 8, plaintiffs built a restaurant on Lot A.

Brown and Rivett transferred the shares of Super 8 to one Wendell Unverzagt. In turn, Unverzagt later negotiated with Valgene Stratman, majority stockholder in Blue Fox Bar, for the sale to Blue Fox Bar of Lot B and the motel thereon for a price of $950,000. Super 8 represented in its purchase agreement and contract for deed with Blue Fox Bar that it would transfer the property free and clear of all encumbrances. Following his conveyance of Lot B to Blue Fox Bar, Unverzagt forfeited his interest in the shares of Super 8, whereupon ownership was reassumed by Brown and Rivett.

At the time he was negotiating for the purchase of Lot B, Stratman made no inquiry concerning the lot lines of the lot; he did not request or inspect any plat of the premises; he did not request or inspect an abstract of title to the premises; he did not physically inspect the premises to determine what real estate was included; and he did not determine the area of the property he was purchasing. He was aware that the motel and the restaurant were in close proximity, having been in the restaurant during the time that he was negotiating the purchase of Lot B. He was aware that the parking lot whereon customers of both the motel and the restaurant parked was one continuous lot that had no outward physical markings or characteristics that might indicate the line between Lot A and Lot B. Stratman acknowledged that had he looked at the plat of the premises prior to the purchase he would have known that there must have been some parking arrangement between the owners of the restaurant and of the motel.

At the time Blue Fox Bar purchased Lot B, the restaurant located on Lot A was operated under the name of Smitty's Pancake House. It later changed to a Perkins franchise and then to an Uncle Ike's franchise. During the period that the restaurant was operated as Uncle Ike's, Stratman subleased it from Broha, Inc., which was managing the restaurant for plaintiffs. Stratman made no inquiry about the size of Lot A or the parking facilities or arrangements of either the restaurant or the motel at the time he entered into the restaurant lease.

Plaintiffs offer two arguments in support of the trial court's decision. First, they say that a parking easement for the benefit of Lot A existed by implication of law, citing our holdings in Homes Development...