Vander Heide v. Boke Ranch, Inc.

• Decision Date: 11 July 2007
• Docket Number: No. 24285.,No. 24273.,24273.,24285.
• Citation: 736 N.W.2d 824,2007 SD 69
• Parties: Timothy VANDER HEIDE and Ruth McLaughlin, Plaintiffs and Appellants, v. BOKE RANCH, INC., a South Dakota Corporation, Defendant, Third Party Plaintiff and Appellee, v. Barry D. Bender and Marjorie J. Bender, Third Party Defendants.
• Court: South Dakota Supreme Court

736 N.W.2d 824

2007 SD 69

Timothy VANDER HEIDE and Ruth McLaughlin, Plaintiffs and Appellants, v. BOKE RANCH, INC., a South Dakota Corporation, Defendant, Third Party Plaintiff and Appellee, v. Barry D. Bender and Marjorie J. Bender, Third Party Defendants.

No. 24273.

No. 24285.

Supreme Court of South Dakota.

Considered on Briefs on April 23, 2007.

Decided July 11, 2007.

Courtney R. Clayborne of Clayborne, Loos, Strommen & Gusinsky, Rapid City, South Dakota, Attorneys for appellants.

Brad P. Gordon, Roger A. Tellinghuisen of Tellinghuisen & Gordon, Spearfish, South Dakota, Attorneys for appellees.

GILBERTSON, Chief Justice.

[¶ 1.] On July 13, 2005, Timothy Vander Heide (Timothy) and his wife Ruth McLaughlin (Ruth) (collectively "Vander Heides") filed a complaint in the South Dakota Fourth Judicial Circuit against James Boke (James) and Boke Ranch, Inc. (collectively "Boke"). Vander Heides' complaint alleged an oral agreement modifying a written easement and sought a declaratory judgment as to same, as well as to a determination of the location of the easement and scope of access restrictions. On August 22, 2005, Boke filed his answer. Subsequently, Boke amended his answer and filed a third-party complaint against Barry D. and Marjorie Bender (collectively "Benders") alleging that Benders had expanded the use of the easement beyond its express provisions. On June 12, 2006, a trial was held after which the circuit court entered its memorandum decision, findings of fact, and conclusions of law in favor of Boke as to the issues of oral modification and location of the easement, in part for Boke as to the issue of restriction on access, and in favor of Benders as to the use issue. We affirm in part and reverse in part.

FACTS AND PROCEDURE

[¶ 2.] In June 1982, Lawrence County vacated a road and right-of-way running east and west through the adjoining properties of Loren R. Dodds and Dwaine D. Dodds (collectively "Dodds"), on the west end and the estate of Elvin F. Mitchell (Mitchell), on the east end. The right-of-way reverted to the adjacent property owners, Dodds and Mitchell. The roadway had fallen into disrepair and had essentially become a grass-grown, two-wheel path after years of minimal maintenance. In July 1982, Dodds and Mitchell executed a written easement that provided for the mutual access and use of the roadway through their respective properties.¹ Some time during the mid-1980s, Mitchell sold its property to Ruth. In 1999, Dodds sold their property to Boke.

[¶ 3.] Thereafter, Boke applied to the Lawrence County Board of Commissioners to rezone his property for development purposes from agricultural to rural residential.² Some time during the Fall of 2000, in advance of the rezoning hearing, Boke and Timothy had a discussion about the rezoning application and Boke's intentions. Boke located Timothy in his driveway on the Vander Heide property. The record evinces that the nature of that discussion is in dispute.

[¶ 4.] At the time Boke was applying to rezone his property, there were several groups opposing any rural development in the area. Timothy has stated that the conversation constituted a negotiation for his agreement not to oppose Boke's rezoning application. At a preliminary hearing he testified, "we weren't big fans of seeing this property developed," but that "I would refrain from objecting to the rezoning of the property if [Boke] would agree to abandon his right to exit any traffic along the existing easement towards the east through our property.... [I]t was his property. That was the agreement." Timothy also testified that he believed this to be a one-way restriction, while Boke testified at trial that he believed Timothy reciprocally intended to use that portion of the roadway on the Vander Heide property to provide ingress and egress for any future development established on their property.

[¶ 5.] In disputing the claim that an oral agreement was consummated during the conversation, Boke indicated that on the day he met with Timothy, their discussion was "casual" and that it actually had a twofold purpose. At trial he testified that first, he wanted to thank Timothy for helping his daughter with a weed sprayer. Second, Boke testified that since Ruth, as the deed holder to the Vander Heide property, had been given notice of his rezoning application, he wanted to make himself available prior to the rezoning hearing, as a courtesy, to answer any questions she or Timothy might have about the development plan. Moreover, in refuting the claim of an oral agreement, Boke, a real estate agent testified, "When I make agreements concerning real estate, I have an attorney draw up an agreement. We were discussing what the intent was for the easement and what the intent was for the rezoning."

[¶ 6.] According to Boke, Timothy had two concerns about the project; the potential affect on the creek that traversed the Vander Heide property, and increased traffic on the portion of the roadway located on their land. Boke testified that he told Timothy "the plans for the rezoning were not to exit any primary traffic that way." He also testified that due to the condition of that part of the roadway, to do otherwise would require making considerable improvements and "that that was not [his] intent." He indicated that the county wanted to maintain the roadway through Vander Heides' property as an emergency access that the two discussed that use and that Timothy did not object.

[¶ 7.] According to Boke, Timothy expressed no intent to appear at the rezoning hearing to object to the Boke application. He testified that to the contrary, Timothy "was not real pleased with the other parties in the area fighting all the development and he was rather pleased to see [Boke's development] going forward as long as he did not get a lot of extra traffic his way." Boke stated that despite Timothy's interest in creek flow and traffic issues, at no point during the discussion did he offer a quid pro quo wherein he would refrain from objecting to the rezoning in exchange for Boke's favorable consideration of his concerns. Neither did the two discuss the potential for future development of the Vander Heide property nor what, if any, access to such a project Boke would allow over its property.

[¶ 8.] The events giving way to the dispute between the parties began in 2005. Boke's rezoning application was approved, although through 2005, no work had commenced on the development. In 2003, Ruth quit claimed Timothy an interest in the Vander Heide property. In 2005, Timothy contacted Boke to inform him about a potential sale of the west 200 acres of Vander Heide property adjoining Boke's.

[¶ 9.] Afterward, the two buyers went to see Boke to discuss access to the property they were proposing to purchase. They had been told by Timothy that the roadway easement would provide them access over Boke's property. Boke testified that during this meeting he told the buyers that there was an easement and since it ran with the land they had a right to whatever it provided. However, he also told them that what the easement provided was uncertain. Timothy testified at a preliminary hearing that when the buyers told Boke that they planned to build a road within that part of the easement on Boke's property, Boke replied that if they did, he would exit his development to the east over the property they were proposing to purchase and the Vander Heide property it adjoined.

[¶ 10.] Boke then sent a letter to Vander Heides attempting to clarify his understanding of what was provided for by the easement and his belief that if any agreement had been reached between him and Timothy during their conversation in 2000, it provided that neither party was entitled to exit its development traffic over the property of the other. Subsequently, the prospective buyers backed out of the purchase and Vander Heides filed a claim against Boke seeking a declaratory judgment as to the alleged oral modification agreement as well as a determination of the location of the easement and the scope of its access restrictions.

[¶ 11.] On September 30, 2005, during the pendency of this litigation, Vander Heides sold the 200 acres adjoining Boke's property to Benders. In late October or early November 2005, Benders called Boke to inform him that on the following day they would begin graveling the roadway extending west over Boke's property. Benders were about to start construction of a new home and needed to gravel the roadway to facilitate access for construction and utility workers and their equipment. Boke filed for injunctive relief to stop the graveling operation, but the application was not heard until after the graveling had been completed. Thereafter, Boke sent letters to the Benders and Vander Heides informing them that he would be installing locking gates across the roadway on his property. The letter included keys so that the Benders and Vander Heides could open the gates.

[¶ 12.] On February 13, 2006, the Vander Heides and Benders filed a motion for a temporary order to restrain Boke from maintaining the locking gates. In his affidavit in support of the application for a temporary restraining order, Timothy again addressed the alleged oral agreement stating that he and Ruth had:

surrendered and forgave . . . rights to contest and resist [Boke's] petition for zoning change on the condition that and not by way of limitation: (1) [Boke's] development not in any way compromise the direction, water quality, or flow of a certain creek which runs over and through [the Vander Heide] real property and (2) that [Boke] would develop the property and mandate the flow of traffic in such a way that traffic from [Boke's] purchasers not proceed east to west past [the Vander Heide] residence on the previously referenced roadway, and on other conditions not specifically set forth herein.

(Emphasis added). In addition, Timothy alleged in his affidavit that Boke had...