Wildwood Ass'n v. HARLEY TAYLOR, INC.

• Decision Date: 06 August 2003
• Docket Number: No. 22540., No. 22538, No. 22539
• Parties: WILDWOOD ASSOCIATION, a South Dakota not for profit corporation; John G. Spangler; John M. Weiss; Timothy L. Skinner and Donna L. Skinner; James A. Oswald and Helen I. Oswald; Daniel J. Finn, Jr. and Melinda Finn, Plaintiffs and Appellees, v. HARLEY F. TAYLOR, INC., a South Dakota corporation and Red Rock Development Company, LLC, a South Dakota Limited Corporation, Defendants and Appellants, Leo Hamm Family Ranch, LLC, a South Dakota Limited Liability Company; Pennie Lou Slovek, Kellie Sue Weisgram and Shellie Lynn Parker, Defendants and Appellants, The City of Rapid City, a Municipal Corporation, Defendant and Appellant.
• Court: South Dakota Supreme Court

668 N.W.2d 296

2003 SD 98

WILDWOOD ASSOCIATION, a South Dakota not for profit corporation; John G. Spangler; John M. Weiss; Timothy L. Skinner and Donna L. Skinner; James A. Oswald and Helen I. Oswald; Daniel J. Finn, Jr. and Melinda Finn, Plaintiffs and Appellees, v. HARLEY F. TAYLOR, INC., a South Dakota corporation and Red Rock Development Company, LLC, a South Dakota Limited Corporation, Defendants and Appellants, Leo Hamm Family Ranch, LLC, a South Dakota Limited Liability Company; Pennie Lou Slovek, Kellie Sue Weisgram and Shellie Lynn Parker, Defendants and Appellants, The City of Rapid City, a Municipal Corporation, Defendant and Appellant.

Nos. 22538, 22539, 22540.

Supreme Court of South Dakota.

Argued April 29, 2003.

Decided August 6, 2003.

Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.

Terry G. Westergaard of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for appellants Harley F. Taylor and Red Rock Development Co.

Jerry D. Johnson of Banks, Johnson, Colbath & Kerr, Rapid City, South Dakota, Attorneys for appellants Leo Hamm Family Ranch, Pennie Lou Slovek, Kellie Sue Weisgram and Shellie Lynn Parker.

Adam Altman, City Attorney, Michael S. Booher, Assistant City Attorney, Rapid City, South Dakota, Attorneys for appellant City of Rapid City.

MEIERHENRY, Justice.

[¶ 1.] Wildwood Association (Wildwood) brought an action seeking declaratory judgment and injunctive relief against City of Rapid City (City), Harley F. Taylor, Inc. (Taylor), Red Rock Development Co., LLC (Red Rock), Leo Hamm Ranch, LLC (Hamm), and Slovek, Weisgram and Parker, daughters of Leo Hamm (daughters)(collectively Defendants). Wildwood petitioned the court to determine if the section line had been vacated, if the access easement was public and if the easement was appurtenant. While this action was pending, the City filed a condemnation action to take the easement at issue.¹ The trial court consolidated the actions for trial. Defendants appeal the trial court's findings (1) that the section line had been vacated, (2) that the access easement was a private easement and (3) that the private easement was for personal use. We reverse issue one and affirm issues two and three.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] Wildwood Subdivision was originally developed in 1977 and 1978. The actual plat of Wildwood was approved in 1978. The 1978 plat depicts a section line and the north thirty-three feet of the section line right-of-way between section 21 and section 28. The section line right-of-way between section 21 and section 28 was unimproved. The 1978 plat did not include any property south of the section line. The section line is the southern boundary to Wildwood lots 19, 20, 21, 22, and 23. The 1978 plat also indicates an access easement which runs across lot 23, which is owned by Daniel and Melinda Finn. The access easement and the section line highway are known as Shooting Star Trail.

[¶ 3.] On May 21, 1979, Wildwood was re-platted. Lots 18, 19, 20, and 21 along with other additions to Wildwood were platted and approved by the Common Council of the City of Rapid City. Although Wildwood was not annexed into the City at this time, it was within the City's three-mile extra-territorial jurisdiction. On the 1979 plat, neither the north nor the south section line right-of-way was shown. When the City annexed the Wildwood subdivision in 1984, the annexation map indicated the entire area to be annexed but did not show the section line.

[¶ 4.] The status of the section line and access easement became an issue when the City initiated a plan to annex Red Rock. In 1999, Red Rock began submitting development requests to the City. Red Rock proposed a 360-acre planned unit development. The development consisted of 280 single-family lots and 80 multi-family lots plus an 18 hole golf course. In order for the City to provide municipal services including water and sewer to the development, Red Rock needed to be annexed. However, Red Rock was not contiguous to the City as required for annexation. To solve this problem, Red Rock approached Leo Hamm about annexing sixty acres of his property which adjoined Red Rock and the City. Ultimately an agreement was struck with Hamm in which Red Rock would pay him $50,000 in exchange for his acquiescence to annex sixty acres of his property. As part of the agreement, the City would grade the section-line road at issue along the northern boundary of Hamm's property to meet City specifications. Also the City agreed to acquire a public right-of-way across lot 23 from Wildwood to the section line road. On July 10, 2000, the City council passed a resolution indicating that it was in the public interest to annex the property. The City included in the resolution its intent to acquire the sixty-six foot wide easement on lot 23 and to dedicate the easement as a public right-of-way at the City's expense. The resolution also incorporated the City's promise to construct at least a twenty-eight foot roadway on the section line in accordance with City standards.

[¶ 5.] The residents of Wildwood first became aware of the proposed section line road when the City began construction. Wildwood Association commenced a declaratory judgment action seeking to ascertain the legal status of the section line and access easement and requested injunctive relief. The trial court ruled in favor of Wildwood finding that the section line easement had been vacated and that the sixty-six foot access easement was a private easement personal to Hamm and Taylor. Red Rock, Taylor, Hamm and the City appeal raising the following issues:

1. Whether the section line was vacated by the appropriate governmental authority.

2. Whether the trial court erred in finding that the access easement was private.

3. Whether the trial court erred in finding that the access easement was personal only to Hamm and Taylor.

STANDARD OF REVIEW

[¶ 6.] Findings of fact are reviewed under a clearly erroneous standard. City of Sioux Falls v. Hone Family Trust, 1996 SD 126, ¶ 6, 554 N.W.2d 825, 826. "Clear error means, `after a review of all the evidence,' we are left with a definite and firm conviction that a mistake has been made." Id.; Fanning v. Iversen, 535 N.W.2d 770, 773 (S.D.1995) (quoting Cordell v. Codington County, 526 N.W.2d 115, 116 (S.D.1994)).

DECISION

1. Whether the section line was vacated by the appropriate governmental authority.

[¶ 7.] Defendants claim that the section line easement was not vacated because there was no affirmative action by the appropriate governmental authority. The trial court found that the section line was vacated by the Common Council of the City of Rapid City in connection with the approval of the 1978 plat and the subsequent annexation of the Wildwood Subdivision.

[¶ 8.] Historically, the section line was established by congressional action. In 1866, Congress declared that: "`The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.'" Costain v. Turner County, 72 S.D. 427, 36 N.W.2d 382, 383 (1949) (quoting § 8, Ch 262, 14 Stat 253, 43 USCA § 932). Thereafter the legislature of the Dakota Territory enacted Ch 33 SL 1870-1871 stating: "That hereafter all section lines in this Territory shall be and are hereby declared public highways as far as practicable...."² Today SDCL 31-18-1 provides:

There is along every section line in this state a public highway located by operation of law, except where some portion of the highway along such section line has been heretofore vacated or relocated by the lawful action of some authorized public officer, board, or tribunal.

Every section line shall be sixty-six feet wide with thirty-three feet on each side of the section line. SDCL 31-18-2.

[¶ 9.] Neither party disputes that the 1978 plat clearly sets forth a section line and thirty-three feet section line easement dedicated to the public. However, the parties dispute whether the approval of the 1979 plat without the section line easement was sufficient governmental action to extinguish the section line easement. On the 1978 plat, lots 17-21 were drawn but not shown as platted. The 1979 plat depicted the lots as platted and clearly identified the section line running along the southern boundary of lots 19-21 but did not identify the section line easement. Wildwood claims that the approval of the 1979 plat vacated the section line easement shown on the 1978 plat.

[¶ 10.] In order for a previously recorded plat to be vacated by filing a new plat, compliance with the statutory requirements set forth in SDCL Ch 11-3 is necessary. SDCL 11-3-20.2 provides:

The new plat shall specifically describe all previous plats sought to be vacated including the book and page or document number of all existing plats in the register of deeds office. The new plat shall specifically state that all previous plats so listed are to be vacated in whole or in part. The new plat shall comply with the public highway provisions of § 11-3-17.

If a plat is filed and is intended to vacate a previous plat, the register of deeds shall write "vacated" across that portion of the plat so vacated and make reference on the plat to the volume and page number in which the instrument of vacation is located. SDCL 11-3-18. The 1979 plat is void of any marking vacating the 1978 plat. Furthermore, this Court recently stated in Hofmeister v. Sparks, that the filing of a new plat does not automatically vacate a prior plat. 2003 SD 35, ¶ 4, 660 N.W.2d 637, 639. Another case involving a dispute of whether a section line was vacated was Millard v. City of Sioux Falls, 1999 SD 18, 589 N.W.2d 217. In Millard, the city and county approved a "plat" which did not show the section line easement. This Court determined that the section line easement still existed because the county had not previously...