Thompson v. Finnerud , 51 S.D. 106 ( 1927 )

GATES, J.

In January, 1903, one Troeh, who -was the owner of the land, executed and delivered to one Dove joy the following instrument:

“Lease.

“This indenture, made this 10th -day of January, 1903, by and between J. H. Troeh, party of the first part, and Geo. Lovejoy, party of the second ¡part, witnesseth:

“That for and in consideration of the sum of ten dollars to him in hand paid, the receipt whereof is hereby acknowledged, the said party of the first part has let and leased, and by these presents does let and lease, to the party of the second part, the following described real estate for the purpose of shooting any and all game in legal season for ninety-nine years, from andl after this date, viz: Dot six in section ten (10) in township one -hundred and seventeen (117) of range fifty-four (54), 'Codington county, South Dakota. And it is understood and. a-greed that the said party of the second part may take with him, at any time, one friend to- whom shall be extended- the privilege of shooting. And it is agreed and understood that the right of shooting on said lan-d shall be limited and restricted to eight others besides- the parties to this contract and that except as herein stated no one else shall have any right to- go upon and use said premises for shooting purposes. It is further understood that this lease is assignable to one person at a time.

“In witness whereof the said parties have hereunto set their hands the -day and year first above written. J. H. Troeh.

“In presence of: S. B. Sheldon.

“S. E. Fowler.”

(Certificate of acknowledgment.)

At the same time Troeh executed and delivered to eight other persons instruments similar in form. One of them was to- defendant Finnerud; another to one Countryman, under whom defendant Fischer claims. 'Defendant Lamm claims under the Lovejoy instrument. These instruments were recorded in the register of deeds offifce 'before Troeh sold and conveyed the land. This action was brought in October, 1923, by plaintiff, mesne grantee of Troeh, to determine adverse claims to- the real estate. 'Separate findings, conclusions, and judgments were entered against- plaintiff and in favor of each defendant establishing the right of each defendant under said instruments as an easement and as- a leasehold interest, and the court also established defendant’s rights in the premises by prescription founded on such instruments. Prom the judgments and an order denying a new trial plaintiff appeals.

Plaintiff -contends that the instrument is a mere license, revocable and nonassignable; that, as a lease, it extends beyond the statutory permissible period (section 296, Rev. Code 1919), and is void; and that defendants did not acquire prescriptive rights.

- Respondents contend that the instrument is a grant of an easement, or, if not, then .it is a valid lease, and, if neither, then that defendants have acquired! by prescription the rights granted by the instruments.

Many errors are assigned and discussed, but, if we are right in determining that the instrument was a grant of a burden or servitude upon land, all other questions fade into' insignificance.

Appellant in support of his license theory, relies, among other authorities, upon Butz v. Richland Twp., 28 S. D. 442, 134 N. W. 895; Polk. v. Carney, 21 S. D. 295, 112 N. W. 147, 130 Am. St. Rep. 719; Price & Baker Co. v. Madison, 17 S. D. 247, 96 N. W. 933; and Schnuerle v. Gilbert, 43 S. D. 535, 180 N. W. 953.

It is perfect^ true that the right to hunt upon land may 'be given by license, but it is just as true that such right may be granted as an easement or servitude. Rev. Code 1919, §§ 337, 338. Perhaps in a strictly technical sense the right given by the instrument above set forth may not properly be called an easement, because the above section 337 defines an easement as a burdlen or servitude upon land which is attached to other land. Section 338 provides that the right of taking game is one of the burdens or servitudes upon land that may be granted, though not attached to land. The right under discussion here did not purport to be attached to other land, and therefore it was a burden or servitude upon land, if it was neither a license nor a leasehold interest.

The very terms of the instrument preclude its interpretation as a license. 17 R. C. R. 564. Two of the characteristics of a license are expressly negatived, viz.: It is not revocable within the 99-year period, and it is assignable. Without more, it is suf7 ficient to deny interpretation of this instrument as a license, because manifestly the parties did not so intend.

The extent of a servitude is to be determined by the-terms of the grant or the nature of the enjoyment by which it was acquired. Rev. Code 1919, § 342. Whether it is to foe interpreted as granting a servitude or a leasehold interest is perhaps not so important to decide, 'because, if it is a lease, it does not come within the prohibition of section 296, Rev. Code 1919, but, in view of the nature of ’the right granted, it seems to us that such right is a burden or servitude upon the land which could properly be called an easement, if it were attached to other land rather than a mere leasehold interest. 12 R. C. R. 689; 27 C. J. 943; Isherwood v. Salene, 61 Or. 572, 123 P. 49; 40 L. R. A. (N. S.) 299; and St. Helen Shooting Club v. Mogle, 234 Mich. 60, 207 N. W. 915. It is not necessary that the word “grant” be contained in the instrument in order to constitute the given right an easement or a servitude. 9 R. C. L. 748; Evenson v. Webster, 3 S. D. 382, 53 N. W. 747, 44 Am. St. Rep. 802.

We are of the opinion, therefore, that the judgments and order appealed from should be affirmed, in so far as servitudes upon land are established for the period of 99 years from the date of the instruments.

CAMPBBRR, P. J., and PORRBY, SHERWOOD, and BURCH, JJ., concur.