Drd v. Aventure Estates

#25595-a-SLZ
2010 S.D. 88IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
DRD ENTERPRISES, LLC, Plaintiff and Appellant,
v.
TODD THOMAS FLICKEMA, DAWN AMY
FLICKEMA, and PSC PROPERTIES, LLC, Defendants and Appellees,
AVENTURE ESTATES, LLC, FIVE
J INVESTMENT CO., LLC, and
PINNACLE HOLDINGS, LLC, Defendants.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
* * * *
HONORABLE WARREN G. JOHNSON
Judge
* * * *
DYLAN A. WILDE of
Brady & Pluimer, PC
Spearfish, South Dakota Attorneys for plaintiff
and appellant.
DWIGHT A. GUBBRUD of
Bennett, Main & Gubbrud, PC
Belle Fourche, South Dakota Attorneys for defendants
and appellees.
* * * *
CONSIDERED ON BRIEFS
ON OCTOBER 4, 2010
OPINION FILED 11/17/10
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ZINTER, Justice
[¶1.] Appellant DRD Enterprises, LLC commenced a declaratory action
against Todd and Dawn Flickema (Flickemas) and PSC Properties, LLC to obtain
an access easement across their properties. DRD based its claim upon a “Blanket
Easement” granted by Dakota Resorts Management Group (Dakota Resorts), a prior
owner of Flickemas’ and PSC’s properties. The circuit court concluded that the
Blanket Easement sufficiently described the servient tenement. Nevertheless, the
court entered judgment for Flickemas and PSC because the court concluded that
they were good faith purchasers without notice of the easement. We only address
the predicate question regarding the sufficiency of the easement description.
Because we conclude that the Blanket Easement failed to sufficiently describe the
servient tenement, we affirm the judgment.
Facts and Procedural History
[¶2.] In 1999, the Gali Family Trust sold legally described real property to
Dakota Resorts on a contract for deed. For ease of reference we refer to the
property as the “Non-Emery Properties.” On February 16, 2000, while in possession
of the Non-Emery Properties, Dakota Resorts executed a document referred to as
the Blanket Easement. By the terms of the document, Dakota Resorts granted “the
rights of a to be determined, as requested, legal right of ingress and egress” for the
benefit of legally described properties. For ease of reference we refer to the
dominant tenement as “Emery No. 4” and “Emery No. 5.” The Blanket Easement
did not, however, provide a legal description of the servient tenement. It only
indicated that the easement “shall provide a reasonable route through the grantor’s
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land that will not cause undo [sic] and unreasonable work and engineering.”
(Emphasis added.) 1 The Blanket Easement was filed with the Lawrence County
Register of Deeds on February 22, 2000, and was recorded as Doc. No. 2000-704.
The Lawrence County Register of Deeds indexed the Blanket Easement against
Emery Nos. 4 and 5. But without a legal description, the Blanket Easement was
not indexed against any servient tenement. 2
[¶3.] On March 30, 2000, a Gali-Dakota Resorts Short Form Contract for
Deed was recorded as Doc. No. 2000-1202. The short form evidenced the 1999 sale
of Non-Emery Properties to Dakota Resorts. It indicated that 378.3 acres, legally
described as “Mineral Survey 1356 . . . of Sections 11, 12, 13, and 14 . . . ,” had been
conveyed. Thus, the Lawrence County Register of Deeds’ records indicated that
Dakota Resorts had been the equitable owner of Non-Emery Properties at the time
it granted the Blanket Easement.
[¶4.] Dakota Resorts sold the dominant tenement (Emery Nos. 4 and 5) to
Kenneth and Amy O’Neill around the time it executed the Blanket Easement. The
O’Neills sold Emery No. 5 to Aventure Estates, LLC in October 2004, and they sold
Emery No. 4 to DRD in November 2005. The warranty deeds given to Aventure and
DRD referenced the Blanket Easement recorded in Document No. 2000-704.
1. The Blanket Easement indicates that it was not prepared by counsel in this
case. It was prepared by Kenneth O’Neill, the purchaser of the dominant
tenement.
2. Instruments are indexed in numerical and grantor-grantee indexes. See
SDCL §§ 7-9-8, 7-9-9.
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[¶5.] Dakota Resorts also sold a portion of the Non-Emery Properties, the
purported servient tenement, to Aventure in October 2004. The warranty deed
conveying title to Aventure made no reference to the Blanket Easement. Aventure
subsequently subdivided and replatted its portion of the Non-Emery Properties into
lots. Aventure then sold Lot 5 to Flickemas on September 30, 2006. Aventure sold
Lot 6 to PSC Properties on October 17, 2006.
[¶6.] Before closing on Lot 5, Lawrence Title Company issued Flickemas an
initial commitment for title insurance. The Blanket Easement was attached to the
commitment and was noted as a special exception. After reviewing the title
commitment, Flickemas asked their real estate agent, Kathy Whitelock, about the
Blanket Easement. Whitelock made an inquiry of the seller’s real estate agent, who
contacted the title company. Lawrence Title Company subsequently amended the
commitment for title insurance, removing the Blanket Easement as a special
exception. Neither Flickemas’ final title insurance policy nor their warranty deed
contained any reference to the Blanket Easement. Additionally, Todd Flickema
personally inspected Lot 5. He observed no access road, trail or path across Lot 5
suggesting the existence of an ingress/egress easement.
[¶7.] Prior to closing on Lot 6, PSC obtained a title insurance commitment.
PSC’s commitment made no reference to the Blanket Easement. PSC’s principal
member, Dr. Paul Cink, inspected the land and did not observe any evidence
suggesting the presence of an ingress/egress easement on Lot 6. Neither PSC’s final
title insurance policy nor its warranty deed mentioned the Blanket Easement.
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[¶8.] In 2006, DRD brought this declaratory action against several
landowners, including Flickemas and PSC, to utilize the Blanket Easement to
obtain an access easement from Terry Peak Summit Road to DRD’s nearby land
(Emery No. 4). Flickemas and PSC claimed the Blanket Easement was of “no
effect” because the easement’s mere reference to “grantor’s land” did not sufficiently
describe the servient tenement. The circuit court granted DRD summary judgment
on this issue. The court ruled that the servient tenement, described only as
“grantor’s land,” could be determined by resort to public records. According to the
court, “grantor’s land” included those Non-Emery properties Dakota Resorts had
owned lying between Emery Nos. 4 and 5 and the Terry Peak Summit Road (which
included Flickemas’ Lot 5 and PSC’s Lot 6). Therefore, the court held that the
Blanket Easement sufficiently described the servient tenement to be effective. The
court ruled, however, that there were factual issues precluding summary judgment
on whether the Blanket Easement burdened Flickemas’ and PSC’s properties
because they may have been good faith purchasers without notice of the Blanket
Easement. 3
[¶9.] Following further discovery, the parties filed additional motions for
summary judgment. The circuit court then concluded that the easement was not in
Flickemas’ or PSC’s chain of title and that Flickemas and PSC were not burdened
by the Blanket Easement because they were good faith purchasers without notice of
3. The circuit court reasoned: “The location of the servient tenement on
‘grantor’s lands’ [sic] obviously cannot be determined by a physical inspection
of the property. Nor does the Blanket Easement appear in the chain of title
to Defendants’ property.”
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the easement. 4 DRD appeals claiming that it was entitled to summary judgment
declaring that the Blanket Easement burdened Flickemas’ and PSC’s properties.
Decision
[¶10.] This Court’s standard of review on summary judgment is well-settled:
Our standard of review on summary judgment requires this
Court to determine whether the moving party has
demonstrated the absence of any genuine issue of material fact
and entitlement to judgment on the merits as a matter of law.
The circuit court’s conclusions of law are reviewed de novo.
However, all facts and favorable inferences from those facts
must be viewed in a light most favorable to the nonmoving
party. We will affirm the circuit court’s ruling on a motion for
summary judgment when any basis exists to support its ruling.
United Bldg. Centers v. Ochs, 2010 S.D. 30, ¶ 10, 781 N.W.2d 79, 82.
4. Bernardy v. Colonial & U. S. Mortgage Co., 17 S.D. 637, 648-49, 98 N.W. 166,
169 (1904), and Fullerton Lumber Co. v. Tinker, 22 S.D. 427, 430-32, 118
N.W. 700, 702-03 (1908), suggest that the Blanket Easement was within
Flickemas’ and PSC’s chain of title and they were on notice of the existence of
the Blanket Easement. In Bernardy, this Court stated that conveyances in a
person’s chain of title are conveyances made by parties under whom the
person claims title. 17 S.D. at 649, 98 N.W. at 169. “[A] purchaser of
property is necessarily charged with notice of all [recorded] conveyances or
mortgages made by the party under whom he claims.” Id. at 648, 98 N.W. at
169. The recorded Blanket Easement was conveyed by Dakota Resorts, a
party under whom Flickemas and PSC claimed title.
In Fullerton Lumber, this Court held that a purchaser has constructive
notice of all instruments recorded in either the “indexes of grantors and
grantees, mortgagors and mortgagees, in [the purchaser’s] chain of title” or
the numerical index describing the purchaser’s property. 22 S.D. at 430-32,
118 N.W. at 702-03. See also Lunstra v. Century 21 GKR-Lammers Realtors,
442 N.W.2d 448, 450 (S.D. 1989). The record indicates that the Blanket
Easement was recorded in the Lawrence County Register of Deed’s grantor-
grantee index. Therefore, Fullerton Lumber and Bernardy suggest that the
Blanket Easement was in Flickemas’ and PSC’s chain of title, and they were
charged with notice of its existence. See SDCL §§ 43-25-3, 43-25-12, 43-28-
15, 43-28-17 (statutes on recording, good faith purchasers, and constructive
notice).
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[¶11.] DRD argues that Flickemas had “express information of the Blanket
Easement” through the title insurance commitment, which included a copy of the
easement and listed it as a special exception. DRD argues that PSC had actual
knowledge because Dr. Cink received a copy of the Blanket Easement in connection
with the purchase of Lot 9 (another Non-Emery property in the Aventure
subdivision). Alternatively, DRD contends that Flickemas and PSC had
constructive knowledge through the easement itself (Flickemas’ title commitment)
and through PSC’s agency relationship with its realtor who knew of the easement.
DRD claims that with constructive knowledge, Flickemas and PSC were burdened
with a duty of inquiry, and a diligent inquiry would have disclosed “the existence” of
the easement.
[¶12.] Flickemas and PSC argue that they were good faith purchasers of Lots
5 and 6 without notice of the Blanket Easement. They contend that because the
Blanket Easement did not appear on their final title insurance commitments or on
any deeds within their chain of title, they did not have notice that the Blanket
Easement burdened their properties. They also argue that any constructive
knowledge they had of the existence of the Blanket Easement was irrelevant
because they made a reasonable inquiry and were presented with information from
the title company leading them to believe the easement did not burden their
properties. 5
5. Flickemas and PSC rely on the rule stated in Betts v. Letcher, 1 S.D. 182,
193-94, 46 N.W. 193, 196-97 (1890) (indicating that “[n]otice of a prior
unrecorded conveyance, or of any title, legal or equitable, to the premises, or
knowledge and notice of any facts which would put a prudent person upon
(continued . . .)
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[¶13.] To resolve this appeal, it is necessary to highlight DRD’s specific
argument. DRD contends Flickemas and PSC knew the Blanket Easement
expressly provided “that there was an easement for the benefit of Emery number 4
and Emery number 5.” But it may be assumed without deciding that Flickemas and
PSC had knowledge of the existence of the Blanket Easement benefiting Emery
Nos. 4 and 5. The pertinent question is: What knowledge did that easement convey
regarding the purported servient tenement, Lots 5 and 6? Because the Blanket
Easement legally described Emery Nos. 4 and 5 as the dominant tenement while
only describing the servient tenement as “grantor’s land,” the public record only
disclosed that an easement on some undisclosed land, which Dakota Resorts once
owned, benefited Emery Nos. 4 and 5. Obviously, knowing that some undescribed
Blanket Easement benefited Emery Nos. 4 and 5 does not support DRD’s contention
that Flickemas and PSC had knowledge that the easement burdened Lots 5 and 6.
To impute such knowledge, the Blanket Easement must have contained some
property description or reference suggesting Flickemas’ and PSC’s properties were
burdened by the easement.
[¶14.] With respect to what knowledge the Blanket Easement conveyed, DRD
argues that the Blanket Easement’s reference to the servient tenement as “grantor’s
________________________
(. . . continued)
inquiry, impeaches the good faith of the subsequent purchaser”; however,
“presumptive notice from possession, like that arising from any other fact
putting one upon inquiry, is subject to rebuttal by proof showing that an
inquiry, duly and reasonably made, failed to disclose any legal or equitable
title in the occupant”). See also Williamson v. Brown, 15 N.Y. 354 (1857)
(stating that party who makes a reasonable inquiry but fails to discover an
unrecorded conveyance will be protected). This rule, however, only applies to
unrecorded instruments.
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land” put Flickemas and PSC on constructive notice demanding “a prudent
investigation into the extent of grantor’s land such that they could provide an
easement for ingress and egress to Emery number 4 and Emery number 5.” DRD
contends that an investigation of the public records would have disclosed that the
Blanket Easement burdened Lots 5 and 6 because Dakota Resorts, the easement’s
grantor, at one time owned the Non-Emery Properties, and before the Aventure
subdevelopment, Lots 5 and 6 were a part of the Non-Emery Properties. DRD also
relies on the circuit court’s initial ruling that the Blanket Easement sufficiently
described the servient tenement.
[¶15.] DRD points out that the circuit court’s initial order regarding the
sufficiency of the servient tenement’s description has not been appealed by notice of
review and is therefore not subject to challenge by Flickemas or PSC. Although an
appellee may not generally raise issues on which it filed no notice of review,
Appellant DRD’s argument in this appeal incorporates the reasoning of that earlier
order. And, “[o]n appeal from a judgment the Supreme Court may review any order,
ruling, or determination of the trial court . . . involving the merits and necessarily
affecting the judgment and appearing upon the record.” SDCL 15-26A-7. See also
Lang v. Burns, 77 S.D. 626, 631, 97 N.W.2d 863, 866 (1959) (“On an appeal from a
judgment this [C]ourt may review intermediate orders [that] involve the merits and
necessarily affect the judgment appealed from.”)
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[¶16.] Additionally, under Federal Rule of Appellate Procedure 3(c)(1)(B), the
counterpart of SDCL 15-26A-4(1), 6 “an appeal from a final judgment preserves all
prior orders intertwined with the final judgment.” New York Life Ins. Co. v.
Deshotel, 142 F.3d 873, 884 (5th Cir. 1998) (quoting Trust Co. v. N.N.P. Inc., 104
F.3d 1478, 1485 (5th Cir. 1997)). “Ordinarily, a notice of appeal that specifies the
final judgment in a case should be understood to bring up for review all of the
previous rulings and orders that led up to and served as a predicate for that final
judgment.” Greer v. St. Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001)
(allowing appeal of final summary judgment order to include appeal of earlier
summary judgment order). See also Badger Pharmacal, Inc. v. Colgate-Palmolive
Co., 1 F.3d 621, 626 (7th Cir. 1993) (“Ordinarily, an appeal from a final judgment
brings up for review all previous orders entered in the case.”); United States v. One
1977 Mercedes-Benz, 708 F.2d 444, 451 (9th Cir. 1983) (stating appeal from final
judgment puts at issue all prior nonfinal orders and all rulings which produced the
final judgment). See generally 20 James Wm. Moore et al., Moore’s Federal Practice
§ 303.21[3][c][iii] (3d ed. 2010) (“An appeal from the final judgment usually draws
into question all prior nonfinal orders and all rulings which produced the
judgment.”).
[¶17.] In this case, the circuit court’s initial ruling and order led to and was
the predicate for the summary judgment now challenged by DRD. Without the
circuit court’s initial order ruling the description of the servient tenement sufficient,
6. Both rules require that a notice of appeal shall “designate the judgment,
order, or part thereof” being appealed. SDCL 15-26A-4(1); Fed. R. App. P.
3(c)(1)(B).
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the court would not have rendered the summary judgment DRD now appeals.
Moreover, DRD’s current arguments regarding actual and constructive notice
incorporate the reasoning of the circuit court’s initial order; i.e., that the legal
description in the Blanket Easement was sufficient to be effective against
subsequent purchasers. Indeed, DRD expressly relies on the circuit court’s initial
order. Because the initial order affects and involves the merits of the summary
judgment challenged by DRD, we review that initial order to determine whether the
Blanket Easement sufficiently described the servient tenement.
[¶18.] Many jurisdictions have considered the sufficiency of an easement
description necessary to burden a subsequent purchaser of property. Like South
Dakota, the Supreme Court of Washington requires a conveyance creating an
easement to comply with the statute of frauds. Berg v. Ting, 125 Wash.2d 544, 551,
886 P.2d 564, 568-69 (1995). 7 To comply with the statute of frauds, a conveyance
creating an easement must contain either 1) a description of the land sufficient to
locate the servient tenement or 2) a reference to another document which contains a
description sufficient to locate the servient tenement. Id. Although “‘a deed [of
easement] is not required to establish the actual location of an easement, [it] is
required to convey an easement’ which encumbrances a specific servient estate.
The servient estate must be sufficiently described.” Id. (emphasis added) (internal
citation omitted) (quoting Smith v. King, 620 P.2d 542, 543 (Wash. App. 1980)).
7. “An easement is an interest in land subject to the statute of frauds.” Vander
Heide v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 25, 736 N.W.2d 824, 833.
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[¶19.] The Supreme Court of New Mexico stated that “the description of real
estate in a deed inter partes is sufficient if it identifies the property intended to be
conveyed by it, or furnishes means or data which point to evidence that will identify
it.” Heron v. Ramsey, 45 N.M. 483, 117 P.2d 242, 246 (1941). The court
summarized the rules in various decisions, which included a decision by this Court,
concerning the sufficiency of real estate descriptions. A description is sufficient only
if:
“[T]he description furnish[es] the key to the identification of the
land intended to be conveyed,” Smith v. Fed[.] Land Bank, 181
Ga. 1, 181 S.E. 149, 150 [(1935)]; or if the description is “either
certain in itself, or capable of being reduced to certainty by a
reference to something extrinsic to which the deed refers,”
Buckhorn Land & T. Co. v. Yarbrough, 179 N.C. 335, 102 S.E.
630, 631 [(1920)]; or “if there appears therein enough [in the
description] to enable one, by pursuing an inquiry based upon
the information contained in the deed, to identify the particular
property to the exclusion of [all] others,” Coppard v. Glasscock,
[ ] 46 S.W.2d 298, 300 [(Tex. Com. App. 1932)]; or if the deed
itself furnishes “the means of identification,” Ault v. Clark, 62
Ind. App. 55, 112 N.E. 843, 845 [(1916)]; or if the description
“can be made certain [by] inquiries suggested by the description
given in such deed,” Ford v. Ford, 24 S.D. 644, 124 N.W. 1108[(1910)]; or the description in a deed must be sufficiently
certain to identify the land therefrom or furnish the means
with which to identify it, Hamilton v. Rudeen, 112 Or. 268, 224
P. 92 [(1924)].
Id. The same sufficiency-of-description rules that apply to descriptions in deeds,
apply to descriptions of easements. See Cummings v. Dosam, Inc., 273 N.C. 28, 33,
159 S.E.2d 513, 518 (1968).
[¶20.] The Massachusetts Supreme Court acknowledged the sufficiency-of-
description requirement when it struck down a conservation easement on grounds
of an insufficiently described servient tenement. Parkinson v. Bd. of Assessors of
Medfield, 395 Mass. 643, 645, 481 N.E.2d 491, 493 (1985). That easement
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prohibited construction on eighty-two acres of land yet allowed the use of “[o]ne
single-family residence with usual appurtenant outbuildings and structures.” Id. at
643-44, 481 N.E.2d at 492. The court found that the servient tenement was the
eighty-two acres minus an ambiguous amount of property required for the use of
the residence. Id. at 646, 481 N.E.2d at 493. Because nothing in the instrument
creating the easement identified the amount of property required for the residence,
the servient tenement was insufficiently described and invalid. Id. The
Massachusetts Supreme Court explained:
“While no particular words are necessary for the grant of an
easement, the instrument must identify with reasonable
certainty the easement created and the dominant and servient
tenements.” Dunlap Investors, Ltd. v. Hogan, 133 Ariz. 130,
132, 650 P.2d 432 (1982) [(]quoting Oliver v. Ernul, 277 N.C.
591, 597, 178 S.E.2d 393 (1971)[)]. Hynes v. Lakeland, 451
So.2d 505, 511 ([Fla. Dist. Ct. App.] 1984). Germany v.
Murdock, 99 N.M. 679, 681, 662 P.2d 1346 (1983). Vrabel v.
Donahoe Creek Watershed Auth., 545 S.W.2d 53, 54 ([Tex. Civ.
App.] 1976). See McHale v. Treworgy, 325 Mass. 381, 385, 90
N.E.2d 908 (1950). The instrument must be sufficiently precise
that “a surveyor can go upon the land and locate the easement.”
Vrabel[, 545 S.W.2d at 54]. If the instrument does not describe
the servient land with the precision required to render it
“capable of identification . . . the conveyance is absolute[ly]
nugatory.” McHale[, 325 Mass. at 385, 90 N.E.2d 908 at 911].
Allen v. Duvall, 311 N.C. 245, 249, 316 S.E.2d 267 (1984).
Id. at 645-46, 481 N.E.2d at 493.
[¶21.] The North Carolina Supreme Court has discussed the sufficiency of an
easement’s description in many cases. In Allen v. Duvall it explained:
When an easement is created by deed, either by express grant
or by reservation, the description thereof “must either be
certain in itself or capable of being reduced to a certainty by a
recurrence to something extrinsic to which it refers. . . . There
must be language in the deed sufficient to serve as a pointer or a
guide to the ascertainment of the location of the land.”
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311 N.C. 245, 249, 316 S.E.2d 267, 270 (1984) (quoting Thompson v. Umberger, 221
N.C. 178, 180, 19 S.E.2d 484, 485 (1942)). When an easement’s description is
patently ambiguous, the language is insufficient to identify the land with certainty,
and so the purported easement will be void. Id. “When . . . the ambiguity in the
description is not patent but latent—referring to something extrinsic by which
identification might be made—the reservation will not be held void for uncertainty.”
Id. at 251, 316 S.E.2d at 271.
[¶22.] The North Carolina Supreme Court later struck down a portion of an
easement remarkably analogous to the one we consider today. Cummings, 273 N.C.
at 34, 159 S.E.2d at 518. The North Carolina easement purported to burden land
identified as “this tract and adjoining tracts being acquired by Grantee.” Id. The
court upheld the validity of the easement on “this tract” because it was legally
described in the deed. Id. But the court invalidated the purported easement on
“adjoining tracts being acquired by Grantee” because the adjoining tracts were not
otherwise described. Id. The court pointed out that the language “adjoining tracts
being acquired by Grantee,” was patently ambiguous. Id. “‘The description must
identify the land, or it must refer to something that will identify it with certainty.’
The same principle applies to the description of the servient estate in a deed
granting an easement.” Id. at 33, 159 S.E.2d at 518 (quoting Deans v. Deans, 241
N.C. 1, 7, 84 S.E.2d 321, 325 (1954)).
[¶23.] Also like the case at bar, a Texas appellate court considered an
easement described as “111.0 acres, more or less, out of a 250.5 acre tract of land in
the Basil Durbin Survey.” Vrabel v. Donahoe Creek Watershed Auth., 545 S.W.2d
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53, 54 (Tex. Civ. App. 1977). The instrument did not describe the location of the 111
acre servient tenement, nor did the instrument reference another writing describing
the location of the 111 acre servient tenement. Id. The court concluded that the
description rendered the easement void as to third parties. Id. The court explained
that for an easement to be sufficiently described, “the description must be so
definite and certain upon the face of the instrument itself, or, in some writing
referred to, that the land can be identified with reasonable certainty.” Id. (citing
Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948)). In Matney, the court stated:
“Since the description, or the key thereto, must be found in the language of the
contract, the whole purpose of the statute of frauds would be frustrated if parol
proof were admissible to supply a description of land which the parties have omitted
from their writing. So, while a defect in description may be aided by the description
shown on a map, in such case the map must be referred to in the contract[.]” 147
Tex. at 31-32, 210 S.W.2d at 984 (quoting 1 Jones, Cyclopedia of Real Property Law
329).
[¶24.] The common denominator in these cases is that the conveying
instrument must either describe the servient tenement with certainty or make
reference to something else that makes the servient tenement identifiable with
certainty. South Dakota follows this view. In Ford v. Ford, this Court stated:
The office of a description in a deed is not to identify the lands,
but to furnish the means of identification, and that a
description is considered sufficiently certain which can be made
certain, and that a description in a deed would be deemed
sufficient if a person of ordinary prudence, acting in good faith
and making inquiries suggested by the description given in
such deed, would be enabled to identify the property.
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24 S.D. 644, 648, 124 N.W. 1108, 1110 (1910) (holding description of property in a
homestead conveyance sufficient to convey the property). 8
[¶25.] In Schlecht v. Hinrich, this Court again required a real estate
description to furnish means to identify the property. 50 S.D. 360, 363, 210 N.W.
192, 193 (1926). This Court stated, “A description of property in a chattel mortgage
is sufficient where it will enable a third person, aided by inquiries which the
instrument itself suggests, to identify the property.” Id. (emphasis added) (holding
that a misleading property description was sufficient to put third parties on notice
of a mortgage).
[¶26.] In DRD’s Blanket Easement, the only identifying words in the
description are “grantor’s land.” These two words do not suggest any point of
reference by which one could identify the specific property burdened. See Ford, 24
S.D. at 648, 124 N.W. at 1110; Schlecht, 50 S.D. at 363, 210 N.W. at 193. “Grantor’s
land” certainly does not itself, or by reference to an outside aid, identify the
burdened land with certainty. See Cummings, 273 N.C. at 33, 159 S.E.2d at 518;
Vrabel, 545 S.W.2d at 54. The broad description “grantor’s land” is insufficient to
create an easement under the analogous descriptions considered in Cummings, 273
N.C. 28, 159 S.E.2d 513, and Vrabel, 545 S.W.2d 53. Indeed, “grantor’s land” could
8. DRD’s Blanket Easement described the purported servient tenement only as
“grantor’s land.” The easement did not give a description or even suggest a
nonlegal, commonly understood point of reference like in Ford, where the
conveyance described the land as being “situated on Belle Fourche [R]iver,
Butte [C]ounty” and “commonly known as the headquarters of Ford Bros.
Cattle Company on Belle Fourche [R]iver, Butte [C]ounty.” Id. at 646, 124
N.W. at 1109.
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have included any property that was owned by Dakota Resorts in the vicinity of
Emery Nos. 4 and 5 on February 16, 2000. Contrary to the circuit court’s opinion,
there is certainly nothing in the language of the purported easement suggesting
that the burdened land was located between Emery Nos. 4 and 5 and “Terry Peak
Summit Road,” the latter descriptor being parole evidence not mentioned in the
Blanket Easement. 9
[¶27.] We conclude that the words “grantor’s land” are not by themselves
“sufficient to serve as a pointer or a guide to the ascertainment of the location of the
land.” See Thompson, 221 N.C. at 180, 19 S.E.2d at 485. This non-descriptive
language, neither describes the land sufficiently enough to locate the servient
tenement nor references another document which does so. See Berg, 125 Wash.2d
at 551, 886 P.2d at 569. The description furnishes no means or data pointing to
evidence that identifies the servient tenement. See Heron, 117 P.2d at 246. It
clearly does not enable a person to identify what lots in Aventure’s
subdevelopment—to the exclusion of all other lots—are burdened as the servient
tenement. See Coppard v. Glasscock, 46 S.W.2d 298, 300 (Tex. Com. App. 1932).
The description was inadequate to give notice or be legally effective as to Flickemas
and PSC.
9. There is no Terry Peak Summit Road reference in the easement. Therefore,
there is nothing in the easement limiting “grantor’s land” to a location
between Emery Nos. 4 and 5 and Terry Peak Summit Road. The sole
reference to Emery Nos. 4 and 5 and “grantor’s land” means that the servient
tenement could have included any land Dakota Resorts may have owned that
was contiguous to Emery Nos. 4 and 5 at any location.
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[¶28.] “Although we may not agree with the rationale of the circuit court, we
will uphold summary judgment if there is a valid basis to do so.” Hoekman v.
Nelson, 2000 S.D. 99, ¶ 6, 614 N.W.2d 821, 823. “[A] trial court may still be upheld
if it reached the right result for the wrong reason.” Schmiedt v. Loewen, 2010 S.D.
76, ¶ 20 n.3, 789 N.W.2d 312, 318 n.3 (quoting Flugge v. Flugge, 2004 S.D. 76, ¶ 35,
681 N.W.2d 837, 846). Because the Blanket Easement was insufficient to create an
easement burdening Flickemas’ Lot 5 or PSC’s Lot 6, the circuit court’s judgment is
affirmed.
[¶29.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY
and SEVERSON, Justices, concur.
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