Tonsager v. Laqua

#24602-rev & rem-JKK
2008 SD 54IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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KENNETH M. TONSAGER, SR. and
DARLENE M. TONSAGER, Plaintiffs and Appellants,
v.
DAVID LEROY LAQUA, Defendant and Appellee,
WALL LAKE SANITARY DISTRICT, Third Party Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE KATHLEEN K. CALDWELL
Judge
* * * *
MICHAEL E. UNKE of
Unke Law Office Attorney for plaintiffs
Salem, South Dakota and appellants.
JENNIFER L. LARSEN of
Hagen, Wilka & Archer, PC Attorneys for defendant and
Sioux Falls, South Dakota appellee David Laqua.
PAUL H. LINDE of Attorneys for defendant and
Schaffer Law Office, Prof., LLC appellee Wall Lake Sanitary
Sioux Falls, South Dakota District.
* * * *
CONSIDERED ON BRIEFS
ON JANUARY 7, 2008
OPINION FILED 06/25/08
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KONENKAMP, Justice
[¶1.] This is a dispute between adjoining landowners on the extent and
meaning of an easement granted to a sanitary sewer district. The circuit court
concluded that the easement was private, and therefore, the neighboring landowner
could not access the public sewer system through the adjoining landowner’s
property. Because the easement was granted to a sanitary sewer district, a
governmental entity, and the district clearly accepted the grant by its use of the
sewer facilities, the court erred in declaring the easement private. We reverse and
remand.
Background
[¶2.] Kenneth, Sr. and Darlene Tonsager (plaintiffs) brought suit against
their neighbor David Laqua (defendant), seeking a permanent injunction and
damages for covenant and easement violations. Defendant counterclaimed for a
permanent injunction and damages on allegations that plaintiffs’ sewer pipes
passed under his property without his permission and without an easement
allowing the encroachment. Both properties are served by a centralized sanitary
sewer system, owned and maintained by the Wall Lake Sanitary District. Just
inside defendant’s lot line there is a sewer lift station dedicated to the Sanitary
District. When plaintiffs bought their property in 1998, plaintiffs’ sewer line was
connected to that lift station, as required by the Sanitary District. Defendant
acquired his property in 2004 from his father, who purchased it from Donald E.
Larson, the owner who executed the easement in question.
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[¶3.] Plaintiffs responded to defendant’s counterclaim by bringing a third-
party complaint against Wall Lake. They asserted that Wall Lake was liable for
any damages plaintiffs suffered as a result of Wall Lake’s failure to obtain the
proper easement for the sewer lines. Wall Lake moved for summary judgment on
plaintiffs’ third-party complaint, contending that plaintiffs failed to provide notice
as required by SDCL 3-21-2, the statute of limitations had expired, and sovereign
immunity barred the suit. All parties moved for summary judgment.
[¶4.] In its grant of summary judgment to defendant on his counterclaim,
the court ruled: “I find that the easement granted to Wall Lake is an easement in
gross. There is no language in the easement dedicating the easement to public use
and it can be inferred that [defendant] did not intend and would not want this
easement to Wall Lake to be extended to the public at large.” In so holding, the
court concluded that only a private easement existed. Plaintiffs were ordered to
immediately disconnect and remove all sewer piping on defendant’s property. As to
Wall Lake’s motion, the circuit court granted summary judgment against plaintiffs
for all the reasons asserted by Wall Lake. Plaintiffs appeal both grants of summary
judgment. 1 Because we conclude that the court erred in granting summary
judgment to defendant, the summary judgment for Wall Lake becomes moot.
1. Under our familiar standard, “[w]hen reviewing a grant of summary
judgment, we decide only whether there were genuine issues of material fact
and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98,
¶19, 704 NW2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza
Condominiums Ass’n v. Eastep, 2004 SD 28, ¶8, 676 NW2d 842, 846). “We
view the evidence in a light most favorable to the nonmoving party.” Toben
v. Jeske, 2006 SD 57, ¶9, 718 NW2d 32, 35 (citing Wilson v. Great Northern
R.R. Co., 83 SD 207, 212, 157 NW2d 19, 21 (1968)). The moving party has
(continued . . .)
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Analysis and Decision
[¶5.] Plaintiffs assert error in the circuit court’s decision to grant summary
judgment on defendant’s sewer line counterclaim. According to plaintiffs, the Wall
Lake easement unambiguously dedicates defendant’s property to the public. They
point out that Larson, the previous owner of defendant’s property, “knew that two
other property owners would connect” to the sewer line on his property. Plaintiffs
also argue that because the easement’s purpose is for Wall Lake to construct and
maintain sewer facilities for the benefit of multiple users, “the nature of the
enjoyment by which [the easement] was acquired” gives them the right to cross
defendant’s property to connect to those facilities. 2 See SDCL 43-13-5. Wall Lake
Sanitary District joins in plaintiffs’ position, noting that “the trial court’s order
essentially prevents Wall Lake from providing access to a necessary sewer system.”
[¶6.] An easement’s extent must be ascertained from the document itself: if
its words are plain and unambiguous, “the matter is concluded.’” Salmon v.
Bradshaw, 84 SD 500, 505-06, 173 NW2d 281, 284 (1969) (citation omitted). “The
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(. . . continued)
the burden of showing “the absence of any genuine issue of material fact and
entitlement to judgment as a matter of law.” Yarcheski v. Reiner, 2003 SD
108, ¶15, 669 NW2d 487, 493 (citing S.D. Dept. of Rev. v. Thiewes, 448 NW2d
1, 2 (SD 1989)).
2. As further proof for the existence of a public dedication, plaintiffs point to the
plat filed by defendant with the Minnehaha Register of Deeds office. This
plat was only submitted by plaintiffs after the court granted summary
judgment against them, when they moved for reconsideration. The court
denied the motion. Defendant objects to our consideration of this plat
because it was not considered by the circuit court. In keeping with our long-
standing policy, we will not accept evidence not considered by the circuit
court.
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terms of the grant, as they can be learned either by words clearly expressed, or by
just and sound construction, will regulate and measure the rights of the grantee.”
Id. (citation omitted). When the terms are “clear, definite and unambiguous” it is
“unnecessary to resort to extrinsic facts or circumstances to determine its meaning
or extent.” Id.[¶7.] In support of his motion for summary judgment, defendant submitted
an affidavit stating, “At no time have I granted an easement for the public use of
the sewer facilities located on my property, and have no knowledge that any prior
owner of my property has granted an easement dedicated to the public use for such
purposes.” In 1991, however, the prior owner of defendant’s property, Donald E.
Larson, executed a “Sewer System Easement,” which states in part:
GRANTOR, hereby grant [sic] to the Wall Lake Sanitary
District, . . . a permanent easement for the purpose of surveying,
locating, staking, constructing, installing, maintaining and
inspecting sewer lines, manholes, cleanouts, pump vaults, valves
and other facilities related thereto over, under, across and
through the following described real property in Minnehaha
County, South Dakota . . . together with the right of ingress and
egress over such lands and any adjacent lands owned by
GRANTOR, his successors and assigns for the purposes of this
easement.
...
The rights, conditions and provisions of this easement shall
inure to the benefit of, and is binding upon, the heirs, successors
and assigns of the parties hereto and shall constitute a covenant
running with the land for the perpetual benefit of the
GRANTEE, its successors and assigns.3
3. This document was prepared by the engineering firm of DeWild Grant
Reckert and Associates Company of Rock Rapids, Iowa, presumably on behalf
of the Sanitary District.
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From reading this document, our question is whether a plain reading or a “just and
sound” construction will render this easement a public dedication.
[¶8.] Wall Lake Sanitary District is a political subdivision incorporated
expressly to provide a sewage system for the residents of its district. See SDCL
34A-5-1; SDCL 34A-5-14; SDCL 34A-5-26(4). Although the word “public” cannot be
found in the easement, the language of this document clearly grants a “perpetual”
easement to a public entity. Binding on the grantor’s “heirs, successors and
assigns,” the easement is specifically for “constructing, installing, maintaining and
inspecting sewer lines, manholes, clean outs, pump vaults, valves and other
facilities thereto over, under, across and through” defendant’s property.
[¶9.] An easement may be dedicated to public use if the owner clearly acts to
so dedicate it and the public entity accepts the dedication. Tinaglia v. Ittzes, 257
NW2d 724, 728-29 (SD 1977) (citations omitted); see also Bergin v. Bistodeau, 2002
SD 53, ¶¶15-17, 645 NW2d 252, 255-56. Defendant concedes that in certain
circumstances, when the grantee of an easement is a public entity, such easement
may grant rights to public use. 4 Nonetheless, defendant contends that a dedication
to public use was not plainly manifested in this easement. But this Court has long
recognized “the universal rule of law that no particular form of dedication is
necessary[;] if the same is in writing, no particular wording is necessary.” City of
Watertown v. Troeh, 25 SD 21, 125 NW 501, 503 (1910) (citation omitted).
4. SDCL 34A-5-14 provides: “Such sanitary district, created and established
under this chapter, shall be a governmental subdivision of this state and a
public body, corporate and politic.”
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Moreover, as Justice Whiting wrote in Troeh, “the intent to dedicate may be shown
by the use of the land in question.” Id. (citing Mason v. City of Sioux Falls, 2 SD
640, 51 NW 770 (1892). While the grantor of the easement, Larson, still owned the
property defendant now occupies, plaintiffs hooked their sewer pipe to the lift
station on Larson’s land. 5
[¶10.] Still, defendant persists that Wall Lake Sanitary District never
accepted the public dedication of the easement. Although a minority of courts have
required a formal acceptance, the “well-bedded” rule, acknowledged in South
Dakota for almost a century, is that “if the principals have, by their conduct,
accepted the dedication, it is of no great importance that the agents have taken no
action in the matter.” Id. No one questions that Wall Lake has continued to use
the sewer lines and facilities here since the easement was granted.
[¶11.] To accept defendant’s claim that this “easement is for the benefit of
the Sanitary District only” is to forsake the very reason the sanitary district exists
— for the benefit of its residents. See SDCL 34A-5-1. The circuit court erred as a
matter of law in granting summary judgment to defendant on his sewer pipe
counterclaim. We remand for entry of an order of summary judgment for plaintiffs
on this issue.
5. See also Wildwood Ass’n v. Harley F. Taylor, Inc., 2003 SD 98, ¶16, 668
NW2d 296, 302:
A dedication may occur by express grant or by legal implication.
Brown v. Bd. of County Comm’rs for Pennington County, 422 NW2d
440, 442 (SD 1988) (citation omitted). A dedication is implied where “it
arises by operation of law from the owner’s conduct and the facts and
circumstances of the case.” Tinaglia v. Ittzes, 257 NW2d 724, 729 (SD
(continued . . .)
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[¶12.] Reversed and remanded.
[¶13.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and
MEIERHENRY, Justices, concur.
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(. . . continued)
1977) (quoting McQuillin, Municipal Corporations § 33.02 (3rd Rev
Ed)).
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