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Busselman v. Egge

Supreme Court of South Dakota

May 27, 2015

GARY BUSSELMAN, Plaintiff and Appellee,
v.
TODD D. EGGE and JOANNE K. EGGE, Defendants and Appellants

Considered on Briefs March 23, 2015.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE PATRICIA C. RIEPEL, Judge.

TODD V. MEIERHENRY, CHRISTOPHER HEALY of Meierhenry Sargent LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.

STEVEN W. SANFORD, ERIC J. CLEVERINGA of Cadwell Sanford Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellants.

ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.

OPINION

ZINTER, Justice

[¶1] Todd and Joanne Egge placed obstructions on a platted but unimproved service road. Gary Busselman sued Egges, contending that the service road was open to public travel because it had been dedicated and accepted by the City of Sioux Falls and Minnehaha County. The circuit court agreed, and it granted summary

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judgment in favor of Busselman. On appeal, Egges do not argue the merits of the dedication/acceptance question. The sole issue is whether the circuit court erred in failing to require joinder of an indispensable party; i.e. the appropriate governmental entity responsible for acceptance of the purported dedication. We reverse and remand for joinder of the appropriate governmental entity.

Facts and Procedural History

[¶2] Egges and Busselman own adjoining property in Split Rock Township southeast of Sioux Falls. Egges own " Lot 1." Egges constructed a building for their business on the lot. They also constructed a fence, a monument, and a sign north of their building. There was some dispute in the proceedings below whether all of these improvements were on their lot, but there is no dispute that some of the improvements are on a platted but unimproved service road north of their property.

[¶3] Busselman owns " Lot 2," which adjoins Lot 1 to the west. Highway 42 (now known as Arrowhead Parkway) is north of Lot 1, Lot 2, and the platted service road. Busselman did not have direct access to Highway 42 from Lot 2. Busselman attempted to obtain direct access in 1998, but the Department of Transportation denied his request to build an approach. Busselman then attempted to obtain access via the unimproved service road that was described in a 1979 plat. Some or all of Egges' improvements are located within and obstruct the service road.

[¶4] Busselman sued Egges for damages and an injunction to prevent Egges' obstruction of the service road. The 1979 plat contains language dedicating " the streets, roads, and alleys, if any, as shown and marked on said plat." The parties disputed whether that language was sufficient to constitute a dedication. Egges also contended that there was no governmental acceptance of any purported dedication. They conceded that the Sioux Falls City Commission (City) " approved" the plat by resolution, but they contend the City did not " accept" the dedication.[1] Therefore, they argued that there was no public right-of-way to obstruct.[2] Busselman argued that the service road had been dedicated and accepted. On cross-motions for summary judgment, the circuit court concluded that there was dedication and acceptance. Therefore, the court concluded that the service road ...


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