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Niemi v. Fredlund Twp.

Supreme Court of South Dakota

July 15, 2015

DAVID NIEMI and ROXIE ANNE NIEMI, Plaintiffs and Appellants,
v.
FREDLUND TOWNSHIP, and STATE OF SOUTH DAKOTA, by and through its Office of School and Public Lands, Defendants and Appellees, and JERRY REISENAUER and RIATA HILLS LLC, Defendants, Third-Party Plaintiffs and Appellees,
v.
RON DRAGOO, TRUSTEE OF THE M.L. DRAGOO 6/16/2003 REVOCABLE TRUST, Third-Party Defendant

Considered on Briefs May 26, 2015.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT PERKINS COUNTY, SOUTH DAKOTA. THE HONORABLE RANDALL L. MACY, Judge.

BRADLEY P. GORDON, TIMOTHY J. VANDER HEIDE of Barker Wilson Law Firm, LLP, Belle Fourche, South Dakota, Attorneys for plaintiffs and appellants.

ERIC H. BOGUE of Bogue & Bogue, LLP, Faith, South Dakota, Attorneys for defendant and appellee Fredlund Township.

MARTY J. JACKLEY, Attorney General, RICHARD M. WILLIAMS, MATTHEW E. NAASZ, Assistant Attorneys General, Pierre, South Dakota, Attorneys for defendant and appellee State of South Dakota, by and through its Office of School and Public Lands.

DWIGHT A. GUBBRUD, KELLEN WILLERT of Bennett, Main & Gubbrud, PC, Belle Fourche, South Dakota, Attorneys for defendants, third-party plaintiffs and appellees Jerry Reisenauer and Riata Hills LLC.

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

OPINION

Page 726

KERN, Justice

[¶1] Landowners filed a declaratory judgment action seeking a determination that the road traversing their property is not a road open to the public. After a court trial, the circuit court held that the landowners and their predecessors in interest had dedicated the road to the public by implication. The landowners appeal. We affirm.

BACKGROUND

[¶2] This case involves a dispute over a road located on real property owned by David and Roxie Niemi in Fredlund Township, Perkins County, South Dakota. For the last 100 years, the road has been referred to as the " Lewton Road." The Lewton family homesteaded the area and used

Page 727

to live at a residence at the end of the road, commonly known as the " Lewton Place." It was reported that Lewton Road was the only means of access to Lewton Place.

[¶3] In March 2012, the Niemis brought suit in circuit court against Fredlund Township. The Niemis sought a declaratory judgment that the portion of Lewton Road that traverses their property is not a public road. The Niemis submitted that they brought suit because the Township had been operating as if Lewton Road was a public road. The Township filed an answer denying the Niemis' claim. The owners of land accessible by Lewton Road--Jerry Reisenauer, Riata Hills LLC, and the South Dakota Office of School and Public Lands--filed separate motions to intervene. After the court granted their motions, Reisenauer, Riata Hills, and the Office of School and Public Lands each filed separate counterclaims requesting a declaratory ruling that Lewton Road is a public road, or in the alternative, that they are entitled to an easement by prescription. Reisenauer and Riata Hills also filed a third-party complaint against Ron Dragoo as the trustee of the M.L. Dragoo Revocable Trust. The Dragoo family originally owned the property. The Niemis are purchasing the property from the Dragoo Trust under a contract for deed. A default judgment was subsequently entered against the Dragoo Trust for its failure to appear.

[¶4] A court trial was held on February 25 and 26, 2014. A number of witnesses testified regarding the historical origin of Lewton Road and to the actions of the Township in relation to Lewton Road. Jim LeFebre, who was age 75 at the time of the trial, testified that his grandfather Albert Fredlund was the area's first homesteader in 1900 and that the Township was named after him. LeFebre, a lifelong resident of the Township, has served as the clerk for the Township Board since 1963. He submitted that he was familiar with Lewton Road and the property owned by the Niemis, which is now known as Section 20. According to LeFebre, O.F. Dragoo homesteaded the land that includes Section 20. At some point, O.F. Dragoo transferred his interest in Section 20 to his son, Edgar Dragoo. LeFebre relayed that Edgar was the clerk of the Township Board of Supervisors from 1939 to 1962. When Edgar passed away, LeFebre became the clerk. As clerk, LeFebre was charged with the duty of recording the minutes of the Township's meetings in the Township books. He explained that the Township meeting occurred once a year and primarily concerned Township roads.

[¶5] LeFebre described Lewton Road and the land it traverses. Lewton Road begins off Highway 75 and travels south and west across Section 20, Section 30, and into Section 31, where it ends at the old Lewton Place, just north of the South Grand River. LeFebre testified that Lewton Dam is located in Section 19, just outside Section 20, and is accessed by Lewton Road. When he was a child, LeFebre's parents would take him and his siblings to the dam to ice skate in the winter. LeFebre indicated that people continue to access Lewton Dam by Lewton Road. Prior to 1943, the Fredlund School was located off Lewton Road and, according to LeFebre, Lewton Road provided the only access to the school. In 1943, the school was moved to Section 16.

[¶6] LeFebre also summarized the work historically done by the Township on Lewton Road. LeFebre referred to Township meeting minutes from 1927, which indicated that O.F. Dragoo had made a motion to have Mr. Lewton repair the bridge near the Fredlund School and by Lewton Dam. The motion was seconded by

Page 728

Mr. Lewton, who was also on the Township board at the time. The Township paid for the repairs. LeFebre further testified that in 1958, Mrs. Lewton wrote to the Township and requested that the Township " grade and fix up the mile of road between my mailbox and the dam." The letter was addressed to LeFebre's father, who was the Township Board Supervisor at the time. LeFebre explained that Mrs. Lewton's mailbox was located on Highway 75. On the back of Mrs. Lewton's letter were notations indicating the expected cost of the project: $400 for grading and $300 for graveling. LeFebre also ...


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