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Chicoine v. Davis

Supreme Court of South Dakota

October 25, 2017

NOEL CHICOINE and TERESA CHICOINE, Plaintiffs and Appellants,
v.
WILLIAM DAVIS and CAROL DAVIS, Defendants and Appellees, and GREG PEARSON and PAMELA PEARSON as TRUSTEES OF PAMELA G. PEARSON REVOCABLE TRUST, JAMES HALLING, DEBRA HALLING, JAMES BRUNDISH, KEVIN FETERL and JANET FETERL, Defendants.

         APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER Judge

          GREGORY J. BERNARD of Thomas Braun Bernard & Burke, LLP Rapid City, South Dakota Attorneys for plaintiffs and appellants.

          JOHN R. FREDERICKSON Deadwood, South Dakota Attorney for defendants and appellees William and Carol Davis.

          SEVERSON, Justice

         [¶1.] Noel and Teresa Chicoine (the Chicoines) commenced this action asking that the circuit court declare that they have an access easement across Mineral Survey 1758 (M.S. 1758) into the adjoining Mineral Survey 1794. The circuit court found that no easement exists, either by grant or prescription. The Chicoines appeal the circuit court's determination, asserting that a public right-of-way exists across M.S. 1758 by grant. They do not appeal the denial of a prescriptive easement. We affirm.

         Background

         [¶2.] The Chicoine own real property within M.S. 1794 (a/k/a Clondyke subdivision). The Chicoines own lot 4 within the Clondyke subdivision. Lot 1 of the Clondyke subdivision shares a border with Mineral Survey 1758 and is north of the Chicoines' property. Five lodes comprise M.S. 1758: Lillah Fraction, Truro, Red Coat, Monday, and Red. Defendants William and Carol Davis own the Monday and Red Coat lodes. As the circuit court found below, a primitive road enters M.S. 1758 on the Lillah Fraction lode to the north and traverses southward across each lode. As the road traverses further south across the lodes, it becomes more primitive and overgrown. This is the road over which the Chicoines claim a right of way. Two relevant maps (Exhibits 2 and 33) are roughly combined below for reference. The map of M.S. 1758 is a surveyor drawing; the map of the Clondyke subdivision is a plat map. No plat of M.S. 1758 was entered into evidence.

         (Image Omitted)

         [¶3.] The Chicoines' complaint alleged that they have an easement over the road, either by way of prescription or through the various plats and deeds to the Clondyke subdivision and M.S. 1758. The circuit court determined that the Chicoines do not have a prescriptive easement and that the road across M.S. 1758 is private. On appeal to this Court, the Chicoines do not challenge the circuit court's determination that no prescriptive easement exists. Instead, they claim that the M.S. 1758 conveyances preserve a public right of way on the existing road.

         Standard of Review

         [¶4.] "Construction of a deed is a question of law." Swaby v. N. Hills Reg'l R.R. Auth., 2009 S.D. 57, ¶ 22, 769 N.W.2d 798, 808. "We examine the instrument as a whole to determine what type of conveyance was intended." Id. (quoting Tripp v. F & K Assam Family, LLC, 2008 S.D. 78, ¶ 9, 755 N.W.2d 106, 109). "If the language of a deed leaves doubt on the intention of the parties, we will consider all the attendant circumstances existing at the time of execution." Id.

         Analysis

         [¶5.] In 1995, a group of grantors owned all of M.S. 1758 and conveyed it to James Peterson and Gail Peterson as tenants in common. The warranty deed to the Petersons stated that the property was "[s]ubject to a statutory easement for a 66' road right of way along section line bounding or within the land herein described." Over the years, James Peterson conveyed the lodes to others.

         [¶6.] In 1996, James Peterson entered into a purchase agreement with William and Carol Davis for the purchase of the Monday lode. The agreement provided in section 33 that "[e]asements for road right-of-way will be 66' wide. (Not road surface)" and in section 36 that "Buyers give Seller the right-of-way across Monday to Red for road and utilities in the approximate location of the present dirt road. Seller will provide a gravel access drive approximately 10' wide (width of vehicle) from the approximate north boundary of M.S. 1758 to the north boundary of ...


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