FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA THE HONORABLE MICHELLE K. COMER
GREGORY J. BERNARD of Thomas Braun Bernard & Burke, LLP
Rapid City, South Dakota Attorneys for plaintiffs and
R. FREDERICKSON Deadwood, South Dakota Attorney for
defendants and appellees William and Carol Davis.
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.
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.
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.
"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
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.
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 ...