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Lammers v. State

Supreme Court of South Dakota

July 17, 2019

MICHAEL LAMMERS, Plaintiff and Appellant,
v.
STATE OF SOUTH DAKOTA, BY AND THROUGH THE DEPARTMENT OF GAME, FISH AND PARKS, Defendant and Appellee.

          CONSIDERED ON BRIEFS ON MAY 28, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT DEUEL COUNTY, SOUTH DAKOTA, THE HONORABLE DAWN M. ELSHERE Judge

          MARK V. MEIERHENRY CLINT SARGENT RALEIGH HANSMAN of Meierhenry Sargent, LLP Attorneys for plaintiff and appellant.

          JASON R. RAVNSBORG Attorney General DAVID M. MCVEY Assistant Attorney General Attorneys for defendant and appellee.

          KERN, JUSTICE

         [¶1.] South Dakota Game, Fish & Parks (Department) entered Michael Lammers's farmland in Deuel County to build a new fence after a survey indicated that the physical boundaries between their properties did not coincide with the surveyed boundaries. Lammers filed an action against the Department seeking a declaratory judgment and permanent injunction. The Department moved for summary judgment, which the circuit court granted. We affirm.

         Facts and Procedural History

         [¶2.] Lammers owns and farms two tracts of land in Section 16 of Altamont Township, Deuel County. Tract 1 comprises the north half of the southwest quarter and the southwest quarter of the southwest quarter of Section 16. Tract 2 is the southwest quarter of the southeast quarter. The northwest quarter of the southeast quarter of Section 16 is owned and maintained by the Department as a game production area.[1] It borders Tract 1 to the east and Tract 2 to the north.

         [¶3.] Altamont Township was first surveyed by the United States in 1872. In 1889, an Enabling Act passed by Congress admitted South Dakota to the Union and granted the State 3.5 million acres of land, including all of Section 16. Fred Rabine obtained Tract 1 through purchases from the State in 1947 and 1962. He obtained title to Tract 2 in 1960. Lammers began farming Tracts 1 and 2 for Rabine in 1992. He eventually purchased Tract 1 in 2005 and Tract 2 in 2012 from Rabine. The State granted the Department land within Section 16, including the land bordering Tracts 1 and 2, in 1962. The land currently owned and maintained by the Department has thus been continually held by the State or its agencies since the original grant from the United States in 1889.

         [¶4.] A north-south quarter line in the middle of Section 16 has been historically recognized by physical markers creating a "fence line." These markers include old growth trees, signs posted by the Department, and in recent years an electric fence. The boundaries are also marked by the differing uses of the land- with agricultural property separated from the game production area. In 2013, the Department retained Mack Land Surveying to conduct a new survey of Section 16 as part of a project to replace fences bordering State lands. Sometime in the spring of 2014, Lammers and other landowners were approached by Department officials informing them that according to the new survey, the existing boundaries were incorrect. In September 2016, Lammers received a letter from the Department informing him that a new north-south fence would be constructed that would move the border 107 feet west of the fence line to reflect the surveyed boundary, resulting in Lammers losing 2.5 acres from Tract 1 and 1 acre from Tract 2. Department officials entered the land previously farmed by Lammers to pound steel posts into the field to mark the surveyed boundary.

         [¶5.] On May 25, 2017, Lammers filed a complaint for a declaratory judgment and permanent injunction. Lammers requested that the court declare the boundary to be at the historical fence line. He further argued in his complaint that his "occupation and use of the property also satisfies the elements of the doctrine of adverse possession."[2] Pursuant to his request for a permanent injunction, Lammers demanded that the Department remove the steel fence posts.

         [¶6.] The Department filed a motion to dismiss, arguing that Lammers was essentially claiming that he had acquired land from the State through adverse possession and such claim was barred by Article VIII, section 10 of the South Dakota Constitution.[3] Following a hearing, the circuit court denied the motion to dismiss, finding that although the complaint read "a lot like a complaint for adverse possession," there were enough other points raised to indicate a question of fact regarding the location of the true boundary.

         [¶7.] The Department then moved for summary judgment. It first reiterated its argument that because the surveys indicated that these lands were in fact owned by the Department, there was no way Lammers could obtain these lands through adverse possession. Furthermore, it maintained that none of the surveys of Section 16 indicated that the north-south quarter line established in 1872 was consistent with the fence line. Lammers argued that a material issue of fact existed regarding the proper location of the boundaries in Section 16 since the original corner markers used to create the 1872 survey no longer existed. The original corner markers were charred oak stakes driven into dirt mounds. They have since been obliterated-meaning lost-so subsequent surveyors have used collateral evidence to locate the section corners. Lammers maintained that the historically recognized boundaries were the best available evidence of true boundaries. The parties submitted several key surveys into evidence, including the original 1872 survey, two surveys by Wayne Haug (one undated and one from 1996), the Mack survey from 2013, and an Aason Engineering survey from 2016.

         [¶8.] The circuit court heard oral argument from the parties at a hearing on September 24, 2018. It issued a memorandum opinion on September 27, 2018, granting summary judgment to the Department. The court concluded that Lammers's argument was based in part on a claim of adverse possession against the State which was precluded under the South Dakota Constitution. It also determined that the surveys, patents, and property descriptions showed that there was no genuine dispute of material fact regarding ...


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