#31234, #31235-a-MES 2026 S.D. 30
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
THOMAS LUZIER and MARCIA LUZIER, Plaintiffs and Appellants,
v.
ANDREW HEMMAH and JENNIFER HEMMAH, Defendants and Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY COUNTY, SOUTH DAKOTA
THE HONORABLE RICHARD A. SOMMERS Judge
REED RASMUSSEN of Siegel, Barnett & Schutz, LLP Aberdeen, South Dakota Attorneys for plaintiffs and appellants.
GORDON P. NIELSEN of Delaney, Nielsen & Sannes, P.C. Sisseton, South Dakota Attorneys for defendants and appellees.
CONSIDERED ON BRIEFS APRIL 21, 2026 OPINION FILED 05/13/26 #31234, #31235
SALTER, Justice
[¶1.] This case involves a property boundary dispute between two neighbors
who own lakefront property within the Ramona Beach subdivision on Pickerel Lake.
The plaintiffs, Thomas and Marsha Luzier,1 claim to have adversely possessed a
strip of land to which the defendants, Andrew and Jennifer Hemmah, hold record
title. Following a court trial, the circuit court denied the Luziers’ adverse
possession claim; it instead granted prescriptive easements for two garages that
encroach on the Hemmahs’ property within the contested area. The Luziers now
appeal, and the Hemmahs filed a notice of review. We affirm.
Factual and Procedural History
[¶2.] The Ramona Beach subdivision was originally platted in 1925. At the
time, no survey pins were set to mark the property lines within the subdivision, but
each lot’s width was uniformly established as fifty feet. A picture of the original
plat map is provided below.
1. As noted in the circuit court’s memorandum decision, Marsha Luzier passed away between the court trial and when the circuit court filed its memorandum decision. -1- #31234, #31235
[¶3.] The dispute in this case pertains to the property line between Lot 8
and Lot 9. In the above picture, Lot 9 is the rectangle highlighted in yellow, and
Lot 8 is the rectangle directly below it. In terms of cardinal directions, below would
also mean south.
[¶4.] Lot 8 was purchased by Harold and Bernice Webb in the early 1940s.
At the time, other members of the Webb family owned Lots 6 and 7. At some point
between 1947 and 1948, the Webbs built a driveway toward the west part—or the
“back” side—of Lot 8. Due to the contour of the land, the northern edge of the
driveway consists of a large rock retaining wall. Below are two contemporary
photos showing the driveway and rock wall from different angles. Both are oriented
to look east toward the lake. The photo on the left depicts a close-up of the rock
wall on the driveway’s north edge, and the photo on the right shows the driveway
itself.
[¶5.] Significant to the dispute in this appeal is the fact that the northern
edge of the rock wall is not coterminous with Lot 8’s northern property line. The
rock wall sits a fair distance south of the property boundary.
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[¶6.] Also important is the placement of what became the smaller of two
garages associated with Lot 9. In 1948, Ben Siebrecht, a past owner of Lot 9, moved
the property’s original cabin west and south from where it was first constructed to
make room for a new cabin that remains today. The original cabin was converted to
a garage and is situated in close proximity to Lot 8’s rock wall and driveway. The
back of the garage can be seen in the two photos above and, as it turned out,
extends beyond the property line and onto Lot 8.
[¶7.] Robert and Teri Johnson, the immediate predecessors of Thomas and
Marsha Luzier, purchased Lot 9 in 1979. Two years later, an additional plat was
prepared that added outlots on the west side (away from the lake) of each of the
existing lakefront lots within the Ramona Beach subdivision. Lot 5A was added to
the west end of Lot 8, and Lot 6A was added to the west end of Lot 9. Iron pipes
were placed to denote the boundary between Lots 5A and 6A.
[¶8.] The Johnsons received a quitclaim deed to Lot 6A in 1981. Years later,
in 1997, the Johnsons built a large garage on the southwest corner of Lot 6A. This
second garage extends over the property line dividing Lots 5A and 6A.
[¶9.] In 2002, the Webb family had another plat prepared in an effort to
turn Lots 7, 8, 5A, and a portion of Lot 4A into a separate addition to the Ramona
Beach subdivision. During a related survey, a pin was placed along the lakeside of
the lots indicating the property line separating Lot 8 from Lot 9. But the Webbs’
plan for the addition never came to fruition, and the plat map was never filed.
[¶10.] In 2005, Thomas and Marsha Luzier purchased Lots 6A and 9 from the
Johnsons. And in 2015, Andrew and Jennifer Hemmah bought Lots 5A and 8 from
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a family trust associated with Maurice Webb.2 Before purchasing the property, the
Hemmahs hired Helms & Associates to conduct a survey of Lots 6, 7, and 8 in 2014.
This survey showed the property line markers in the same location as the iron pipes
from the 1981 plat for the backlots and the lakeside pin that was set for the 2002
unrecorded plat. The 2014 survey also revealed that the original cabin-turned
garage, which came to be known as the small garage, on Lot 9 encroaches onto Lot 8
near the rock retaining wall and driveway. In addition, the survey showed the large
garage built in 1997 on Lot 6A encroaches onto Lot 5A. The Hemmahs did not
share this survey with the Luziers.
[¶11.] Initially, the Luziers and Hemmahs were friendly neighbors. The
Luziers’ son, Jonathan Fortner, would frequently bring his wife and children to the
lake house. The Fortners’ children would play with the Hemmahs’ children. And
over time, the two families became good friends with one another.
[¶12.] Unfortunately, circumstances changed in 2024 when the Hemmahs
applied for a variance that would allow them to build a garage on Lot 5A, near the
Luziers’ large garage. After receiving notice of the variance request, Jonathan
obtained copies of the request, the 2014 survey, and a construction estimate for the
new garage. The latter included the cost to demolish a retaining wall that runs off
the southeast corner of the Luziers’ large garage.
2. Following Harold Webb’s death, the Webbs’ land was divided evenly among their three children, Maurice E. Webb, Robert D. Webb, and Marcia W. Bailey. Around 2003, Maurice Webb ultimately bought out his other two siblings’ interests in Lot 8 to become the sole owner. -4- #31234, #31235
[¶13.] The Luziers opposed the demolition of the retaining wall and
commenced this adverse possession action for the stated purpose of stopping
construction of the Hemmahs’ proposed garage. In their complaint, the Luziers
claim to have acquired ownership of a substantial portion of Lot 8 and Lot 5A
through adverse possession. The portion of property claimed by the Luziers is
represented in the map below by a dashed line underneath the actual property line
and includes the location of the two encroaching garages.
[¶14.] The dashed “use of land line” begins at the left edge of Lot 5A, runs to
the corner of the angled retaining wall identified by the encircled 2, connects with
the rock wall of the driveway in Lot 8, and then runs at a slight angle from the top
right corner of the driveway rock wall to the lake retaining wall on the far right side
of the map. The disputed property at the center of this case involves all of the land
between this line and the thicker bold line that marks the actual property
boundary.
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[¶15.] In their answer, the Hemmahs denied the adverse possession
allegations and asserted a counterclaim for trespass, a request for a preliminary
injunction forbidding the Luziers from entering onto the disputed property, and a
request for the court to quiet title. In September 2024, the Luziers amended their
complaint to allege that the Hemmahs and their predecessors in interest had
acquiesced to the property boundary claimed by the Luziers.
[¶16.] After a hearing, the circuit court entered a preliminary injunction that
essentially maintained the status quo. The court’s order required the Hemmahs to
remove a string fence that they had placed along the property line, though the court
allowed the Hemmahs to keep the stakes associated with the temporary fence in
place; it allowed the Luziers to “make use of and mow an area the width of a push
mower south of the property line established by the 2014 Helms survey”; and it
forbade either party from doing any “dirt work, construction, removal of retaining
walls or sidewalks, or anything else that damages or changes the character of the
disputed area.”
[¶17.] A two-day court trial began in May 2025. The circuit court heard
testimony from Jonathan Fortner, Thomas and Marsha Luzier, as well as Jennifer
and Andrew Hemmah. The parties stipulated to the admission of deposition
testimony from the Luziers’ predecessors, Teri Johnson and her son Chris Johnson,
along with Robert Webb, whose parents owned Lot 8 and who now owns Lot 7, and
Robert’s son, Vincent Webb. The court also received into evidence the deposition of
Charles Dickhut, who is a professional engineer the Luziers hired to develop
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opinions about the purpose and effectiveness of earth anchors used to construct the
walls of the large garage that extend into Lot 5A.
[¶18.] In a subsequent written memorandum decision, the circuit court
denied the Luziers’ adverse possession claim. In the court’s view, the Luziers failed
to show the necessary elements of adverse possession by clear and convincing
evidence. The court ordered that “[t]he property lines between the parties[’]
respective properties are to remain consistent with the legal descriptions contained
within the parties’ recorded deeds and the recorded plats associated with said
properties.”
[¶19.] The circuit court did, however, determine that the Luziers had
established prescriptive easements for the two garages that encroach onto the
Hemmahs’ property. Notably, though, the Luziers did not seek prescriptive
easements for their garages either in their pleadings or in their post-trial brief. It
was the Hemmahs who first broached the topic of prescriptive easements. And
when the court asked both parties to address prescriptive easements in their post-
trial briefs, the Hemmahs were the only party to do so.
[¶20.] After receiving the court’s memorandum decision, the Hemmahs
prepared a draft judgment and order for the court’s consideration. The Luziers
objected to the proposed judgment and order, arguing that the prescriptive
easement language did not adequately account for the earth anchors that stabilize
the south wall of the Luziers’ large garage and extend below the ground into Lot 5A.
And despite not seeking any prescriptive easements previously, the Luziers
included in their objection a request for an additional prescriptive easement that
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would extend five feet south of the sidewalk that runs along the south edge of their
cabin toward the lake.
[¶21.] The circuit court denied the Hemmahs’ proposed judgment and order
and entered its own, which defined the scope of the Luziers’ prescriptive easement
as follows:
Said prescriptive easement for the use of the small and the large garage shall include only that portion of the [Hemmahs’] real property upon which said garage structures now actually occupy, and no other. Said prescriptive easement shall include the limited right to the use of the easement area and the immediate adjacent area which is necessary to support the maintenance and operation of [the Luziers’] existing garages in the manner in which said existing garages have historically been used. [The Luziers], as the easement holders, do not have the right to expand the use of the easement beyond that which is necessary to support the maintenance and operation of their existing garages in the manner in which said existing garages have historically been used.
The court did not include the five-foot prescriptive easement that the Luziers
belatedly requested.
[¶22.] The Luziers now appeal, raising three issues, which we restate as
follows:
1. Whether the circuit court clearly erred by accepting conflicting deposition testimony without specifically analyzing each deponent’s credibility.
2. Whether the circuit court clearly erred when it determined that the Luziers had not established the elements of adverse possession by clear and convincing evidence.
3. Whether the circuit court erred by refusing to expand the prescriptive easements it granted the Luziers.
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[¶23.] By way of notice of review, the Hemmahs ask us to decide whether the
circuit court erred by granting the Luziers prescriptive easements for their two
encroaching garages.
Analysis and Decision
Deposition testimony
[¶24.] “In all actions tried upon the facts without a jury or with an advisory
jury, the court shall . . . find the facts specially and state separately its conclusions
of law thereon . . . .” SDCL 15-6-52(a). “Findings of fact, whether based on oral or
documentary evidence, may not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the credibility of
the witnesses.” Id. (emphasis added).
[¶25.] As previously mentioned, both parties stipulated to the admission of
deposition testimony in the form of transcripts from Robert and Vincent Webb, Teri
and Chris Johnson, and Charles Dickhut. The Luziers now argue that the circuit
court erred because it “apparently did not . . . attempt to weigh the credibility of the
witnesses who testified by deposition.” This is a reference to the court’s statement
in its memorandum decision that it would simply accept the testimony of the
Johnsons and Robert Webb as conflicting testimony from disinterested witnesses
because the court “did not have the opportunity to observe Mr. Webb or the
Johnson’s [sic] testify.”
[¶26.] The Luziers’ argument essentially asks us to direct the circuit court to
weigh particular evidence in a certain way or use a prescribed method. But this is
contrary to our well-established rules for reviewing a circuit court’s findings of fact,
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which implicate our clear error standard. See Kirwan v. City of Deadwood, 2023
S.D. 20, ¶ 30, 990 N.W.2d 108, 116 (Under our “clearly erroneous standard, we will
reverse only if after careful review of the entire record we are definitely and firmly
convinced a mistake has been committed.” (citation modified)); see also Adrian v.
McKinnie, 2002 S.D. 10, ¶ 8 n.1, 639 N.W.2d 529, 533 n.1 (stating that “[c]redibility
findings are best left to the trial court; therefore, we give those findings
considerable deference” (citing In re Regennitter, 1999 S.D. 26, ¶ 11, 589 N.W.2d
920, 923)).
[¶27.] We see no clear error in the way the circuit court assessed the factual
information related by the deposition witnesses. Nor can we accept the idea that
the court did not assess any aspect of their credibility. The court determined the
witnesses were disinterested and without a partisan stake in the outcome of the
litigation. The court simply expressed the view that it could not determine facts
from the conflicting testimony using only the pages of their depositions without, as
the court noted at trial, “knowing . . . what the voice inflection or mannerisms were
when they testified.”
[¶28.] There is another aspect to the Luziers’ argument relating to the
deposition testimony. In their appellate submissions, they dedicate considerable
effort to factual arguments relating to the relative credibility of the deposition
witnesses and ask us to determine Robert Webb’s testimony to be less credible than
the Johnsons’ testimony. But this, of course, would contravene SDCL 15-6-52(a)
and our role as a reviewing court to recognize the primacy of the circuit court’s
institutional factfinding advantage, which is evident from the record here.
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[¶29.] In addition to the deposition testimony, the circuit court heard live
testimony from Jonathan Fortner, Thomas and Marsha Luzier, as well as Jennifer
and Andrew Hemmah. The court also received close to 100 exhibits, mostly
photographs, surveys, and plat maps and, at times, asked its own clarifying
questions to understand the facts. Its ultimate findings were the product of its
consideration of the entire evidentiary record, as they should be, and the Luziers
cite no rule that would allow us to narrowly excise only the portion of the
evidentiary record relating to the deposition testimony and determine who among
the deposition witnesses was more credible.3
Adverse Possession
[¶30.] “Proof of the individual elements of adverse possession present
questions of fact for the [trier of fact], while the ultimate conclusion of whether they
are sufficient to constitute adverse possession is a question of law.” Mohnen v. Est.
of Mohnen, 2024 S.D. 35, ¶ 19, 9 N.W.3d 481, 486 (alteration in original) (quoting
Healy Ranch P’ship v. Mines, 2022 S.D. 44, ¶ 46, 978 N.W.2d 768, 781). Therefore,
“[w]e review the circuit court’s factual findings for clear error and its legal
3. While not a legal rule, the Luziers do cite to South Dakota Civil Pattern Jury Instruction 1-30-10 as an example of factors the court should have considered when deciding which witness’s deposition testimony to believe, including the ability to observe events, memory, prior inconsistent statements, apparent interest or bias, and general reasonableness. But these instructions are simply meant to guide jurors in their factfinding effort. No rule of law requires a finder of fact to formulaically apply specific factors to assess credibility. And in court trials, like we have here, it is “for the trial court to accept as true or reject as untrue the testimony given, and [this] [C]ourt will not disturb its findings unless the evidence clearly preponderates against them.” Chicago, B. & Q.R. Co. v. Wheaton, 80 N.W.2d 868, 871 (S.D. 1957) (citing Houck v. Hult, 258 N.W. 142 (S.D. 1934)). -11- #31234, #31235
conclusions de novo.” Fuoss v. Dahlke Fam. Ltd. P’ship, 2023 S.D. 3, ¶ 22, 984
N.W.2d 693, 701 (quoting Gangle v. Spiry, 2018 S.D. 55, ¶ 11, 916 N.W.2d 119, 123).
“A finding is ‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Id. (quoting Eagle Ridge Ests. Homeowners
Ass’n, Inc. v. Anderson, 2013 S.D. 21, ¶ 12, 827 N.W.2d 859, 864).
[¶31.] In an adverse possession action, the party holding record title is
presumed to possess the property. Gangle, 2018 S.D. 55, ¶ 13, 916 N.W.2d at 123
(citing SDCL 15-3-7). “A person claiming title by adverse possession must prove the
following elements by clear and convincing evidence: ‘(1) an occupation that is (2)
open and notorious, (3) continuous for the statutory period, and (4) under a claim of
title exclusive of any other right.’” Fuoss, 2023 S.D. 3, ¶ 24, 984 N.W.2d at 701
(quoting Underhill v. Mattson, 2016 S.D. 69, ¶ 11, 886 N.W.2d 348, 352); see also
SDCL 15-3-12. “Although the statutory period for adverse possession is 20 years
under SDCL 15-3-1, tacking allows a party to add its own claim to that of previous
adverse possessors in interest, and under whom the party claims a right of
possession.” Titus v. Chapman, 2004 S.D. 106, ¶ 27, 687 N.W.2d 918, 925–26 (citing
Est. of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138,
141 (S.D. 1993)).
Occupation
[¶32.] Under SDCL 15-3-12, “only that portion of land which has been
actually and continuously occupied may be claimed when there is no written
instrument forming the basis of the claim.” Lien v. Beard, 478 N.W.2d 578, 579
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(S.D. 1991) (quoting Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 422).
Moreover, “the [p]roperty will only be deemed adversely possessed if it has been (1)
‘protected by a substantial [enclosure]’ or (2) ‘usually cultivated or improved.’”
Underhill, 2016 S.D. 69, ¶ 12, 886 N.W.2d at 352 (second alteration in original)
(quoting SDCL 15-3-13); see also Titus, 2004 S.D. 106, ¶ 28, 687 N.W.2d at 926
(“Occupation must rise to the level of a substantial enclosure or usual cultivation or
improvement.” (citing Schultz v. Dew, 1997 S.D. 72, ¶ 12, 564 N.W.2d 320, 323)).
[¶33.] This occupation requirement “provides a prerequisite to a justiciable
adverse possession claim.” Lewis v. Aslesen, 2001 S.D. 131, ¶ 7, 635 N.W.2d 744,
746. “Failure to show either a substantial enclosure or usual cultivation or
improvement preempts the claim.” Id. Whether evidence of substantial inclusion
constitutes occupancy is a question of law. Cuka, 294 N.W.2d at 422.
a. Substantial enclosure
[¶34.] A fence is the prototypical example of a substantial enclosure. In
Taylor v. Tripp, the claimant mistakenly believed that her property extended up to
“a heavy gauge woven wire combination [fence] with barb wire on the top.” 330
N.W.2d 542, 543 (S.D. 1983). In actuality, the claimant’s property line “was
approximately eleven feet short of this fence.” Id. We determined that “the
evidence disclosed at trial established that the fence line acted as a substantial
inclosure.” Id. at 544.
[¶35.] Yet, “[a]n enclosure need not be absolutely secure to satisfy the
‘substantial enclosure’ statutory requirement.” Titus, 2004 S.D. 106, ¶ 32, 687
N.W.2d at 926 (quoting Schultz, 1997 S.D. 72, ¶13, 564 N.W.2d at 323). In the past,
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we have recognized that a natural barrier, such as a river, can serve as a
substantial enclosure when it surrounded the disputed land “the same as if a fence
had in fact been erected around it.” Cuka, 294 N.W.2d at 422.
[¶36.] And in Lewis v. Moorhead, we concluded that even a partial fence can
constitute a substantial enclosure: “a white wooden fence, which bordered a portion
of the property approximately the length of [the defendant’s] residence,” was a
substantial enclosure. 522 N.W.2d 1, 2, 3 n.4 (S.D. 1994). “Even though the white
fence did not run the entire distance between the lots, it did provide a physical and
visual basis for determining the property line.” Id. at 3 n.4. In Lewis, we remarked
parenthetically that “[a]n inclosure having no purpose of physical exclusion of
outside interferences . . . may be sufficient under the circumstances to indicate, as a
matter of fact, the boundaries of an adverse claim.” Id. (emphasis added) (quoting
Klinefelter v. Dutch, 467 N.W.2d 192, 194–95 (Wis. 1991)).
[¶37.] Similarly, in Schultz v. Dew, we determined that a row of “seven
evergreen trees” planted by claimant along the disputed property boundary was a
substantial enclosure, reasoning that the tree line is a type of “deliberate enclosure”
because the claimant “planted and maintained the trees.” 1997 S.D. 72, ¶¶ 5, 13,
564 N.W.2d at 321, 323. But in Ashby v. Oolman, this Court clarified that a
substantial enclosure must be “more than an invisible line” arbitrarily drawn
between seemingly random objects found along the disputed property line. 2008
S.D. 26, ¶ 20, 748 N.W.2d 132, 137. Accordingly, the Court rejected Ashby’s
argument that “the stump of a tree along with a second pine tree and remnants of a
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fence, located in the back of the property, constitute[d] a ‘substantial enclosure.’”
Id.
[¶38.] Here, the circuit court concluded that “[n]o substantial enclosure
existed to show either party that [the disputed property] was intended to be
connected to Lot 9.” The court’s conclusion is supported by the record and not
clearly erroneous. The property line advanced by the Luziers, which is represented
by the “use of land line” in Exhibit 23, closely resembles the “invisible line” that we
rejected in Ashby v. Oolman. The Luziers’ claimed property line runs east along
mostly buried earth anchors south of their large garage to the tip of a retaining wall
that runs diagonally off the southeast corner of the large garage; it then runs east to
an angled driveway retaining wall; at which point it follows that retaining wall in a
northeasterly direction; at the end of the driveway wall, the line heads east again
south of an oak tree until the lakeside retaining wall.
[¶39.] Aside from the driveway rock wall, there is no apparent structure—
natural or otherwise—that would enclose the disputed area. And though a rock
wall could, under certain circumstances, serve as a substantial enclosure, the record
makes clear that it did not in this case. For instance, Jonathan Fortner testified
that there was no substantial enclosure separating Lot 9 from Lot 8. In his words,
“There are no enclosures along the whole of Ramona Beach. There is [sic]
improvements.” And Thomas Luzier candidly acknowledged that there was no line
between Lots 8 and 9 that physically showed their claimed property line. As the
Hemmahs’ brief pointed out, given the L-shape of the rock wall, the property
actually enclosed would be the Hemmahs’ driveway.
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[¶40.] Additionally, neither the current nor previous owners of Lot 8 acted as
though the rock wall served as an enclosure around Lot 9. Both the Webbs and
Hemmahs testified about gardening and landscaping activities they undertook
north of the wall.
b. Cultivation or improvement
[¶41.] Because SDCL 15-3-13 is written in the disjunctive, a claim of adverse
possession can succeed without a substantial enclosure if the claimant can show
that they “usually cultivated or improved” the property in dispute. Schultz, 1997
S.D. 72, ¶ 12, 564 N.W.2d at 323 (quoting SDCL 15-3-13). “We have explicitly held
that ‘regular mowing of the property constitutes cultivation under SDCL 15-3-
13(2).’” Underhill, 2016 S.D. 69, ¶ 13, 886 N.W.2d at 353 (quoting Aslesen, 2001
S.D. 131, ¶ 8, 635 N.W.2d at 747); see also Jutting v. Hendrix, 2000 S.D. 25, ¶ 12,
606 N.W.2d 140, 142 (recognizing that “planting and maintenance of the trees along
with . . . cleaning of debris . . . and their regular mowing of the property for thirty or
forty years constituted cultivation”). “We have also explicitly held that ‘landscaping
is an improvement to land under SDCL 15-3-13(2).’” Underhill, 2016 S.D. 69, ¶ 13,
886 N.W.2d at 353 (quoting Aslesen, 2001 S.D. 131, ¶ 8, 635 N.W.2d at 747); see also
Schultz, 1997 S.D. 72, ¶ 15, 564 N.W.2d at 324 (holding that a “gravel and later
asphalt driveway, together with landscaping, constitute[d] an improvement to the
land”).
[¶42.] Here, the cultivation or improvement theory required the circuit court
to first weigh conflicting evidence regarding who regularly mowed and maintained
the strip of property at issue, much of which was presented via depositions, rather
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than live testimony. From our review of the record, the court’s ultimate conclusion
that the Luziers simply did not meet their burden to establish that the owners of
Lot 9 “usually cultivated or improved” the disputed land was neither incorrect nor
clearly erroneous.
[¶43.] Significantly, to prove occupancy under SDCL 15-3-13(2), the Luziers
needed to prove cultivation or improvement by clear and convincing evidence—
“more than a mere preponderance but not beyond a reasonable doubt.” In re Zar,
434 N.W.2d 598, 602 n.7 (S.D. 1989) (quoting Cromwell v. Hosbrook, 134 N.W.2d
777, 780 (S.D. 1965)). This standard requires evidence that is “so clear, direct and
weighty and convincing as to enable either a judge or jury to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue.” Id. (citation
omitted). Under the circumstances and particularly given the court’s correct
application of the heightened standard of proof, we cannot say the circuit court’s
determination was clearly erroneous.
[¶44.] Because SDCL 15-3-13 is “a prerequisite to a justiciable adverse
possession claim,” the Luziers’ failure to show a substantial enclosure or usual
cultivation or improvement preempts their adverse possession claim. Aslesen, 2001
S.D. 131, ¶ 7, 635 N.W.2d at 746. Accordingly, we need not address the other
elements of adverse possession.
Prescriptive easements
[¶45.] “A party claiming the existence of a prescriptive easement must meet a
two-part test by clear and convincing evidence.” Rotenberger v. Burghduff, 2007
S.D. 19, ¶ 8, 729 N.W.2d 175, 178 (citing Rancour v. Golden Reward Mining Co.,
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2005 S.D. 28, ¶ 7, 694 N.W.2d 51, 53–54). “First, the party must show an open,
continued, and unmolested use of the land in the possession of another for the
statutory period of 20 years.” Id. (citation modified). “Second, the party claiming a
prescriptive easement must show the property is being used in a manner that is
hostile or adverse to the owner.” Id. (citation modified). These elements “serve to
protect the servient [landowner] by providing [them] with notice of a prescriptive
right.” Fuoss, 2023 S.D. 3, ¶ 49, 984 N.W.2d at 706 (quoting Helleberg v. Estes,
2020 S.D. 27, ¶ 22, 943 N.W.2d 837, 843–44).
[¶46.] “A prima facie case for a prescriptive easement is established ‘by
showing an open and continuous use of another’s land with the owner’s knowledge,
creating a presumption that such use is adverse and under a claim of right.’”
Rotenberger, 2007 S.D. 19, ¶ 9, 729 N.W.2d at 178–79 (quoting Thompson v. E.I.G.
Palace Mall, L.L.C., 2003 S.D. 12, ¶ 8, 657 N.W.2d 300, 304). “Once established, a
presumption of a prescriptive easement is created from the proof of an
uninterrupted adverse use for the prescriptive period.” Id. ¶ 9, 729 N.W.2d at 179
(citation modified). This “presumption may be rebutted by proof that the use was
by permission or not under a claim of right.” Id. (citation modified).
[¶47.] There is no dispute here that the Luziers’ two garages encroached onto
the Hemmahs’ property. And neither party contests that the encroachment
constituted an open, continued, and unmolested use of land owned by another for
the twenty-year statutory period; the small garage was moved to its present
location in 1948, and the large garage was built in 1997.
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[¶48.] The Hemmahs’ sole argument on appeal is that the circuit court clearly
erred by finding that the garage encroachments were hostile because, in their view,
the encroachments were permissive. With respect to the small garage, there is no
evidence in the record to show that the encroachment was permissive. Robert Webb
admitted in his deposition testimony that he had no knowledge of the small garage’s
encroachment until the 2002 survey. When asked if he complained to the Johnsons
about the encroachment, he responded, “What good’s that going to do? It had been
sitting there since 1948. I showed him. I showed him where it was. But I said
there’s nothing either one of us can do about that.”
[¶49.] As for the large garage, the circuit court’s finding of hostility was not
clearly erroneous. In his deposition, Robert Webb explained how he had asked the
Johnsons to move their large garage to the north when they had initially started
building it because he believed the garage was going to be built over the property
line. Robert acknowledged that the Johnsons then moved it to the north, “but not
far enough.” On cross-examination by the Luziers’ attorney, Robert explained that
he was in Sioux Falls when the garage was being built and did not actually see if
the Johnsons moved the large garage to the north; Robert merely told Bob Johnson
that “he better move it.” And when asked whether he ever discussed the
encroachments with the Luziers, Robert responded, “No.” Under the circumstances,
the circuit court’s finding that there was no permission for the new garage was not
[¶50.] The Luziers also contend that the circuit court erred by not expanding
the prescriptive easement for the large garage to extend an additional fifteen feet
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south to protect the integrity of the earth anchors and retaining wall. The Luziers’
request, however, risks being overinclusive. During his deposition, Dickhut
estimated that the earth anchors were ten to fifteen feet long, but he could not be
exact. Given Dickhut’s necessarily imprecise testimony, the Luziers’ proposal would
unnecessarily limit the Hemmahs’ use of their own property. By framing the
prescriptive easements for both garages to include only “the immediate adjacent
area which is necessary to support the maintenance and operation of” the garages,
the circuit court properly balanced the Luziers’ right to keep and maintain their
existing garages with the Hemmahs’ right to use their property without undue
burden.
[¶51.] Finally, the Luziers also argue that the circuit court erred by not
granting an additional prescriptive easement for enhanced lake access through the
disputed area between Lots 8 and 9 that would extend five feet south of the Luziers’
sidewalk that runs along the southern edge of their cabin. But, as we previously
noted, the Luziers did not seek prescriptive easements in either their amended
complaint or their post-trial written closing argument.
[¶52.] Instead, it was the Hemmahs who raised the topic, but only for the two
garages, not the five-foot access easement. That request came only after the circuit
court’s decision in the form of an objection to the Hemmahs’ proposed judgment.
Under the unique circumstances presented here, we believe the prescriptive
easement issues relating to the two garages are reviewable on appeal, but we
conclude that the Luziers’ additional claim for a separate five-foot lake access
easement has been waived and is not properly before us.
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Conclusion
[¶53.] The circuit court’s determination that the Luziers had not proven the
occupancy element of adverse possession by clear and convincing evidence was
based on facts found by the court as part of its unique fact-finding role. These
findings are supported by the record, not clearly erroneous, and fatal to the Luziers’
adverse possession claim. See Aslesen, 2001 S.D. 131, ¶ 7, 635 N.W.2d at 747. The
same is true for the Hemmahs’ challenge to the court’s findings associated with the
prescriptive easements for the garages. Under our deferential clear error review,
the court’s findings that the Hemmahs did not sustain their permissive use claims
cannot justify relief on appeal. We affirm the circuit court’s disposition on all
issues.
[¶54.] JENSEN, Chief Justice, and DEVANEY, MYREN, and GUSINSKY,
Justices, concur.
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