916 N.W.2d 119
S.D.2018Background
- In 1968 A. William Spiry bought Lot 1 in the Sckerl’s Roy Lake subdivision; adjoining pasture to the east was owned by the Sckerl family and then purchased by Max Sckerl’s buyer (later Gangle's father).
- In 1969 Gangle and his father built a barbed-wire fence running north–south through Lot 1, placing a small parcel of Lot 1 east of the fence (Lot 1C) effectively under Gangle-family grazing use.
- Spiry discovered the fence in 1969 and gave Gangle’s father verbal permission to keep the fence and use the area; Spiry later placed posts (about 30 yards into Gangle’s pasture) to mark his line but did not otherwise eject the users.
- Gangle succeeded to his father’s interest and used the disputed area continuously for decades; the parties disputed whether any later acts gave Spiry notice of hostile possession.
- Gangle sued to quiet title by adverse possession; Spiry counterclaimed to quiet title to a small adjacent strip but voluntarily dismissed that counterclaim before trial. The circuit court quieted title to Gangle (finding adverse possession) and dismissed Spiry’s counterclaim with prejudice.
- The Supreme Court of South Dakota reversed: it held the possession remained permissive (so no adverse possession) and that dismissing the counterclaim with prejudice was an abuse of discretion (should be without prejudice).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gangle acquired title by adverse possession to Lot 1C | Gangle argued his occupation was actual, open, continuous, notorious, and hostile for the statutory period, satisfying adverse-possession elements | Spiry argued original permission to Gangle’s father continued to Gangle, so possession was permissive (not hostile) and statute did not run | Reversed: possession remained permissive inherited from father; mere transfer did not ripen permission into hostile possession absent unequivocal act putting owner on notice |
| Whether permissive use by predecessor can ripen into hostile adverse possession upon transfer | N/A (Gangle’s position implicit that his continued use became hostile over time) | Spiry argued permission to predecessor continued; mere transfer cannot convert permissive use into hostility | Held that permissive use cannot become hostile by mere transfer; requires positive, notorious act or withdrawal of permission giving owner notice |
| Whether the circuit court properly dismissed Spiry’s counterclaim with prejudice | N/A (Gangle did not oppose dismissal below) | Spiry asked voluntary dismissal; court entered dismissal with prejudice | Reversed: dismissal with prejudice was an abuse of discretion where there was no analysis of prejudice; dismissal should be without prejudice |
| Standard for converting permissive entry into adverse possession | N/A | Permissive use becomes adverse only after a positive, continuous, manifest disclaimer or other notice to owner | Court adopted that rule: permissive occupancy requires unequivocal hostile acts or actual notice to owner to begin statutory period |
Key Cases Cited
- Underhill v. Mattson, 886 N.W.2d 348 (S.D. 2016) (standard of review and elements of adverse possession)
- Titus v. Chapman, 687 N.W.2d 918 (S.D. 2004) (elements of adverse possession: actual, open, notorious, continuous, and hostile)
- Cuka v. Jamesville Hutterian Mut. Soc'y, 294 N.W.2d 419 (S.D. 1980) (presumption of possession in record owner unless adverse possession proven)
- City of Deadwood v. Summit, Inc., 607 N.W.2d 22 (S.D. 2000) (burden of proof: clear and convincing evidence for adverse possession)
- Broadhurst v. Am. Colloid Co., 177 N.W.2d 261 (S.D. 1970) (possession that is not hostile cannot be adverse)
- Travis v. Madden, 493 N.W.2d 717 (S.D. 1992) (permissive continued use insufficient for adverse possession)
- Barrow v. D & B Valley Assocs., LLC, 22 A.3d 1131 (R.I. 2011) (permission to predecessors does not ripen into hostility upon transfer absent withdrawal or notice)
- Lindokken v. Paulson, 272 N.W. 453 (Wis. 1937) (permissive use can be changed to hostile only by unequivocal conduct; adverse-possession claims strictly construed)