932 N.W.2d 129
S.D.2019Background
- Lammers owned and farmed two tracts in Section 16; the South Dakota Game, Fish & Parks Department owned adjacent State land within the same section that had been held by the State since the 1889 federal grant.
- An historical north–south fence line had long been treated as the section quarter line, but original 1872 government corner markers were obliterated, so later surveyors relied on collateral evidence.
- Department surveys in 2013 and 2016 showed the fence line deviated 107 feet east of the true north–south quarter line set by the original 1872 government survey, placing the fence partly on Department land.
- Department crews entered Lammers’s fields to mark and install a new fence along the surveyed boundary; Lammers sued for a declaratory judgment and permanent injunction seeking recognition of the historical fence line as the legal boundary and removal of fence posts.
- Circuit court denied a motion to dismiss, later granted the Department’s motion for summary judgment, concluding the original government survey controls and that Lammers could not obtain State land by adverse possession; Lammers appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper boundary location between Lammers and State land | The historical fence line and collateral evidence create a genuine factual dispute about the true quarter line; fence should be declared the legal boundary | Original 1872 government survey and subsequent resurveys fix the quarter line at the section center; surveys show fence deviates 107 feet and encroaches on State land | Court held surveys consistently trace to the 1872 corners; no genuine dispute — boundary is the surveyed quarter line, not the historical fence |
| Applicability of adverse possession/acquiescence to take State land | Lammers argued long use and acquiescence should establish boundary (and invoked adverse possession elements) | Department argued claims to take public land by adverse possession are barred by state constitution and precedent | Court held Article VIII, §10 bars acquiring public land by adverse possession; acquiescence/adverse possession cannot divest State title |
| Sufficiency of survey evidence and expert opinions | Lammers relied on an expert letter and older surveys to argue competing surveyor opinions create material fact issues | Department pointed to consistent retracings and recent surveys (2013, 2016) that follow 1872 corners and quarter‑line construction | Court held the surveys, patents, and descriptions are consistent and no competent evidence created a genuine dispute about corners or methods used |
| Remedy for Department entry and fence posts | Lammers sought injunction and removal of posts based on historical boundary and use | Department maintained it was enforcing its survey-determined boundary on its own land | Court denied injunctive relief; ruled Department entitled to maintain fence along surveyed boundary since State title controls |
Key Cases Cited
- Titus v. Chapman, 687 N.W.2d 918 (S.D. 2004) (original federal government survey controls boundaries; later surveys are retracings that must follow original monuments)
- Doe v. Nelson, 680 N.W.2d 302 (S.D. 2004) (constitutional provision bars gaining State land by adverse possession)
- Steiner v. County of Marshall, 568 N.W.2d 627 (S.D. 1997) (prescriptive easements and adverse‑possession equivalents are not available against government property)
- Larimer v. American Family Mutual Insurance Co., 926 N.W.2d 472 (S.D. 2019) (standard of review for summary judgment is de novo)
- Underhill v. Mattson, 886 N.W.2d 348 (S.D. 2016) (elements of adverse possession explained)