*1 monetary limit on the of an statute, amount ex- ble from the remainder of the thus, emption be claimed debtor last sentence is unconstitu- affirmative, next we ascertain tional. See South Dakota Educ. Ass’n v. Legislature Barnett, whether our has acted within SD parameters set the Constitution. 394. provides: SDCL 43-45-3 not, Our [¶22.] decision does as the A homestead: State suggests, the intent of “subvert[] (1) Legislature provide potentially in chapter As defined and limited broader 43-31, right homestead to those absolutely over the exempt; is age seventy.” Clearly, Legislature (2) In the event such homestead is sold has broad and liberal of setting discretion 21-19, under provisions chapter However, exemption limit. that dis- is sold voluntarily, owner cretion is not Legislature boundless. The sale, proceeds such exceeding not simply place monetary must value on thirty dollars, sum of thousand is abso- that limit. lutely exempt period year for a of one receipt
after proceeds by of such GILBERTSON, Justice, Chief exemption owner. Such shall not be SABERS, ZINTER, thirty limited to dollars thousand MEIERHENRY, Justices, concur. person seventy years homestead of aye or older or the unremarried surviv- ing spouse person so long as it possess
continues to the character aof
homestead. added.)
(Emphasis It is clear that
Legislature has fulfilled its constitutional
establishing
mandate of
a homestead ex-
tion shall language be “limited.” The incompatible. statute exemption An Supreme Court of South Dakota. that “shall limited” is not “limited.” Considered April Briefs 2004. Therefore, we declare the statute unconsti May Decided tutional as it purports insofar to confer an unlimited homestead exemption those
over seventy years age. We also con
clude that entirely this sentence is severa- points Beck, State significant our in Beck decision It here. is not. the con- Lapsley, stitutionality statute was not in issue.
ted and recorded an across property which allowed to the lake lots. easement has at all times re- private, it mained and has never been ded- *3 1996, as a public icated road. In improve platted Blocks wanted to ease- Richardson, Wise, Wyly, Jack of Hiéb they year-round ment so obtain ac- could Hieb, L.L.P., Aberdeen, Sauek & South property. cess to their lake a result As of Dakota, Attorneys plaintiffs appel- however, topography, used path lees. the lot owners correspond did Milbank, Coester, Da- William E. South location of the plat. kota, Attorneys and appel- defendants sought 4.] The Blocks permission [¶ lants. portion from the improve Drakes to a of which private road ran across the GILBERTSON, Chief Justice. land northerly Drakes’ a direction to in. Merlyn [¶ Drake and Bonnie Drake 1.] Lot any 7. Based on their assertion that (Drakes) from various appeal rulings improvement cooperative should be a concerning -on-going the circuit court an owners, project involving all the lot dispute Douglas real estate with J. Block grant permission Drakes refused to to the (Blocks). and Elaine M. Block For In response, Blocks. the Blocks filed an herein, we expressed reasons affirm the against seeking action court part the circuit court in permission to build access road outside part. remand in plat. the recorded easement on the A
trial to the court held in June case, AND At the end FACTS PROCEDURE the Blocks and a stipulation agree- Drakes entered into appeal [¶ 2.] revolves around ment which formed basis for the circuit dispute neighbors owning between two judgment. party appealed court’s Neither property Enemy located near Swim Lake judgment, this Pursuant to the in Day County, South Dakota. At one improved Drakes the road easements des- (Fleisch- point, Leo and Rose Fleischhaker ignated as “B” Tracts and “D” hakers) all owned the land the héart of 1996, In dispute. Fleischhakers sold In 2002, summer the Sisse- portion property of their known as Gov- ton-Wahpeton regis- Sioux Tribe hired (Lot 7) ernment Lot to the Blocks. land surveyor tered ascertain the exact directly Most of property the Fleischhaker boundary adjoining of land it owned abutting pre- Swim Lake had been property dispute. now in surveyor The viously platted parties. and sold third determined that the location of the im- subsequently bought remaining proved road easement on “D” Tract Fleischhaker property'leaving them actually on tribal land and not the Drake’s north, land to the east and south of Lot 7. land as the previously believed. Both Blocks and also owned a Eventually, dispute [¶ 6.] second adjoined which the lake. arose over access to Swim Lake on purchasing After Lot land owned the Drakes north Lot 7. Blocks improvements made al- several The 1998 made reference to had n ready existing pasture trails on prop- such access. judgment, After erty. Previously, Fleischhakers’ plat- platted had Drakes’ sold land which had OF STANDARD REVIEW this access
traditionally provided new constructed a Drakes’ then lake. The findings court’s We review trial However, they aput road. path or clearly fact erroneous stan under property end of this at the south Inc., Summit, City dard. Deadwood v. thereby preventing locked it 22, 25. ac- newly constructed accessing from when, is shown after “Clear error exact of' location path by vehicle. cess evidence, ‘we are review all the left from the gate cannot ascertained firm conviction that a mis a definite and ” record. Mining has made.’ New Era take been Inc., Placers, Co. v. Dakota sought to re- the Blocks *4 omitted). (citation 7, 202, 603 N.W.2d 204 plead- a judgment filing open the 1998 conclusions of law un This Court reviews in to Hold Defendants ing entitled “Motion defer der the de novo standard no which Relief’ Contempt or Alternative afforded the trial court’s decision. ence requested: Summit, Inc., 29, 9, 607 2000 SD N.W.2d contempt in 1. Drakes be held The Statutory interpretation appli at 25. file an easement failing to court v. Steinberg cation are law. questions of on the as various tracts depicted Dept. Military Affairs, 2000 SD State to failing and for Judgment, 1998 ¶ 6, 36, 596, 607 599. N.W.2d a on their land de- construct A to trial court’s decision “D”; picted as Tract 15- reopen judgment pursuant to SDCL Drakes an easement grant 2. The 60(b) an will not be reversed absent 6— to the south which allowed access Pesicka, abuse discretion. Pesicka for the Swim Lake bank 725, 728. 2000 SD 618 N.W.2d ensuring purposes of that to would have unfettered access AND DECISION ANALYSIS area. court 1. Whether trial ruled in favor generally The trial court jurisdiction re-open 1998 had in did not hold the Drakes the Blocks but judgment. however, order, contempt. The court’s that if do not made it clear that since the argue order, they comply its 2003 will judgment appeal- final and never 1998 appeal contempt. held The now Blocks, with- by the the trial court was ed our three issues for review: raise in 2003. jurisdiction reopen the case out 15-6-60(b) controls this issue SDCL jurisdic- 1. court had trial Whether part: provides relevant re-open judgment. tion to upon terms as are On motion and such in or- the trial court erred Whether party or his just, court relieve roadway dering the relocation judg- from a- final legal representative “D”. designated as Tract ment, order, fol- proceeding or court erred trial Whether lowing reasons: provide Drakes to requiring (1) inadvertence, Mistake, or surprise, neglect; excusable currently Lake and unlock (2) which Newly discovered evidence by vehi- blocking have dis- diligence due could not been cle. 464 309, (S.D.1994)). Kaarup, to move for a new trial N.W.2d
covered time 6—59(b); § under We have under “[r]elief held SDCL 15— 15-6-60(b) granted only upon showing (3) (whether Fraud heretofore denom- exceptional circumstances.” Divich v. extrinsic), or misrepre- inated intrinsic Divich, 24, ¶ 8, 2002 SD 640 N.W.2d sentation, other of an or misconduct ad- ¶¶ Pesicka, 760 (citing 17-18, party; verse 728). recognize, We how (4) void; judgment The ever, 60(b)(6)] the “broad language [of (5) satisfied, has been re- gives ample the courts power vacate leased, prior discharged, judg- or a judgments whenever such is appro action which upon ment it is based has been priate accomplish justice.” Zundel v. vacated, or it reversed or otherwise is no Zundel, (N.D.1966) longer equitable Holtzoff, (quoting 3 Barron & Federal prospective application; should have 417)). § Practice and Procedure 1329 at (6) Any justifying other reason relief uphold We will a trial court’s decision to operation from power showing exercise this absent a of an added). (emphasis The Drakes correctly Pesicka, abuse of discretion. point out that the first five criteria under *5 ¶ 18, By this re-opening apply rule for do not here.1 surrounding factual circumstances both (6) which a Subsection allows case to be Tract “D” providing access to lake lots reopened “any other reason justifying path the access to the lake had operation judgment” relief from the of the changed. While trial court was careful does apply, response, however. In not place on blame the Drakes for the years Drakes claim five a not “reason- erroneous placement path of the on Tract disagree. able time.” We “D” which previous had been used for the All parties litigation [¶ to the 1998 12.] years another, in one form or the cur improved assumed the on easement Tract rent factual situation rendered “D” compliance in judgment with that non-compliance judgment. the 1998 survey until by the 2002 the Sisseton- The selling Swim access and Furthermore, Wahpeton Tribe. Sioux of locking gate Drake’s act dispute over the lake access did not exist new path access were also not addressed until 2001 when the that por- Drakes sold Thus, the 1998 order. in order to en tion of provided land which had previously force its 1998 light the new contemplated access judg- factual developments, the trial court did Upon discovery survey ment. prob- not abuse discretion in allowing its a re lem, the Blocks promptly, moved for a re- opening of case in this 2002. Id. opening of the ease. [¶ 2. Whether 14.] the trial court purpose “The- [¶ Rule 13.] ordering erred in the relocation of the 60(b) preserve is to the delicate balance roadway designated as Tract “D”. sanctity judgments between the of final and the incessant [¶ command court’s 1998 judgment clearly 15.] The re- justice conscience that in light quired be done the Drakes to improve the ease- Pesicka, all the facts.” ment on “D” at expense Tract their own (citing N.W.2d at 728 Hrachovec v. end of 1998. Both the evidence", 1. Although suggest the facts of this case sub- discovered such a must motion (2) might apply section "newly brought year because of judgment. within a after the of new road to conform to the fully complied struction had believed Nevertheless, ex- af- required.4 as will be We judgment. with the above, survey deter- the tribal firm on this issue. plained im- of the location mined the actual the trial court 3. Whether land, essentially on tribal provement by requiring pro- the Drakes to erred non-compliance establishing the Drake’s public vide with the 1998 cur- Lake and unlock rently blocking public argue that since such access [¶ location in its current vehicle. path has been Sisseton-Wahpeton for decades position take that no 19.] Drakes off, it no move to cut has made Sioux Tribe access lake member what they required not be build should Blocks permission. on the without their parallel eighty road feet amounts to as argue hand that the well as other already path they have east have unlimited lake access owners judgment required The 1998 improved.2 position by the easement. Neither con- on own a road their them to build such supported by cerning has been done. More land and this For rea- current state of record. nothing over, agreed Blocks have forth, to the set we remand circuit sons time the cur until need be done mat- proceedings for further court cut, order if The 2003 rent access is ever. doing, following we offer the ter. so a new would be construct states that guidance. its successors if “the tribe or ed hinder substantially assigns terminate or decision, In its 2003 the trial *6 by built the road that was access via express provisions of the court held one judgment addition 2003 [Drakes].”3 the parties that judgment and that ally states should Enemy to the south bank provide access of a new agree Blocks that construction could access Lake so Swim necessary, will born the cost be road is fishing purposes. hunting for same the new by parties. As equally two (and it held the Drakes Additionally, constructed, road, may extend if ever Blocks) grant across were to easements Blocks, into Lot 7 northward owned that all the owners properties their so provide to ease parties are directed both Fi- property. to their would have access ments its establishment. for that the Drakes’ nally, the trial court held at the south padlocking actions most recent or- The trial court’s
[¶ 17.] “[were] this access easement entrance to nothing to do requires der prior Judg- Court’s is cut not consistent It is if current access present. case.” concerning con- ment this off that the court’s order constructed, of the dispute quired to failure there be also claim that Blocks granting may concerning comply of an easement over in a the 2003 order result to judg- depicted "B" on the 1998 an area finding contempt. this do not raise ment. Because the Drakes brief, be point deemed not to in their it is Marshall, County SD 1997 4.In Steiner v. before us. 632, 627, ¶ 109, 23, we N.W.2d held 568 prescriptive private party cannot obtain mis- Drakes' 3. The trial court also found governmentally against a owned easement to be in take the location of as to parcel of estate. real good them in and thus did find faith However, road is re- contempt. if the new 466 noted, 43-13-5, previously According As to SDCL “[t]he of a extent stipula
1998 result of servitude is determined' tion the Drakes and Blocks. The terms grant, between of the or the nature of the enjoyment relevant of the read part acquired.” as fol which it was Un statute, lows: der this physical neither the size nor purpose use of the easement Doug agree That Block Elaine expanded beyond or enlarged grant a 60-foob-wide easement across granting terms in the easement court’s existing improved roadway lying on Madison, judgment. Knight 1998 2001 depicted their land and with dashed ¶ 540, 542 (citing 634 N.W.2d A ingress lines on Exhibit for Motel, Super Townsend v. Yankton A egress through to Lots U and Govern- (S.D.1985)); 162, N.W.2d 165-66 see Kok portion ment Lot 6 and that of Govern- ¶ 126, Running, 12, esh v. 2002 SD ment Lot that lies to the south of the 790, 793. “Unless the owner of Enemy south bank'of swim creek inlet. the servient estate expressly agrees other granted exclusively Such easement for wise, the right owner reserves the to use said property expressly owners and ex- property any any manner any right portion cludes purpose, long so as the does not owner Government Lot 5 that north lies of the enjoyment interfere with the use or creed Swim inlet. ease- Knight, easement.” 2001 SD perpetual ment will be run with the N.W.2d at 543. addition, land. Doug and Elaine agree grant Block an easement across Although there is some refer along their land the same route as the ence public’s right to a use to ease easement described previously this ment, it private is clear that it remains paragraph which shall be to easement and was never dedicated purpose the sole allow- public generally Selway use. See Homeowners ing south access the bank Ass v. Cummings, oc. inlet creek to use 313-14 (defining hunting fishing. area “dedication” property as “devotion of public use” and recognizing “the intention added).
(emphasis In the next paragraph *7 of the owner to dedicate” public accep and of the judgment, agreed the Drakes to tance thereof as the essential elements of a grant an easement which would “connect dedication). Thus, valid the re the roadway on the south of plat end the to rights realty tained all to their not ex depicted the roadway with dashed lines on pressly or granted given away in stipu the Exhibit A to roadway and extend all the to lation accompanying and judgment. On properly lying to the south bank of the appeal, argue allowing that creek inlet at the north end public unlimited use was never their in of plat.” the In “findings” its 2003 con- tent, they point and out interpre such an Order, tained in the the trial court held: tation grant renders the to the owners The Court finds that express one of the in the previous sentence they redundant as provisions of previous Judgment en- part public are of the in to being addition tered in parties this case was that the lot owners. provide access to the south bank of the public Swim Creek inlet so the Unfortunately, drafting of could hunting access same for and this disputed language is not without sub- fishing purposes. clear, vagueness. however, stantial It is Nevertheless, judgment solely granted to the lot owners specific grant that hunting fishing and public right From the to their lots. them access gave no explicit to the lake. There was unable to ascertain access are also record we to grant assume it is of vehicle access inside gate. We exact location right Lot 5 the and such a cannot be auto- gate, in Government located somewhere acknowledge along matically implied. and the ease- We Lot 6 or Government to the one not need a vehicle to hunt or plat attached does ment shown only ordered the fish.6 It also a short appears trial court which the easement granted away by walk lake. Unless sign. Drakes to easement, the estate retains owner real fee owner “The of. right to determine the extent vehic- gate limit to erect a right has the will on ular traffic he or she allow his road, long as access to third-party her property: ingress not interfere with as this does an rights [judgment] the easement holder.” created ease- egress and Herein ¶ 8, public] 634 N.W.2d at in favor of but did not Knight, [the 2001 SD ment Thus, rely Knight, held the landowner its terms. we on the In we define right gate. general erect a We law easements to determine retained the opinion explicitly give express no note the Drakes did its terms. We gates acknowledge spe- and written easements where the right away, we those obligations purp rights of valuable cific and serve multitude location in the completely we not know the are set forth docu- As do oses.5 rights the lot In gate, it is unknown whether those instances ment. adjacent and obligations have lots to Govern are created defined owners who through go agreement and have to it to . itself. ment Lots 5 for further reach their lots. We remand Knight, findings to whether the proceedings 3; Selway, see n. if are affected lot owners this uncertain- N.W.2d at 314. Given so, they to their lots type what ty, the trial court for further we remand to stipulation granted by have been proceedings granted as to what access grants. and other public by stipulation to use right easement, however, was limited to and remand part We affirm [¶27.] affidavit, “hunting fishing.” an pro- to the trial court for further part Merlyn at issue Drake said opinion. with this ceedings consistent “anyone having permis- given to hunt Drakes] sion from Defendant [the *8 along of the Ene-
and fish the South bank ZINTER, KONENKAMP, nothing else.” my inlet creek Justices, MEIERHENRY, concur. Drakes, Unfortunately vaguely Justice, SABERS, concurs [¶ not explicitly require 29.] did
drawn public to enter. result. their for the permission hunting prohibit- while 6. vehicle use objection Motor
5. Drakes’ removal Moschell, weekly "on a their contention that v. based on See State ed certain instances. fences, their basis vandalism has occurred to (citing ARSD N.W.2d 551. 677 allowing pastured gates cattle and enclosures 41:06:04:07). pasture.” the intended roam outside 468 result).
SABERS, (concurring in Justice necessary nor It is neither wise because, reality, reach Issue this is judgment,
an action to not enforce “open” “re-open” it. majority opinion ac-
[¶ 31.] Even “the factual
knowledges that current situa- non-compli-
tion the Drakes in rendered judgment”
ance with and “the actual survey
tribal determined the loca- land,
tion of on tribal improvement
essentially establishing Drake’s non-
compliance judgment.”
is an judgment, action enforce the
not to nor it. “open”, “re-open” Since compliance Drake’s actions are out judgment, it is actions their which
need to conform to the judgment, vice
versa. We should not bend the law out just
of shape because the misstate Therefore, I issues. concur on the only.
merits on Issues
and 3
Long, Attorney General,
Lawrence E.
Considered Briefs Feb. provide information, ure to a Class 6 felo- May Decided *9 ny. SDCL 32-34-5. He was sentenced to eighteen penitentiary months $13,532.18 ordered pay in restitution. We reverse.