[¶ 1.] Jаmes Hanson appeals from a summary judgment granted in a declaratory judgment action in favor of Terry Brown and Susan Brown (Browns) concerning the question of whether Hanson was entitled to rescind a Common Well and Road Easement Agreement (Easement Agreement). We affirm.-
FACTS
[¶2.] Browns аnd Hanson own adjoining real property in Meade County, South Dakota. A well that provides water to both properties is located on Hanson’s property. On June 14, 2000, Browns and Hanson entered into the Easement Agreement giving Browns the right to access water from the well for dоmestic purposes only. The Easement Agreement provided as follows:
That it shall be binding upon “Brown, Hanson and their respective heirs, successors, and assigns, and shall be considered to be a covenant running with the land. The parties agree that the well located upоn the Hanson property shall be utilized to provide water service to both the Hanson property and the Brown property. The parties each agree to use the water from the well for domestic purposes only and neither party shall sell any water from well, without written consent of the other party.
[¶ 3.] In July of 2006, Browns entered into a purchase agreement to sell their property to a third party. Before the sale was complete, Hanson filed a letter with the Meade County Register of Deeds claiming he had rescinded the Eаsement Agreement. Browns commenced a declaratory judgment action to determine if Hanson could seek rescission as a remedy. Hanson filed an answer and a counterclaim seeking rescission.
[¶4.] It is undisputed that each year from 2000 to 2005 Browns permitted 15-20 individuals to place their tents and recreational vehicles on their property during
ISSUE
Whether Hanson has the right to seek rescission as a remedy for breach of the Easement Agreement.
STANDARD OF REVIEW
[¶ 5.] “When reviewing a grant of summary judgment, ‘we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.’ ”
Kling v. Stern,
ANALYSIS
[¶ 6.] The parties agree that they had an express easement. An easement is “ ‘an interest in the land in the possession of аnother which entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists.’ ”
Knight v. Madison,
[¶ 7.] Here the parties determined the terms of the servitude by a written contract. The written contract involved the well and water main running from the well through three service lines with shut-off valves. One line serviced the home on the Brown property, and the other two lines serviced the home and barn on the Hanson property. The written contract set forth the parties’ “rights and obligations concerning the use of water from the water well.” The agreement provided that the parties would “use the water from the well for domestic purposes only, and neither party shall sell any water from the well, without written consent of the other party.” The agreement also specified that each party wаs responsible for the maintenance of the service lines on the party’s property and one-half of the cost of electricity and repair and maintenance of the equipment. Other provisions of the agreement involved the right of access to each other’s property and to a trail running
[¶ 8.] Hanson claims, pursuant to SDCL 43-13-12, that Browns’ use of the water for non-domestic purposes extinguished the water еasement because non-domestic water use was incompatible with the nature or exercise of the easement. Hanson claims that since the easement was extinguished, he is entitled to seek rescission as a remedy. In determining the narrow issue of whether Hanson could seek rescission, the circuit court assumed that Browns had breached the Easement Agreement.
[¶ 9.] South Dakota law recognizes rescission of a written contract in certain cases. SDCL 21-12-1. SDCL 53-11-2 provides for rescission of a written contract “in the following cases only:”
(1) If consent of the party rescinding or of any party jointly contracting with him was given by mistake or obtained through duress, fraud, or undue influence exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such рarty;
(2) If through fault of the party as to whom he rescinds, the consideration for his obligation fails in whole or in part;
(3) If the consideration becomes entirely void from any cause;
(4) If such consideration before it is rendered to him fails in a material respect from any cause; or
(5) By consent of all the other parties.
Id. Since Hanson neither alleged nor provided evidence as to any of the statutory factors, the circuit court correctly concluded that SDCL 53-11-2 did not apply.
[¶ 10.] Consequently, Hanson’s counterclaim for a judgment of rescission is equitable in nature.
See Northwest Realty Co. v. Carter,
[¶ 11.] The circuit court determined that the easement was permanent in nature. The Browns-Hanson Easement Agreement was not limited to a set number of years nor was it contingent on subsequent happenings. In Steele v. Pfeifer, we stated that where,
[t]here is no limitation set out in the terms of the easement or grant, either in years, or upon a happening of a particular event as a contingency ... it has generally been held to be permanent in nature and would continue in operation forever, unless abandoned by non-usе. This is particularly true where words of inheritance are used, (citations omitted).
[¶ 12.] South Dakota law sets forth the conditions of extinguishment. The statute provides: “A servitude is extinguished by the performance of any act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.” SDCL 43-13-12. “The land to which an easement is attached is called the domi
[¶ 13.] For extinguishment to occur pursuant to SDCL 43-13-12, Browns’ “performance of any act” (commercial use of the water) would have to be “incompatible with [the servitude’s] nature or exercise.” SDCL 43-13-12. Since the term “incompatible” is not defined in the statute we rely on its plаin and ordinary meaning. “Incompatible” is defined by the Merriam-Webster dictionary as “incapable of association or harmonious coexistence.” http//: www.merriam-webster.com, last visited December 21, 2007. The express terms of the Easement Agreement limited the water use tо domestic purposes only. Thus, the question is whether Browns’ acts of using the water for more than domestic purposes is “incompatible;” that is, whether it is incapable of association or harmonious coexistence, with the “nature or exercise” of the easement. See id.
[¶ 14.] We have not had an occasion to apply SDCL 43-13-12 to facts involving misuse or overuse of an easement. In
Hofmeister v. Sparks,
the issue involved whether nonuse extinguished an easement.
[¶ 15.] Other jurisdictions with similar statutes have used a severability test to determine whether misuse or overuse extinguishes an easement. California Civil Code § 811 (Extinguishment of Servi-tudes) is identical to SDCL 43-13-12. The California Code provides, “servitude is extinguished ... (3) By the performance of аny act upon either tenement, by the owner of the servitude, or with his assent, which is incompatible with its nature or exercise.”
Id.
California courts interpret incompatibility as follows: “The courts have interpreted this incompatibility as necessitating a
permanent
interference or an аct of a nature such that thereafter exercise of the easement cannot be made without severe burden upon the servient tenement.”
Buechner v. Jonas,
[¶ 16.] In
Halsrud v. Brodale,
the Iowa Supreme Court stated that, “[t]he general rule does not permit forfeitures for a misuse [] of the easement unless it is impossible to sever the increased burden in such a way as to prеserve to the owner of the
[¶ 17.] Here, Browns’ unauthorized use (commercial use of the water) can be severed from the authorized domestic use described in the Easement Agreement. Hanson has not alleged nor shown that his domestic use was disturbed or diminished by the Browns’ unauthorized use, that Browns’ unauthorized use caused a permanent or severe burden on him, or that the residential and commercial uses were “incompatible” under the plain meaning of the term. Consequently, the unauthorized use was not of such a nature that it caused the easement to be extinguished.
[¶ 18.] Based on the determination that Brоwns’ breach of the Easement Agreement did not extinguish the easement, the circuit court entered declaratory judgment that Hanson could not seek rescission as a remedy. We agree and affirm the circuit court on this issue. In conjunction with the declaratory judgment, the court also dismissed Hanson’s counterclaim, which requested rescission. Hanson claims that the court erred when it dismissed his counterclaim sua sponte.
[¶ 19.] “Sua sponte orders of summary judgment will be upheld only when the party against whom judgment will be entered was given sufficient notice and an adеquate opportunity to demonstrate why summary judgment should not be granted.”
Myers v. Tursso Co., Inc.,
[¶ 20.] Hanson based his request for rescission solely on the claim that Browns’ actions extinguishеd the Easement Agreement as a matter of law. Without extin-guishment, Hanson’s request for rescission had no basis. The court’s ruling on the declaratory judgment precluded Hanson, as a matter of law, from succeeding against Browns on his counterclaim for rescission. The evidence regarding the declaratory judgment action did not differ from the evidence Hanson would have presented on his counterclaim. The court considered the evidence in the light most favorable to Hanson. Both actions — the request for declaratory judgment and the countеrclaim — required a determination of whether Hanson was entitled to rescind the Easement Agreement. Once the circuit court determined that Hanson was not entitled to rescind, Hanson’s counterclaim for rescission was precluded as a matter of law. Consequently, the circuit court did not err in sua sponte dismissing Hanson’s counterclaim.
[¶ 21.] Affirmed.