Brusseau v. McBride
245 N.W.2d 488
S.D.
1976
Check Treatment

*1 is whether SDCL 35-6-27 35-4-78 Kathryn safety. for reasons of I am Daniel

were enacted J. BRUSSEAU and D. Brusseau, Appellants, Plaintiffs and they agree fully convinced that were and in Waynick with the statement of the court Store, Chicago’s Department supra, Last al., Ed McBRIDE et Defendants pages at 325-326: Respondents. making “The Illinois act unlawful No. 11758. liquor any of alcoholic intoxicated sale Supreme Court of South Dakota. person protection any is for the mem- might injured be ber of the who Sept. 1976. damaged aas result of the drunkenness sale which the of alcoholic liquor Obviously plain- contributes.

tiffs in the case at bar are entitled to the 131 of

protection given by the Illinois § Act.” that a I would hold cause of action was very presence of created 35-6-27 §§ and 35-4-78 in the Dakota Codified

Laws.*

Had this cause of action not been dis- missed, plaintiffs would still face substan- legal

tial factual and obstacles before monetary recovery ap- could be had. It

pears very grave questions that there are

presented concerning causation and contrib- However,

utory negligence. ques- these are tions which are not for consideration at this my

time. It is belief that state a pleadings cause of action in their day be allowed to “have their should court.” I would reverse the order of the dismissing this

circuit court case. I am authorized to state Justice joins in this dissent. WINANS * issues, covering good page all of the Wis.2d 176 N.W.2d For a statement at suggest reading joined the dissent Chief which was I would Justices Wilkie and Hargrove, Heffernan. Justice Hallows in Garcia *2 McCullen,

George Bangs Bangs, A. of Butler, Simmons, Foye Rapid City, plaintiffs appellants.

Lynden Levitt, Rapid City, D. for defend- ant and Ed respondent McBride. Sieler, Julius F. of Sieler Sieler & Trim- ble, Rapid City, respon- for defendant and dent Bies. Harold Kellar, A. P. Kellar, Fuller, Fuller of Furze, Lead, Amundson & for defendant respondent Homestake Forest Products Company. Coacher,

William Atty., H. State’s Meade Sturgis, County, respon- for defendant and dent, County.

ANDERST, Judge. Circuit appeal declaratory is an from a

judgment action determine the existence or nonexistence of a road over the parties herein. judgment declaring From a the road to have been under law dedicated common principles, irrevocably and to use along length, its entire appealed. We reverse. “[ejonduct

Our law is settled that on part expres owner that is usually sive of an intention dedicate dedication, amounts upon by acted if clearly justifies in a manner which acceptance.” of an Larson the-inference Co., Chicago, Ry. M. & St P. 19 S.D. legislature, pre 35. The vent pub the establishment of highways on user, private lic and Ch. enacted 31-3-2) (now gain hunting road to access to fishing Laws of reads: areas. which any route public of by the mere use “[t]he Until the road in awas private or along or across travel outcroppings, trail with rock mudholes and any railroad land, way of right of or the survey plat No has ever been washes. *3 operate not period, shall company for road, made the court and did find right and no highway public to establish a not disclose the and the evidence does exact by any person shall inure to road, present location of the its width or such use thereof.” length. The facts do disclose that over the Investment Realty & in Roche This court years the location of the road has varied 1912, 169, Co., Highlands S.D. v.Co. moved. Most has been times its loca- 684; Christ, First Church of Scientist depended upon tion the weather and the 674; 377, Revell, 1942, 2 N.W.2d 68 S.D. v. conditions. Travel was across the easiest 394, 1942, 68 3 N.W.2d Lacey S.D. route. and most accessible Heiserman, 1949, 72 115, and Stannus 1970, respondent In December McBride 130, held that mere has 38 N.W.2d purchased 360 acres at the end of the road. an inference of im- will not user “ * * * parcel parts He sold to various indi- dedication. plied [W]hat viduals, of whom built homes on this some by implication de- to a dedication amounts families, property. These some with chil- case, facts of pends upon the dren, continuously have used the road rule can be laid down no hard and fast City daily moving on a basis since in. After courts.” Evans guide for the

as 170 N.W. 133. Brookings, purchasing property, 41 S.D. McBride met with County the Meade Commissioners to ask J. Brusseau and plaintiffs, Daniel The their in rebuilding assistance the road. Brusseau, the owners of a Kathryn D. are Thereafter, They January refused. land, 10-acre, tract of de- 660-square-foot McBride, asking permission from quarter southwest scribed as the anyone, began to quarter northeast reconstruct road. The quarter of the southwest north, 9, township range generally reconstruction followed the then of section Meridian, County, South existing except change Black Hills road for a minor runs from The road Dakota. passed through proper- where it Homestake road, in Pen- public highway the Nemo ty. change This was made after consulta- Dakota, across nington County, U.S. employee. tion with a Homestake Also land, across Homestake For- Forest Service time, during this McBride had a conversa- land, Company enters est Products Ausmann, tion with one Mr. Leo the then property near the southwest cor- property, owner of the Brusseau at which thereof, in a northeaster- proceeds then ner time Mr. Ausmann told McBride this was a “ direction, twenty passing approximately ly glad you get road and ‘I’m to have ” house, exits the east of the Brusseau feet to During me out of the mud.’ reconstruc- near the northwest cor- Brusseau land tion, gate placed by an old Bies where the thereof, a corner of Harold Bies’ ner crosses road entered his was removed. land, angles northwest across more then approximately This reconstruction took Company Products Homestake Forest months, outlay four with a total McBride or it enters land owned Ed until $10,432.36. McBride of Rolling Hills Cor- corporation, his controlled In the summer of Brus- several families who have poration, purchased seaus their tract of land from the The road is the land from him. Leo Ausmann estate. The families in the ingress egress for only access route Rolling Hills area continued to use the road except passa- trails that are these families continuing daily having on a basis. After good weather in four-wheel- only in ble examination, title the Brusseaus found no gen- members of the vehicles. Some drive eral, showing time used the easement of record the road across public have from time to Accordingly, posted alleged highway their was originally estab- property. stating across their signs pursuant road by proper lished to law authori- dug through a ditch private. They also ty, because statute expressly declares placed rocks and boulders on rights that ‘no or benefits shall inure to law- impassable. the road make or any individual’ the use of asking for a was then initiated declara- suit such a ‘road’ or ‘way’ as the one involved tory judgment. in this action. plaintiff’s claim of a prescriptive right to travel across the de- Respondent, Forest Products Homestake precisely fendant’s land is such a claim as denied was a Company, in its answer the statute was designed defeat.” Bies, road, respondent, as Harold Brus- witness stand. from The principle pronounced in First seaus, also claim the road was never dedi- *4 Christ, Revell, Church of Scientist supra, County has public. to the cated quoted wherein we approval with the words expended any money for maintenance never of the North Dakota Court in Cole v. Min equipment the of its has of road and none Co., nesota Loan & Trust 17 N.D. 117 in its or been utilized maintenance ever N.W. Ann.Cas. applicable is repair. here as follows: Findings of fact should not be set “ ‘ “[Ojwnership of once land had is not to erroneous, re clearly unless and due .aside presumed with; be to parted have been given opportunity should to the of gard be but the acts and relied declarations on to judge credibility trial court the of the the to show a dedication unequivocal should be However, 15-6-52(a). witnesses. decisive, and manifesting positive a and do not share the view of the trial court we intention, part unmistakable on the of the an either that these facts inference owner, to permanently prop- abandon his to property that owners of the intended specific erty public to they use. If roadway use, public this to or dedicate that are equivocal, clearly or do not plain- and public accepted such a dedication. ly indicate his to permanently intention This road was established main and abandon the property public, to for by property tained the affected owners are not sufficient to establish a dedica- and until Up their own mutual benefit use. The tion. intention to dedicate must time McBride his appear, such though intention sites, began selling building and traffic deed, words, shown may by by be or acts. past the road then on and words, If by the words must be unequivo- light sporadic. Ausmann homes was and cal, ambiguity. acts, and without If by Heiserman, this court said in Stannus v. As they must be such are acts as inconsistent supra: acquies “Because there has been any construction, with except the assent owner, adjoining in its user ’ ” by cence an to such dedication.” others, some by opinion does in our deeds, unequivocal We find no such words yield public an to manifest intention acts in facts herein. Further, Realty in the case of Roche use.” The trial court further found that Co., Highlands supra, Investment Co. public accepted prior had this road to any court stated: this attempted is revocation. It conceded the that, “It conclusively shows when the dedicated, never formally and the began traveling across the is undisputed evidence that Meade County defendant, by now owned it was nor other any at time body ever unoccupied prairie; that different routes expended any public construction, funds were sea- traveled at different times and sons; repair road, or maintenance of the nor inception and that of travel any ownership claimed or control right. was without claim or color of Such thereof. travel, As though Lacey supra, continued for more than 20 we said which “ years, presumption apropos case, cannot create is in this ‘Because City Brookings, of Evans v. of The case is claimed dedication acceptance seems to of the by members solely on user based up position sum the of court on the record fails hold that public, we * * statement: “what dedication with this implied dedication an establish implication by amounts to a dedication de- friendly is still Dakota case, pends upon facts of our farmers Most neighborly state. fast rule can be laid down and no hard and * * well as neighbors, as their allow ranchers courts *.” The guide as a for the fishermen, campers, hunters and sportsmen, applicable here are those questions involved seekers, free and unlimit and artifact fossil ac- by public of a road use to dedication Many property. their upon to and ed access the owners of the quiesced are hunting areas fishing of our finest fifty the road over a of traversed private only across and accessible the trial pertinent findings of years. friendliness, many spirit property. In court state: from their gates removed landowners (sic), prede- are the “That Leo Ausman cattleguards with replaced them fences in interest the land now owned cessor even Others have allow easier access. considered the road to be dam, graveled the roads to a improved (sic) public and the Leo Ausman said allow fishing area. To hunting or dugout, and consider- publicly state this intention *5 property 1971; such roads mere user of ation in and that the said Leo would de did, dedication (sic) living while on the blossom Ausman goodwill harmony this stroy much of now owned con- revealing This was in a manner his and landowners. duct himself users between statute, subject the belief and intention that why reasons such of the one Mr. Ed McBride public. was That in 1971 31-3-2, passed and still initially was substantially improved the condition of not landowner did law so that a remains the im- question the road in and that such as the consequence to fear such objec- the provement was made actions. neighborly result of his any persons parties across tion original in his McBride Respondent whose land road traveled.” affirmative claims raised the answer also support findings These seem sufficient We feel that estoppel. easement judgment of a dedication of a cited prior holdings and cases facts and our Thus, supported by road if the evidence. such claims. We therefore justify do not the issue before this court is whether there drawing erred in the trial court hold that support findings is evidence to of the pub ato implied inference of dedication an clearly erroneous rule. court under the trial roadway. lic use of indicated, duty As we have it is the whether trial court is re- court on review to determine there of the judgment the trial court’s find- is evidence versed. Chicago, Burlington Quincy Rail- ing. Wheaton, 1957, 76 80 road Co. v. S.D. COLER, JJ., concur. WOLLMAN 868; Dickey, Martindale v. 72 N.W.2d WINANS, J., DUNN, J., dissent. C. N.W.2d 140. S.D. question begins in at the Nemo The road ANDERST, sitting as a Circuit road, crosses Forest Service land for U.S. member of Court. yards, Homestake Forest several hundred approximately Products land for one-half ZASTROW, J., having been a mem- not mile, proper- touches one corner Bies case was at the time this ber of the Court property for some ty, crosses the Brusseau argued, participate. did not orally yards, proceeds and then to traverse DUNN, (dissenting). Chief Justice and other further Homestake involved in this lawsuit. judgment. I would affirm Leo Ausmann, death in Febru- heard Ausmann refer to before his this road as Leo being public. in ary of and Brusseau where both Bies many years evidence, In view of this I cannot con- during when reside now clude that the trial findings court’s were either or did not occur. dedication erroneous, and I would affirm. Mr. Aus- testimony regard Thus I am authorized to state that Justice during and actions his mann’s statements joins WIN AN S in this dissent. arriving important become more lifetime conclusion. at a factual that Leo Ausmann

Ed McBride testified told him that he considered to be a had improvement welcomed public road and ” “ ‘get out of the mud.’ of the road to [him] standing alone is considered testimony testimony” by “weakest kind of al., Marvis HOGEN et Mahan, 1963, Mahan v. courts. Plaintiffs-Appellants, However, there were sev- 121 N.W.2d 367. things testimony eral that made this more SOUTH DAKOTA BOARD OF all, STATE First of Leo Ausmann conced- credible. al., et TRANSPORTATION any objection made to the use of edly never Defendants-Respondents. lifetime; public during his the road any objection when the road he never made No. 11877. improved right by his home or being Supreme Court of South Dakota. began using when several families the road McBride sold homesites on his land. after Sept. 1976. Mr. Ausmann built his house where Mr. *6 Rehearing 21, 1976. Denied Oct. give easy Brusseau now lives to access to this road. Mr. Brusseau a home- of ten acres from Leo Ausmann

site about same time that McBride sold homesites just up further the road. He is one of a group depends get on the road to from his homesite to the Nemo road. I am cer- spread dig

tain that he will not rocks or ditch across this access between his home- and the Nemo

site road. testimony is also bolstered further employed by Mr. McGrath who had been actually Homestake since 1954. Homestake being has more land crossed this road party. than other stated that McGrath Homestake and others had used the road consistently, if the entire intermittently, obtaining permission from

anyone, and he be a considered road. Bies, and Da- testimony Ausmann) (son

mon Ausmann Leo does McBride, not contradict the statements they never although they did state that