Lewis v. Moorhead

Dorothy Lewis, Dean LEWIS LEWIS, INC., Plaintiffs

d/b/a Appellants, Mary MOORHEAD

Gerald Moorhead,

Ann Defendants Appellees.

No. 18507. Dakota. South April

Considered on Briefs 1994. Sept.

Decided (Moor- Mary

and Gerald and Ann Moorhead heads) Winner, In South Dakota. Dreyer (Dreyer) Cecil was the sole owner of property question. all of the In October year, Dreyer of that entered into an oral agreement with the Moorheads that he would they deed over the lot on which resided exchange for Gerald’s services. To the east fence, of the lot stood a white wooden which portion bordered a approxi- mately length of Moorheads’ residence. parties agreed that the fence line formed the eastern border of the lot. 1981, Dreyer quitclaimed In property, consisting of all of ELot and the West 20' of Dreyer’s Lot A of Septem- subdivision. In 1982, Dreyer ber of sold the remainder of Ray ALot to I. subsequently Risseeuw who sold it to April the Lewises in of 1987. property surveyed Lewises had the discovered that the white fence was not the line, lot wedge enclosed a legal which Lewises had title. The actual approximately line ran 10 feet east of Moorheads’ residence and bisected rent- they al trailer which had moved onto the lot prior sometime to 1974. In Lewises erected a fence across the area which was torn down the Moorheads and subsequently replaced. 1, 1991,

On October Lewises instituted a small seeking compensatory claims action punitive damages tearing for Moorheads down Lewises’ fence. Moorheads removed the small pursu- claims action to circuit court ant to SDCL 15-39-57. Lewises moved to Massa, Paul E. Jensen of Jensen and Win- complaint amend the on October ner, plaintiffs appellants. adding request for a determina- Grossenburg J.M. Grossenburg Law Of- tion. Lewises’ granted motion to amend was fice, Winner, for appellees. defendants and on November 1991 and was filed on No- vember 8. The trial court found for Moor- CALDWELL, Judge. Circuit heads on ownership by their counterclaim of because Lewises failed to Dorothy Dean appeal Lewis from the bring determination action judgment of the trial court which awarded required within twenty year period. property, which the Lewises had title, Mary to Gerald and Ann Moorhead appeal, permis- On Lewises contend that theory of adverse sive of land under an oral contract affirm. right” deed is not “exclusive of dispute This arises over of a such that it ripen posses- into adverse triangular wedge property dividing unity lots sion Drey- because there was of title in (Lewises) Dorothy owned Dean addition, Lewis they er from 1971 until 1981. In boundary by ac- that the doctrine of Proof of the individual elements assert quiescence present questions not alter this conclusion. does fact court, Finally, contend that their amended for the trial while the ultimate conclu Lewises filing sion of are sufficient to complaint relates back consti action, trespass bringing tute adverse is a law. Lien, twenty year limit.1 affirm 478 at 580. suit within the N.W.2d Proof of adverse supported by court. must be the circuit “clear and

convincing” evidence. Id. at 579. The trial findings presumed court’s of fact are correct ISSUE I: ADVERSE POSSESSION findings and we defer to those unless the Dakota, subject property is In South clearly preponderates against evidence them. it has been actu to adverse when Soc., Cuka v. Jamesville Hutterian Mut. 294 ally continually occupied a claim of (S.D.1980). 419, 421 findings N.W.2d Those any right. 15- title exclusive of other clearly will not be overturned unless errone 3-12.2 The claim of title need not be Lien, However, ous. 478 N.W.2d at 580. no instrument, founded on a written but given deference is to the trial court’s conclu question pro land must either have been freely by sions of law which are reviewable tected a “substantial inclosure” or must Kauker, this court. Rusch v. “usually improved.” have been cultivated or (S.D.1991). 496, 499 SDCL 15-3-1S.3 The traditional elements of “actual, possession require open, case, In this the trial court was able visible, notorious, continuous and hostile” oc to see the premises witnesses and view the cupation property statutory question. It determined that clear and con period. Billings vincing supported Estate v. Jehovah Wit evidence the facts that nesses, 138, 141 (S.D.1993); 506 disputed N.W.2d Lien Moorheads’ tract (S.D.1991) Beard, actual, open v. 478 579 had N.W.2d been and continuous from (citing Cemetery Forest Home v. Dardanella October 1971 until October 1991. It further Corp., protected by Fin. 888 found that the Dakota, statutory period In South substantial enclosure and that the Moorheads twenty years. improved property.4 15-3-1. cultivated and 15-6-15(c) provides, pertinent part: occupied following 1. SDCL only: cases or defense Whenever asserted pleading protected by amended arose out of the Where it has been a sub- attempt- inclosure; transaction or set occurrence forth or stantial or original pleading, ed to be set forth in the usually Where it has been cultivated or amendment relates back to the date of the improved. original pleading.... The trial court determined that the earlier tres- 4.Although support either of these elements will pass disput- suit was not an action to recover the possession, we that both claim of adverse find property ed and that the small claims court supported by are the evidence. The jurisdiction lacked to entertain the substance of yard wedge comprised Moorheads’ front and was complaint. the amended it found that upon by their rental trailer. Even encroached Lewises’ claim to real recover their though the white fence did not run the entire twenty year days. missed the limitation a few lots, provide physi- did distance between the it provides: 2. SDCL 15-3-12 determining cal and visual basis for appear Where it shall that there has been an Dutch, line. See v. 161 Wis.2d Klinefelter premises actual continued ("An (App.1991) inclosure any right, a claim of title exclusive of other having purpose physical of out- no exclusion instrument, not founded a written or a side interferences —a mere furrow turned with a decree, judgment, premises actually or plow by cut- around the or a line marked other, occupied, and no shall be deemed to bush, ting away opened a fence so as to or adversely. have been held admit outside disturbers be sufficient under fact, indicate, the circumstances to as a matter of (cita- the boundaries of an adverse claim ...” constituting For an adverse omitted)); Cuka, (a 294 N.W.2d at tions possession by person claiming title not barrier, river, instrument, such as a can fulfill the judg- natural founded a written or ment, decree, statute). to have substantial enclosure element of the land shall deemed addition, when a claim is based Even the court determined title,” doctrine of adverse upon “color of possession had been title. possession presupposes a defective any other claim of title exclusive Hammans, Iowa acquiesced Creel lot line had been that the (1944); City Boat Sioux Club predecessors in inter- and their the Lewises Mulhall, S.D. dispute that the Moor- do not est. Lewises of real estate “Where proper- been in heads have actual, may parol commence in without occupancy ty that their since but assert Sorenson, writing....” Walker any exclusive of other claim. has not been 143, 265 N.W. that Moorheads did not Lewises contend Therefore, Moor- a claim of title exclusive sought specific performance heads could (1) following: right upon the based rather, contract, what was of their oral oral, and original contract for deed was of title the the nature of their claim under frauds; invalid under the statute of therefore circumstances. (2) a contract for deed under in the fact that permissive and not adverse pos of adverse The exclusive test Dreyer unity a of title in both lots maintained physical of is the exclusion others session quitclaim deed. until the 1981 Forbes, right. Labore v. under a claim of (1931). 124, 125 S.D. 238 N.W. Under presumes a claim The first contention law, a contract for deed is South Dakota once a adverse based on defective entered, legal the vendor holds title trust instrument, “color of title.” See written or purchaser obligation an for the to con 15-3-10,15-3-11.5 However, the trial SDCL vey purchase price. upon payment of the claim was Wheaton, court found that Moorheads’ based 473, 113 Tarpinian v. 79 S.D. upon occupancy actual not a written on In addition N.W.2d right, requirements, of claim of and thus the provides agreement an 43-26-1 sell apply. 15-3-12 and 15-3-13 These real binds the seller to execute any require do not written instru conveyance pass sections in a form sufficient to to claim ment or “color of title” order property. to the The vendee under a con required equitable All that is acquires tract for title and the portion right possess property. that the of the land which is claimed the First use and Ass’n, Wick, continuously occupied actually and etc. v. has been Federal Sav. & Loan Lien, (S.D.1982). Thus, party. at un the adverse N.W.2d even deed, purchaser der an oral contract 579. instrument, provides: upon judg- founded ment, a written or a decree, or a land shall be deemed to occupant, appear Whenever it shall or claims, occupied entered into the those under whom he possession have been in the fol- title, premises under claim of lowing cases: any right, founding exclusive of other such (1) usually Where it has been cultivated or upon being a written instrument as improved; question, conveyance premises or (2) protected by Where it has been a sub- judgment competent the decree or of a inclosure; stantial court, and that there has been a continued (3) Where, inclosed, although has been premises possession of in- supply fencing or of timber used for of fuel instrument, decree, judg- cluded in such husbandry, ordinary purposes for the or the ment, part premises or of some of such occupant; use of the premises twenty years, such claim for so single or a lot has Where known farm included shall be deemed to have been held improved, portion partly such farm adversely; except premises that where or lot that have been left not cleared or included consist of a tract divided into lots the according course and not inclosed to the usual possession of one shall not be deemed a lot country adjoining custom of the shall of the same tract. other lot occupied the same deemed to have been SDCL 15-3-11 length part improved and culti- constituting of time as an For the possession by any person claiming a title vated. Lien, parcels. actual equitable claim of title exclusive of between two has a 580; Taylor rights. Tripp, 478 N.W.2d at v. (S.D.1983); Labore, 59 S.D. claim of title to the 125-26; Groves, 238 N.W. at Sullivan Dreyer in recognized by that he allowed 60, 70, 172 (1919); 42 S.D. N.W. 926 Lehman enter, possession, and maintain them to take Smith, 556, 562-63, 168 N.W. 857 conveyed until 1981 when he premises provides This doctrine an evidentia- time, During that Moorheads re- the deed. ry presumption hostility owners, sided on the land as cultivated to a “visible and ascertainable trailer improved it and moved rental onto Lien, boundary” statutory period. Barclay Tussey, at adjoining when 193, 196 Ark. 532 S.W.2d mistakenly land owners assume that a fence Kentucky par- that a Supreme Court of held line forms prop between their ty property claiming a who entered onto erties, acquiesces and the titleholder swap of land could based an oral neighbor’s occupation his assert a claim for adverse even presumed adverse. though agreement was not enforceable of the statute of frauds. The test is Dreyer mistakenly and Moorheads “honestly person enters into that assumed the white fence delineated the that the land possession of land the belief boundary granted between the and retained Clearly, at is his own.” Id. 532 S.W.2d land. The best evidence of the extent of possession Moorheads entered into be- Dreyer’s permission grant is contained his lieving the land to be their own. quitclaim to the Moorheads in the 1981 deed. split opinion there is a as to While The deed transferred the 290.6 feet “[E]ast purchaser whether a under a contract for of Lot E and the West 20 of Lot A” feet adversely deed can hold to the vendor or his subdivision, Dreyer’s survey a interest,6 successors in the trial court found passed through revealed that the lot line acquiescence in a that this ease also involved parties Moorheads’ residence. Both as boundary. accept mistaken Even if we twenty sumed that the additional feet of Lot possession view that adverse cannot be as- grant A would conform the to a deed, for serted under contract the extent consistent with the fence line. permissive occupation use and is deter- grant. mined the terms of the Travis v. posses “It is the intent with which Madden, (S.D.1992).7 717, 493 N.W.2d 719 than an intention to sion held rather hold long recognized that a his deed is eontrol- accordance with require ling[.]” possession. claim for adverse does not in a claim for adverse Stuart, 430, good faith or an belief intention to claim Vrana v. 169 Neb. 99 N.W.2d 770, upon igno Although another’s but can 772 be founded unintentional rance, inadvertence, mistake, product or mistake as to the of a mutual 746, Hamling, during executory 6. See 637 748 would not run Evans v. S.W.2d verse (Mo. 1982) ("A purchaser deed); Barclay Tussey, contract for upon payment contact to deliver a deed of the (attempt S.W.2d at 195 to form an oral contract purchase money vendor.”); adversely cannot claim to his possession permissive for will not make Co., Heelan, Egan Leo Land Inc. v. actually occupied claim of when land is 210 Neb. 685-86 Carter, right); 122 Me. 119 A. Nevells v. (possession by purchaser under a verbal con (1922) (actual grant occupation parol pay tact of sale will not become adverse until may ripen under claim of into adverse see, purchase price). ment of the Clark, But Cook v. possession). (N.D.1985) (even though grantor, period the state was the the time easement, prescriptive 7. Travis dealt with a acquiescence begins to run at time contact possession. analogous which is to adverse entered, for deed is acquiescence if the action to establish use, determining permissive this the extent of pur payment comes after full grant, Reed, at the intent of the which is court looks price); chase Allred v. language (the express best evidenced (Minn.App.1985) validity court found no theory SDCL 43-13-5. that statute of limitations for ad- easement. See also wedge of land to the fence assert that their action falls within the beyond limitations, permission line went precluding any contained Thus, Dreyer’s grant. for adverse presumed hostile under the doctrine of The rationale of the relation back of boundary by acquiescence. amendments rule is to ameliorate effect mistake as the actual line Wright, of statutes of limitations. Miller & persisted during of both Ris- Kane, Federal Practice and Procedure: Civil and, subsequently, seeuw the Lewises. Un- §2d The test under our stat tacking possession, der the doctrine of ute, 15(c), which follows Fed.Rule Civ.Proc. court must determine whether the claimant is whether the claim arose out of the predecessors out of of his transaction or occurrence set forth in the interest have been original claim, or whether the claim states a disputed property during statutory peri- different cause of If action. an amended Walker, od. 265 N.W. at 591. claim raises new and distinct theories of re Here, predecessors Lewises and all of their covery, it original. will not relate back to the mistakenly in interest assumed that Moor- Iowa, Rowen v. Le Mars Mut. Ins. Co. heads’ line extended to the white (Ia.1979); Buysse persisted fence. twenty This mistake Co., Baumann-Furrie & 428 N.W.2d 419 years. findings of the trial court (Minn.App.1988). in an When facts amend clearly are erroneous and the evidence ment state a different cause of action from clearly convincingly supports claim, statute limitations gained conclusion Moorheads have runs to the date of League the amendment. disputed strip through posses- Vanice, 221 Neb. sion. (1985). Here, the matters asserted in Lewis- complaint clearly es’ amended arise out of ISSUE II: RELATION BACK OF the same transaction or occurrence as the AMENDED COMPLAINT original complaint. Thus, small claims The trial court determined that the date of relation back apply doctrine would 8, Lewises’ cause of action was November complaint following amended but for the exc 1991, filing which was the date of the of the eption.9 entry notice of permitting of order complaint. amended Lewises missed "Wherethe relation back doctrine twenty year period by limitations a mat- will jurisdiction, act to extend a court’s its days. ter of Lewises contend that application impermissible. the trial Corp. v. USM permitting LTD., (1st court’s order 21, an amendment to GKN Fasteners 578 F.2d Cir.1978). complaint their relates original their claim for the Lewises’ claim was recovery of brought back to the in small claims court which was filing date of the of jurisdiction small without to determine the bound 15-6-15(c).8 Thus, claims action. See ary dispute. jurisdiction The of a small 6—15(c) that, 8. SDCL knew or should have known but for 15— concerning identity proper a mistake Whenever the claim or defense asserted party, brought the action would have been pleading amended arose out of the against him. attempt- transaction or occurrence set forth or original pleading, ed to be set forth in the Brown, 182, (Tex. 9. See Stone v. 621 S.W.2d amendment relates back to the date of the (an App.1981) complaint adding amended original pleading. changing An amendment description correct of does not state a party against whom a claim is asserted action, therefore, different cause of the amend foregoing provision relates back if the is satis- running ment relates back to toll the and, period provided by fied within the limitations); law for Board him, commencing against party the action City W. & S. Com'rs Mobile v. Mc brought Donald, amendment Ala.App. 322 So.2d 720-21 (1975) (amendment has received such notice of the institu- proper party plaintiff to add tion of prejudiced the action that he will not be relates back to cut short the statute of limitations merits, maintaining possession). his defense on the and the defense of adverse 15-39-45, KONENKAMP, provided J., claims court is not having been a power and does not include the to make the member of the Court at the time this case boundary injunc- determination and issue the submitted, was participate. did not necessary tion for Lewises to recover their Therefore, property.10 there was no relation HENDERSON, Justice, (specially Retired back here. concurring). Although request Moorheads included a answer, have, us, jury for a trial in their which We before was the consideration of a filed on the court not October did “mistaken line” case. SDCL 15-3- permitting file its order the amended com- key 13 is the statute which we must plaint until November 1991. The circuit focus. jurisdiction court determined its over Essentially, they Lewises did not know Lewises arose on that date. “Trial technically “wedge” owned a “sliver” or courts are vested with broad discretion ” survey land completed until a in 1990. amending pleadings.... matter of Jordan unknowledgeable Moorheads were they (S.D.1981) Duprel, 303 N.W.2d had no title to said Andree, wedge. sliver or (quoting, Andree v. (S.D.1980)). promi- sliver land was bounded We will not disturb the ruling always of the trial court unless there has nent white fence which be- an abuse of discretion. Id. lieved marked the eastern A, twenty west feet of Lot and thus their An “abuse of discretion” refers to a “dis prevailed neigh- Peace with these cretion exercised to an end or survey. Spawned bors until the sur- justified by, clearly against, reason and vey, litigation erupted first Gors, Dacy evidence.” court, ultimately legal struggle do not determine wheth justices er the this state with the this Court would have made Lewises Rather, ruling. a like advocating the test is “whether circuit court erred. On Issue mind, judicial II, concur, we believe a in view of fully the law I specially concur on circumstances, reasonably and the could I authority Issue to elaborate on some recent reached that conclusion.” Matter Estate Court, in this majority unmentioned Donahue, (S.D.1990) opinion. of (citing Kressly, Davis v. Biegelmeier, Frank our first Chief Justice (1961)). We do not find that the System, of the Unified Judicial after his re trial court abused its discretion not allow tirement, found himself in a situation almost ing the amendment to relate back to the identical case at hand. he thereby and action cut off the rightfully won his case. See Johnson Bie limitations. The decision of the gelmeier, trial court is affirmed. 409 N.W.2d 379 As I strong precedent believe that case to be for MILLER, C.J., and SABERS case, holding our I it this call AMUNDSON, JJ„ concur. reader’s attention. HENDERSON, Justice, Retired concurs us, As before SDCL 15-3-13 was relied specially. Biegelmeier in the rationale of our

CALDWELL, WUEST, Judge, extremely parallel decision. The facts are Circuit J., disqualified. the case now under consideration. plaintiff damages does debt not claim as dollars; repeal more than four thousand re- amend practice applicable judgments upon uniform rules of to circuit view of such claims when state, magistrate providing courts in this justice requires. simple, inexpensive proce- for dure, informal and Exemplary punitive damages may not be procedure, hereinafter called the chapter, except provid- awarded under this as according determination to the rules of sub- 60-11, chapter chapter ed 22-30A law, stantive of claims in the nature of contract §§ 43-32-6 and 43-32-24. libel, or tort other than slander and in which Biegelmeier’s fence encroached closed fence and he

(cid:127) Johnson’s twenty years. for more than he Biegelmeier possession. established title claimed (cid:127)

land in held, proof, The standard of we Biegelmeier convincing.” Again, “clear and fol- did not have title to the we (cid:127) dispute. quantum proof

land in low the same present case. The fence line at the time Bie- existed (cid:127) gelmeier purchased (Here, the fence line existed be- October, 1971,

fore the date Moorheads possession.)

took Biegelmeier prevailed, although he had

(cid:127) (Johnsons acquired no title to 1979), dispute

the land acres) (2.43 area was en-

Case Details

Case Name: Lewis v. Moorhead

Court Name: South Dakota Supreme Court

Date Published: Sep 14, 1994

Citation: 522 N.W.2d 1

Docket Number: 18507

Court Abbreviation: S.D.