Lammers v. S.D. Game, Fish & Parks

#28808-a-JMK
2019 S.D. 44

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

MICHAEL LAMMERS, Plaintiff and Appellant,

v.

STATE OF SOUTH DAKOTA, BY
AND THROUGH THE DEPARTMENT
OF GAME, FISH AND PARKS, Defendant and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
DEUEL COUNTY, SOUTH DAKOTA
****

THE HONORABLE DAWN M. ELSHERE
Judge

****

MARK V. MEIERHENRY
CLINT SARGENT
RALEIGH HANSMAN of
Meierhenry Sargent, LLP
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.

JASON R. RAVNSBORG
Attorney General

DAVID M. MCVEY
Assistant Attorney General
Pierre, South Dakota Attorneys for defendant
and appellee.

****

CONSIDERED ON BRIEFS ON
MAY 28, 2019
OPINION FILED 07/17/19
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KERN, Justice

[¶1.] South Dakota Game, Fish & Parks (Department) entered Michael

Lammers’s farmland in Deuel County to build a new fence after a survey indicated

that the physical boundaries between their properties did not coincide with the

surveyed boundaries. Lammers filed an action against the Department seeking a

declaratory judgment and permanent injunction. The Department moved for

summary judgment, which the circuit court granted. We affirm.

Facts and Procedural History

[¶2.] Lammers owns and farms two tracts of land in Section 16 of Altamont

Township, Deuel County. Tract 1 comprises the north half of the southwest quarter

and the southwest quarter of the southwest quarter of Section 16. Tract 2 is the

southwest quarter of the southeast quarter. The northwest quarter of the southeast

quarter of Section 16 is owned and maintained by the Department as a game

production area.1 It borders Tract 1 to the east and Tract 2 to the north.

[¶3.] Altamont Township was first surveyed by the United States in 1872.

In 1889, an Enabling Act passed by Congress admitted South Dakota to the Union

and granted the State 3.5 million acres of land, including all of Section 16. Fred

Rabine obtained Tract 1 through purchases from the State in 1947 and 1962. He

obtained title to Tract 2 in 1960. Lammers began farming Tracts 1 and 2 for Rabine

in 1992. He eventually purchased Tract 1 in 2005 and Tract 2 in 2012 from Rabine.

1. The Department owns and maintains other parts of Section 16, but the
northwest quarter of the southeast quarter is the only parcel relevant to this
appeal.

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The State granted the Department land within Section 16, including the land

bordering Tracts 1 and 2, in 1962. The land currently owned and maintained by the

Department has thus been continually held by the State or its agencies since the

original grant from the United States in 1889.

[¶4.] A north-south quarter line in the middle of Section 16 has been

historically recognized by physical markers creating a “fence line.” These markers

include old growth trees, signs posted by the Department, and in recent years an

electric fence. The boundaries are also marked by the differing uses of the land—

with agricultural property separated from the game production area. In 2013, the

Department retained Mack Land Surveying to conduct a new survey of Section 16

as part of a project to replace fences bordering State lands. Sometime in the spring

of 2014, Lammers and other landowners were approached by Department officials

informing them that according to the new survey, the existing boundaries were

incorrect. In September 2016, Lammers received a letter from the Department

informing him that a new north-south fence would be constructed that would move

the border 107 feet west of the fence line to reflect the surveyed boundary, resulting

in Lammers losing 2.5 acres from Tract 1 and 1 acre from Tract 2. Department

officials entered the land previously farmed by Lammers to pound steel posts into

the field to mark the surveyed boundary.

[¶5.] On May 25, 2017, Lammers filed a complaint for a declaratory

judgment and permanent injunction. Lammers requested that the court declare the

boundary to be at the historical fence line. He further argued in his complaint that

his “occupation and use of the property also satisfies the elements of the doctrine of

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adverse possession.”2 Pursuant to his request for a permanent injunction, Lammers

demanded that the Department remove the steel fence posts.

[¶6.] The Department filed a motion to dismiss, arguing that Lammers was

essentially claiming that he had acquired land from the State through adverse

possession and such claim was barred by Article VIII, section 10 of the South

Dakota Constitution.3 Following a hearing, the circuit court denied the motion to

dismiss, finding that although the complaint read “a lot like a complaint for adverse

possession,” there were enough other points raised to indicate a question of fact

regarding the location of the true boundary.

[¶7.] The Department then moved for summary judgment. It first

reiterated its argument that because the surveys indicated that these lands were in

fact owned by the Department, there was no way Lammers could obtain these lands

through adverse possession. Furthermore, it maintained that none of the surveys of

Section 16 indicated that the north-south quarter line established in 1872 was

consistent with the fence line. Lammers argued that a material issue of fact existed

regarding the proper location of the boundaries in Section 16 since the original

2. “Adverse possession occurs when there is (1) an occupation that is (2) open
and notorious, (3) continuous for the statutory period, and (4) under a claim
of title exclusive of any other right.” Underhill v. Mattson, 2016 S.D. 69,
¶ 11, 886 N.W.2d 348, 352.

3. Lammers argued in his complaint that because the parties had acquiesced to
the location of the boundaries since at least 1947, the existing boundary
should be declared the legal boundary. The doctrine of acquiescence provides
“an evidentiary presumption as to the element of hostility [of adverse
possession] and applies even though the occupancy occurred due to ignorance,
inadvertence, or mistake, and without an intention to claim the lands of
another.” City of Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 22, 607 N.W.2d
22, 28.
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corner markers used to create the 1872 survey no longer existed. The original

corner markers were charred oak stakes driven into dirt mounds. They have since

been obliterated—meaning lost—so subsequent surveyors have used collateral

evidence to locate the section corners. Lammers maintained that the historically

recognized boundaries were the best available evidence of true boundaries. The

parties submitted several key surveys into evidence, including the original 1872

survey, two surveys by Wayne Haug (one undated and one from 1996), the Mack

survey from 2013, and an Aason Engineering survey from 2016.

[¶8.] The circuit court heard oral argument from the parties at a hearing on

September 24, 2018. It issued a memorandum opinion on September 27, 2018,

granting summary judgment to the Department. The court concluded that

Lammers’s argument was based in part on a claim of adverse possession against the

State which was precluded under the South Dakota Constitution. It also

determined that the surveys, patents, and property descriptions showed that there

was no genuine dispute of material fact regarding the disputed boundaries. The

court entered findings of fact and conclusions of law on October 11, 2018.4

Lammers appeals, raising one issue:

Whether the circuit court erred in granting summary
judgment to the Department.

4. Although the court entered findings of fact and conclusions of law, in a
summary judgment proceeding “findings of fact and conclusions of law [are]
unnecessary.” Bergin v. Bistodeau, 2002 S.D. 53, ¶ 25 n.2, 645 N.W.2d 252,
257 n.2; SDCL 15-6-52(a). This is because in such a proceeding, the question
is “whether or not there is a genuine issue of fact. It does not contemplate
that the court shall decide such issue of fact, but shall determine only
whether one exists.” Id.
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Standard of Review

[¶9.] “We review a circuit court’s entry of summary judgment under the de

novo standard of review. When conducting a de novo review, we give no deference

to the circuit court’s decision to grant summary judgment. When reviewing a circuit

court’s grant of summary judgment, this Court only decides whether genuine issues

of material fact exist and whether the law was correctly applied.” Larimer v. Am.

Family Mut. Ins. Co., 2019 S.D. 21, ¶ 6, 926 N.W.2d 472, 475. “We view the

evidence most favorably to the nonmoving party and resolve reasonable doubts

against the moving party.” State Auto Ins. Cos. v. B.N.C., 2005 S.D. 89, ¶ 6,

702 N.W.2d 379, 382. The party resisting summary judgment must present

“sufficient probative evidence that would permit a finding in her favor on more than

mere speculation, conjecture, or fantasy.” Schaefer v. Sioux Spine & Sport, Prof.

LLC, 2018 S.D. 5, ¶ 9, 906 N.W.2d 427, 431. “[M]ere general allegations and

denials which do not set forth specific facts will not prevent the issuance of a

judgment.” Bordeaux v. Shannon Cty. Schs., 2005 S.D. 117, ¶ 14, 707 N.W.2d 123,

127.

Analysis

[¶10.] An original government survey conducted under the laws of the federal

government by its official agency creates boundaries which are unchangeable and

control boundary disputes. Titus v. Chapman, 2004 S.D. 106, ¶¶ 17-18, 687 N.W.2d

918, 924. Subsequent surveys by private individuals are more aptly described as

“retracings” or “resurveys.” Id. ¶ 18, 687 N.W.2d at 924. In resurveys, surveyors

must “take care to observe and follow the boundaries and monuments as run and

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marked by the original survey.” Id. “Where the original monument is obliterated,

that is it cannot be located nor established by evidence, then a corner can be

established by a new survey.” Id. ¶ 19, 687 N.W.2d at 924; see also SDCL 43-18-7

(“In retracing lines or making the survey the surveyor shall take care to observe

and follow the boundaries and monuments as run and marked by the original

survey[.]”).

[¶11.] Lammers maintains that this case is not about adverse possession—

instead it is about the proper legal boundary between his land and the land owned

by the Department as established by the original 1872 government survey. He

argues that there are conflicting surveyor opinions in the record regarding what is

proper collateral evidence of the original section markers, creating a genuine issue

of material fact precluding summary judgment.

[¶12.] In support of his assertions, Lammers cites the opinion of Emmett

Kotrba, a registered land surveyor who visited Lammers’s property and reviewed

the 1996 Haug survey. Kotrba did not conduct his own survey but opined in a letter

written to Lammers’s counsel that “all of the survey marks now in place were NOT

IN PLACE when the land was patented in 1947. However, all evidence both

physical and parole show that the now existing boundary between the [Department]

and Mr. Lammers DID EXIST at the time of the patent.” Kotrba further stated

that fences are acceptable as the best available evidence when original markers are

unavailable. Because, Kotrba asserted, that the Haug survey established that the

south end of the fence was positioned at the south quarter corner—or midpoint of

the southern border of Section 16—he concluded “that the established existing fence

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has been accepted as the boundary between the [Department] and Mr. Lammers.”

Lammers argues that because the Department surveyor used the now existing

roadways—not the fence line—as a basis for establishing the boundary lines, there

is a genuine dispute of material fact regarding the proper position of the north-

south quarter line.

[¶13.] The Department contends that Lammers has inaccurately asserted

that there are competing surveyor opinions. It argues that Lammers has not

submitted any evidence indicating that later surveys deviate from the boundaries

set in 1872. It also asserts that there is no evidence supporting a finding that the

fence line represents the true boundary; rather, it argues that all evidence shows

that the fence line deviates from the true boundary by missing the center of the

section by 107 feet to the east.

[¶14.] A review of the various surveys in the record reveals no disputed

material facts concerning the boundary between Lammers’s and the Department’s

land. The original 1872 survey created by the U.S. government sets forth the

rectangular section and quarters typical for the system of Rectangular Surveying

described in the 1868 Manual of Rectangular Surveying employed to survey public

lands. There is no indication that the north-south quarter line deviates from the

center of the section towards the east, nor does it show a fence line as a boundary.

[¶15.] The next survey of Section 16 is the Haug survey from 1996. The

survey focuses upon the southwest quarter but does show a straight north-south

quarter line. It does not depict the quarter line deviating to the east. It also does

not illustrate a fence, but it does show, as Kotrba pointed out, that the south

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quarter corner is located where the south end of the fence is now situated.

Lammers also introduced another, undated, Haug survey of a tract of land within

the northeast quarter of the northwest quarter. The survey shows the location of

the north quarter corner and indicates a straight boundary extending south from

the corner.

[¶16.] The first survey to show the fence line was the 2013 Mack survey

obtained by the Department. This survey reflects straight section and quarter

lines. It shows the north-south quarter line on each end of Section 16 starting at

the same north-south point as the established fence line, but then depicts the fence

line drifting eastward from the north-south quarter line at the center. Lammers

then retained Aason Engineering in 2016 to complete a survey of Section 16. The

2016 survey shows the same straight section and quarter line boundaries as the

2013 Mack survey. It also expressly notes that while the fence line intersects with

the north and south quarter corners at the midpoints of the northern and southern

borders of the section, it deviates from the center of the section by 107 feet to the

east.

[¶17.] The surveys from 1996, 2013, and 2016 are consistent with the 1872

survey and show the same corners for Section 16 and a straight north-south quarter

line which does not deviate from the center of the section.5 While the corner

markers used by the U.S. government to create the 1872 survey no longer exist, the

5. Additionally, the abstract of title and patents for Tract 1 only use legal
descriptions of the property and do not reference fence lines or boundaries
other than those used in the original survey description.

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2009 Bureau of Land Management Manual of Surveying Instructions produced by

the U.S. Department of the Interior sets forth methods for locating obliterated

section corners using collateral evidence such as roads, fences, or other signs of use

or occupancy.6 Once section corners are set, a system of proportionate

measurement may then be used to set quarter lines within the section. The

Department argued to the circuit court that all the experts—the two surveyors

retained by Lammers and the Department’s surveyor—agreed that quarter lines

are generated by finding the midpoint of each section line and connecting the

midpoints to draw straight lines running north-south and east-west. Lammers has

not pointed to evidence suggesting a dispute regarding this method of setting

quarter lines.

[¶18.] While Lammers argues that there is a genuine issue of material fact

regarding the proper position of the boundaries based on different methods for

locating the missing section corners, he fails to point to evidence beyond mere

speculation suggesting that any of the survey techniques used by the various

surveyors of Section 16 resulted in misidentified corners. Rather, all the surveys,

including his own, identify the same section lines and midpoints for the quarter

sections. Lammers fails to provide evidence of a genuine disagreement about where

the true corners or section lines are located, or the methods used by the surveyors to

set the missing corners.

6. Chapter 6 of the manual on resurveying techniques was introduced into
evidence.

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[¶19.] Taken together, all the surveys, as well as Kotrba’s expert opinions,

show that while the fence line was historically recognized as the north-south

quarter line by those owning property in Section 16, it, in fact, did not mark the

controlling surveyed boundaries established by the United States in 1872. The

evidence is undisputed that the fence line intersects with quarter corners on the

north and south, but drifts from the true north-south quarter line in the center of

the section and encroaches on the Department’s land.

[¶20.] Because Lammers has not demonstrated a genuine issue of material

fact regarding the true position of the boundaries in Section 16, the evidence of

historically recognized boundaries and his use of the property does not advance his

claim. There is no dispute that the land owned by the Department has been held by

the State or its agencies since the original grant from the United States in 1889.

Article VIII, section 10 of the South Dakota Constitution provides that “[n]o claim to

any public lands by any trespasser thereon by reason of occupancy, cultivation or

improvement thereof, shall ever be recognized; nor shall compensation ever be made

on account of any improvements made by such trespasser.” Based on a plain

reading of this constitutional provision, a citizen may not take land from the State

through adverse possession. See Doe v. Nelson, 2004 S.D. 62, ¶ 9, 680 N.W.2d 302,

305. Additionally, we have already recognized that individuals may not obtain

prescriptive easements—the non-possessory equivalent of adverse possession—

against government property. Steiner v. Cty. of Marshall, 1997 S.D. 109, ¶ 23,

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568 N.W.2d 627, 632.7 Since Lammers cannot claim the land based on his

occupancy and cultivation of the land or historical acceptance of the boundary, the

fence merely represents a mistaken intrusion onto the State’s property. The circuit

court did not err in granting summary judgment to the Department.

[¶21.] GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices,

concur.

7. Akin to adverse possession, “to claim the benefit of an easement by
prescription, a person must show open, continued, and unmolested use of the
land in the possession of another for the statutory period. The statutory
period for prescriptive easements, like that for adverse possession, is twenty
years.” Steiner, 1997 S.D. 109, ¶ 18, 568 N.W.2d at 631.

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