Turgeon v. City of Spearfish

#30888-aff in pt & rev in pt-JMK
2026 S.D. 22

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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LESLIE TURGEON and
KAREN TURGEON, Plaintiffs and Appellants,

v.

CITY OF SPEARFISH, a municipal
corporation, Defendant and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA

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THE HONORABLE MICHELLE K. COMER
Judge

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NATHAN R. CHICOINE of
DeMersseman Jensen Tellinghuisen
& Huffman, LLP
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.

RICHARD M. WILLIAMS
AIDAN F. GOETZINGER of
Gunderson, Palmer, Nelson
& Ashmore, LLP
Rapid City, South Dakota Attorneys for defendant and
appellee.

****

CONSIDERED ON BRIEFS
JUNE 2, 2025
OPINION FILED 04/08/26
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KERN, Retired Justice

[¶1.] Leslie and Karen Turgeon own real property in Spearfish, South

Dakota, which is only accessible via the Thoen Stone Road (the Road). The Road

was created via an easement and right-of-way to access the Thoen Stone

Monument, a historic marker that memorialized the discovery of gold in the Black

Hills in 1834. The City of Spearfish (the City) owns the Thoen Stone Monument

and the land surrounding it, which is operated as a city park. The Road has a

locked gate at the northern entrance, which has existed for over forty years. The

City provided the Turgeons with a key to the gate, which the Turgeons claim

occasionally malfunctions, preventing their access to the Road.

[¶2.] The Turgeons brought this declaratory action seeking a determination

that the Road is a public right-of-way. They assert that an injunction should be

issued requiring the City to remove obstructions that prevent their use and the

general public’s use of the Road. They also assert that the City should be prohibited

from placing or maintaining a gate across the Road. On the parties’ cross motions

for summary judgment, the circuit court determined that the Road was not

dedicated for public use until 2012, but that the City never accepted the dedication.

The court, therefore, granted the City’s motion for summary judgment and denied

the Turgeons’ motion. The Turgeons appeal. We affirm in part, reverse in part, and

remand for trial.

Factual and Procedural Background

[¶3.] The Thoen Stone was discovered on Lookout Mountain in 1887. It

recounts the story of gold prospectors who traveled to the Black Hills in search of

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gold in 1834, forty years before the Black Hills Gold Rush. A replica of the Thoen

Stone, the Thoen Stone Monument, now sits at the end of St. Joe Street in Spearfish

and is accessible via the Road.1

[¶4.] Access to the Thoen Stone Monument was created in 1953 when Frank

Thomson granted an easement and right-of-way to the City, the Thoen Stone

Committee, and the State of South Dakota Historical Society (the 1953 Easement).

The easement provided:

That for and in consideration of the payment of One Dollar
($1.00) and other valuable consideration, the receipt of which is
hereby acknowledged by the Party of the First Part, and the
covenants and agreements hereinafter contained, the Party of
the First Part does hereby Grant as Easement unto the Parties
of the Second Part, jointly as joint tenants, an easement, Right-
of-Way and privilege to establish a historic marker and
Museum, including other Black Hills Historical events, of the
Thoen Stone for public display, on the land near the City of
Spearfish in the County of Lawrence, State of South Dakota,
described as follows, to-wit:

A knoll of ground containing about two acres, situated in
the Southwesterly part of the SW1/4NW1/4 of Section 15,
in Township 6, North of Range 2, East of the B.H.M.,
together with the gravelled [sic] road right-of-way (25 feet
wide), leading to the top of the knoll of ground, and
subject to the Homestake Mining Company’s powerline
right-of-way, and more particularly described as being
bounded on the West by the West side of the Homestake

1. Although not contained in the record, the following information is of
significant historical interest. The stone slab, dated 1834, recounts the story
of Ezra Kind and his companions who traveled to the Black Hills in search of
gold. The marker calls into question the date of the first discovery of gold in
the Black Hills, which was previously thought to be 1874 after the Custer
Expedition and the subsequent gold rush.

The stone, which was buried several feet below the surface, was discovered in
1887 by Louis Thoen on Lookout Mountain in Spearfish. The original stone
is located in the Adams Museum and House in Deadwood. The replica sits
above Spearfish at the end of the Thoen Stone Road east of town.
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Mining Company’s powerline right-of-way, and on the
South by the Ward’s farm and on the East of the foot of
the grassy hill and on the North by the gravelled [sic]
road as now situated, thereon, together with the right of
ingress and egress upon said above described land.

The 1953 Easement also stated that if “the Homestake Mining Company, or their

successors in interest, should permit a suitable site to be selected on the spot where

the Thoen Stone was originally found for display to the public, it is understood and

agreed between the Parties hereto that the site herein granted and conveyed shall

revert to the Party of the First Part, his heirs, executors, administrators and

assigns.”

[¶5.] In 1971, Thomson subdivided the property by plat, creating three

lots—37A, 37B, and 37C. The plat was recorded with the Lawrence County

Register of Deeds. That same year, on November 30, Thomson and the City entered

into an agreement (the 1971 Agreement) under which Thomson transferred Lot 37A

to the City. The 1971 Agreement set forth certain purposes and conditions,

including that Lot 37A “known as the Thoen Stone Land, is to be used by the City of

Spearfish exclusively for use as a City Park and for the enjoyment and historical

interest centered around the Thoen Stone by the citizens and visitors to Spearfish,

South Dakota.” The 1971 Agreement also stated that “if Lot 37A were not

developed or used as a city park or if the City were to abandon it as a city park, the

property would revert to Thomson, his heirs, executors or assigns.” The 1971

Agreement provided for access to Lot 37A by granting a “right-of-way for ingress

and egress to said property over the existing roadway, more particular[ly] described

as follows, it being agreed that such right-of-way shall be maintained by the City of

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Spearfish and shall not be fenced, and further if said City Park is abandoned by the

City of Spearfish, said right-of-way shall revert to the Seller, his heirs, executors or

assigns.” (Emphasis added.) This roadway began at the north boundary on Lot 37A

and ended at the south line of Lot 37C.

[¶6.] Thomson executed a warranty deed, dated December 1, 1972,

conveying Lot 37C-2, a subdivision of Lot 37C, to the City (the 1972 Warranty

Deed). The conveyance was “for the use and purpose of maintaining a road to

provide access to the Thoen Stone Monument Road.” The warranty deed also stated

that in “the event this property should cease to be used by the grantees for the

purposes set forth above, the property conveyed is to revert to the grantor, his heirs,

executors and assigns.”

[¶7.] Finally, in 2012, the owners of property over which the previously

existing Thoen Stone Road ran or abutted, including the City, filed a revised plat

(the 2012 Plat), which created Lots 37A-1, 37A-2, 37B-1, 37B-2, 37C-2, and

dedicated the Thoen Stone Road as a 70-foot “PUBLIC RIGHT-OF-WAY.” There

were no restrictions on how the public right-of-way could be used. When comparing

the 1971 and 2012 Plats, the Road, as depicted on the 2012 Plat, appears to be

extended farther to the north and south onto Lots 37A and 37C. The 2012 Plat was

approved by the City on November 1, 2012. In its certification of ownership and

approval of the 2012 Plat, the City stated the 2012 Plat “was done at the City’s

request for the purposes indicated hereon.” (Emphasis added.)

[¶8.] The Turgeons own property near the Thoen Stone Monument and they

must use the Road to reach their property. The northern entrance of the Road is

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secured by a locked gate, which has been in this location for at least forty years.

The City issued keys to the gate to certain individuals, including the Turgeons, to

allow them to access their properties that are adjacent to the Road. On occasion,

the Turgeons’ key to the gate has not worked properly, preventing them from

unlocking the gate.

[¶9.] It is the presence of the locked gate that is the impetus for the

Turgeons’ declaratory action, which they filed by complaint dated February 1, 2023.

The Turgeons claim the gate is an unlawful obstruction of the Road, which they

claim is a public right-of-way. The Turgeons allege the Road “was expressly

dedicated as a public right-of-way by instrument since at least November 1, 2012,”

and that the City had “a contractual obligation to keep and maintain the Thoen

Stone Road for the public’s benefit to permit access to the Thoen Stone Monument

located at the southern end of the road.” The Turgeons sought a declaration that

the Road is a public right-of-way, an order requiring the City to remove obstructions

from the Road, and an injunction preventing the City from maintaining a gate

across the Road “that obstructs or prevents” the Turgeons and the public from

accessing and travelling on the Road.

[¶10.] The City denies that the Road is a public highway and argues that

while the 2012 Plat expressly dedicated the Road for public use, such dedication

was never accepted by the City, either expressly or by implication. The City also

argues there was no dedication of the Road as a public highway in the 1953

Easement, the 1971 Agreement, or the 1972 Warranty Deed.

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[¶11.] The parties filed cross motions for summary judgment, and a hearing

was held on September 9, 2024. The circuit court issued its ruling at the hearing,

determining there were no disputed issues of material fact and concluding that none

of the documents prior to the 2012 Plat show an intent by Thomson to dedicate the

Road for use as a public highway. But the court determined the 2012 Plat did show

“an unequivocal dedication of the Thoen Stone Road as a public highway.” The

court held, however, that there was no express or implied acceptance of that

dedication, concluding:

The City provided limited maintenance on [the Road]
commensurate with the maintenance of [the Road] for
pedestrian access to a public park, but has further limited access
by means of posted park hours, and has prevented unrestricted
vehicular travel by means of a locked gate for over forty years.

(Emphasis added.) The court also found the existence of the gate was the

“antithesis of public use.” Accordingly, the court granted the City’s motion for

summary judgment and denied the Turgeons’ motion, effectively denying all of the

Turgeons’ requested relief.

[¶12.] The Turgeons appeal, claiming the circuit court erred in concluding

that the City did not accept the dedication of the Road as a public right-of-way.

Standard of Review

[¶13.] “Our rules for reviewing the entry ‘of summary judgment under SDCL

15-6-56(c) [are] well settled.’” Estate of Olsen v. Agtegra Coop., 2024 S.D. 39, ¶ 12, 9

N.W.3d 763, 768 (alteration in original) (citation omitted).

Summary judgment is proper where, the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to

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judgment as a matter of law. We will affirm only when no
genuine issues of material fact exist and the law was applied
correctly. We make all reasonable inferences drawn from the
facts in the light most favorable to the non-moving party. In
addition, the moving party has the burden of clearly
demonstrating an absence of any genuine issue of material fact
and an entitlement to judgment as a matter of law.

Id. (citation omitted). “We review a circuit court’s entry of summary judgment

under the de novo standard of review.” Id. (citation omitted).

Analysis and Decision

[¶14.] To establish that the Road is for public use, the Turgeons must

establish both (1) a dedication to public use and (2) the acceptance of such

dedication by the City. See Selway Homeowners Ass’n v. Cummings, 2003 S.D. 11,

¶ 20, 657 N.W.2d 307, 313. The Turgeons argue that the Road was dedicated for

public use in four possible ways: (1) the 1953 Easement, (2) the 1971 Agreement, (3)

the 1972 Warranty Deed, and/or (4) the 2012 Plat. They maintain that the

dedication was implied in some instances, while express in another, and that the

acceptance of such dedication was either express or implied.

Whether the Thoen Stone Road was Dedicated for Public Use

[¶15.] This Court has defined the term “dedication” in property cases and

accepted it as a legal term of art, as follows:

Dedication is generally defined as the devotion of property to a
public use by an unequivocal act of the owner that manifests an
intention that the property dedicated shall be accepted and used
presently or in the future. The intention of the owner to
dedicate and acceptance thereof by the public are the essential
elements of a complete dedication.

Bergin v. Bistodeau, 2002 S.D. 53, ¶ 16, 645 N.W.2d 252, 255 (citation omitted).

“Black’s Law Dictionary defines ‘dedicate’ as ‘[t]o appropriate and set apart one’s

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private property to some public use; as to make a private way public by acts

evincing an intention to do so.’” Id. ¶ 16, 645 N.W.2d at 256 (alteration in original)

(quoting Black’s Law Dictionary 412 (6th ed. 1990)). “The term ‘dedication’ is

defined as ‘[a]n appropriation of land to some public use by or on behalf of the

public[.]’” Id. (alterations in original) (citation omitted).

[¶16.] A dedication is either express or implied. We have held that “[a]

dedication is express when the intent is manifested by oral or written words” and a

dedication is implied “when the intent must be gathered from the acts of the

dedicator.” Id. ¶ 17 (citation omitted). In other words, “a dedication is express

where the appropriation is formally declared[.]” Id. (citation omitted).

[¶17.] “A dedication ‘is implied where it arises by operation of law from the

owner’s conduct and the facts and circumstances of the case.’ An implied

‘[d]edication is premised on the doctrine of equitable estoppel.’” Nelson v. Garber,

2021 S.D. 32, ¶ 25, 960 N.W.2d 340, 347 (alteration in original) (citations omitted).

“This is because when an owner’s actions or conduct have been acted upon by the

public and the Township, testimony that dedication was not intended will not be

permitted to prevail against unequivocal acts and conduct on the part of the owner

inconsistent with such intent, and upon which the public had a right to rely.” Id.

(citation omitted). However, we have explained:

[O]wnership of land once had is not to be presumed to have been
parted with; but the acts and declarations relied on to show a
dedication should be unequivocal and decisive, manifesting a
positive and unmistakable intention, on the part of the owner, to
permanently abandon his property to the specific public use. If
they are equivocal, or do not clearly and plainly indicate his
intention to permanently abandon the property to the public,
they are not sufficient to establish a dedication. The intention to

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dedicate must clearly appear, though such intention may be
shown by deed, by words, or acts. If by words, the words must
be unequivocal, and without ambiguity. If by acts, they must be
such acts as are inconsistent with any construction, except the
assent to such dedication.

Brusseau v. McBride, 245 N.W.2d 488, 491 (S.D. 1976) (alteration in original)

(citation omitted). Conversely, an intent not to dedicate “is to be gathered from a

consideration of all the facts” and such intent can be “evidenced in many ways,

including express statements, objections to public use of the property, fencing or

enclosing the property, and payment of taxes, etc.” 11A McQuillin Mun. Corp.

§ 33:41 (3d ed).

[¶18.] Here, the Turgeons claim an implied dedication via the 1953

Easement, the 1971 Agreement, and the 1972 Warranty Deed, and an express

dedication via the 2012 Plat. We consider each in turn.

a. The 1953 Easement

[¶19.] The Turgeons argue first that the 1953 Easement was an implied

public easement.2 “An easement may be dedicated to public use if the owner clearly

acts to so dedicate it and the public entity accepts the dedication.” Tonsager v.

Laqua, 2008 S.D. 54, ¶ 9, 753 N.W.2d 394, 397 (citations omitted); see also Tinaglia

v. Ittzes, 257 N.W.2d 724, 728–29 (S.D. 1977) (citations omitted); Bergin, 2002 S.D.

53, ¶¶ 15–17, 645 N.W.2d at 255–56. The scope of an easement “must be

ascertained from the document itself: if its words are plain and unambiguous, ‘the

2. The City seems to argue that the 1953 Easement cannot become a dedicated
public highway. However, we interpret the Turgeons’ argument differently
and conclude that the Turgeons’ first argument is that the 1953 Easement
was a dedicated public easement, not a dedicated public highway.
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matter is concluded.’” Tonsager, 2008 S.D. 54, ¶ 6, 753 N.W.2d at 396 (citation

omitted). “The terms of the grant, as they can be learned either by words clearly

expressed, or by just and sound construction, will regulate and measure the rights

of the grantee.” Id. (citation omitted). “When the terms are ‘clear, definite and

unambiguous’ it is ‘unnecessary to resort to extrinsic facts or circumstances to

determine its meaning or extent.’” Id. (citation omitted).

[¶20.] The 1953 Easement stated in relevant part that Thomson granted to

the City and the Thoen Stone Committee, “jointly as joint tenants, an easement,

Right-of-Way and privilege to establish a historic marker and Museum, including

other Black Hills Historical events, of the Thoen Stone for public display, on the

land near the City of Spearfish.” The Easement also contains a reversionary clause,

providing that if the Thoen Stone were moved to a different location, the “site

herein granted and conveyed shall revert to” Thomson.

[¶21.] The Turgeons rely on the language “of the Thoen Stone for public

display” to support their claim of implied dedication. This language, however,

relates to the establishment of a historic marker and museum, which Thomson

intended be utilized to house the Thoen Stone for “public display.” The 1953

Easement does, in addition, grant the City a right-of-way to access the Thoen Stone

marker, but there is no language describing that right-of-way that indicates

Thomson’s intent that it be used for any reason other than to access the marker.

The plain language of the 1953 Easement therefore reflects a clear intent to limit

access to those wanting to visit the Thoen Stone marker, which forecloses the

Turgeons’ argument. See Clarke v. Tannin, Inc., 301 F. Supp. 3d 1150, 1158 (S.D.

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Ala. 2018) (“Alabama cases have repeatedly emphasized that dedication cannot

work in favor of a select subset of the public at large[.]”).

[¶22.] Further, the 1953 Easement contains a reversionary clause, stating

that should the Thoen Stone marker be moved, the “site herein granted and

conveyed” shall revert to Thomson. This clause defines the limitation on the use of

the 1953 Easement and also indicates that it was not intended to be perpetual or

irrevocable. Such language in the 1953 Easement, therefore, is indicative of an

intent not to dedicate the easement to public use. As we stated in Niemi v.

Fredlund Township: “[W]e do not presume dedication; the intent of the dedicator

must demonstrate a positive and unmistakable intent to permanently abandon

property for specific public use.” 2015 S.D. 62, ¶ 32, 867 N.W.2d 725, 733 (emphasis

added) (citation omitted). See also 11A McQuillin Mun. Corp. § 33:2 (3d ed) (“It is

vital to a dedication of property to public use that it be forever and irrevocable after

acceptance[.]”). Similarly, a “reservation of the right to revoke defeats the

dedication.” 11A McQuillin Mun. Corp. § 33:16 (3d ed.).

[¶23.] The record evidence—including Thomson’s express statement

restricting access for a particular purpose, restricting access to a specific portion of

the property containing the monument, and the reversionary clause retracting

access if the Thoen Stone was moved to another location—evinces Thomson’s intent

not to dedicate the Easement to public use. See 11A McQuillin Mun. Corp. § 33:41

(3d ed.). Accordingly, we affirm the circuit court’s conclusion that the 1953

Easement does not demonstrate a positive and unmistakable intent to permanently

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abandon the property for public use and, therefore, did not constitute an implied

dedication.

b. The 1971 Agreement

[¶24.] The Turgeons next argue that the 1971 Agreement contained an

implied dedication between Thomson and the City. When Thomson platted the

property, creating three lots—37A, 37B, and 37C—he also entered into an

agreement to transfer Lot 37A to the City. The 1971 Agreement set forth certain

purposes and conditions, including that Lot 37A “known as the Thoen Stone Land,

is to be used by the City of Spearfish exclusively for use as a City Park and for the

enjoyment and historical interest centered around the Thoen Stone by the citizens

and visitors to Spearfish, South Dakota.” The 1971 Agreement also contained a

reversionary clause, stating that “if Lot 37A were not developed or used as a city

park or if the City were to abandon it as a city park, the property would revert to

Thomson, his heirs, executors or assigns.” The 1971 Agreement provided for access

to Lot 37A by granting a “right-of-way for ingress and egress to said property over

the existing roadway, more particular[ly] described as follows, it being agreed that

such right-of-way shall be maintained by the City of Spearfish and shall not be

fenced, and further if said City Park is abandoned by the City of Spearfish, said

right-of-way shall revert to the Seller, his heirs, executors or assigns.”

[¶25.] The Turgeons did not produce evidence to support a finding that the

1971 Agreement contained an implied dedication. As with the 1953 Easement,

access granted by the 1971 Agreement is limited to the express purpose of the

“enjoyment” of the “Thoen Stone” and it, too, contains a reversionary clause. Such

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evidence is at odds with an “unmistakable intent to permanently abandon” the

Road. Niemi, 2015 S.D. 62, ¶ 32, 867 N.W.2d at 733 (citation omitted). The circuit

court, therefore, determined that like the 1953 Easement, the 1971 Agreement did

not show an intent to dedicate. We agree and affirm the circuit court’s conclusion

that no dedication occurred under the 1971 Agreement.

c. The 1972 Warranty Deed

[¶26.] The third way the Turgeons allege a dedication of the Road is through

the 1972 Warranty Deed, through which Thomson conveyed Lot 37C-2 to the City.

The circuit court determined that this deed did not concern any portion of the Road.

Further, the stated purpose of the 1972 Warranty Deed was “for the use and

purpose of maintaining a road to provide access to the Thoen Stone Monument

Road.” The Warranty Deed also stated that in “the event this property should cease

to be used by the grantees for the purposes set forth above, the property conveyed is

to revert to the grantor, his heirs, executors and assigns.”

[¶27.] “Construction of a deed is a question of law.” Chicoine v. Davis, 2017

S.D. 62, ¶ 4, 903 N.W.2d 544, 547 (citation omitted). “We examine the instrument

as a whole to determine what type of conveyance was intended.” Id. (citation

omitted). “If the language of a deed leaves doubt on the intention of the parties, we

will consider all the attendant circumstances existing at the time of execution.” Id.

(citation omitted).

[¶28.] Like the other documents relied on by the Turgeons, the 1972

Warranty Deed contained an express limitation regarding the use of the property

conveyed, stating it was “for the use and purpose of maintaining a road to provide

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access to the Thoen Stone Monument Road.” The reversionary clause in the 1972

Warranty Deed also limits the purpose for which the property could be used. See

Niemi, 2015 S.D. 62, ¶ 32, 867 N.W.2d at 733. The circuit court did not err in

determining that there was not a dedication via the 1972 Warranty Deed.

d. The 2012 Plat

[¶29.] The final way in which the Turgeons claim that the Road was

dedicated for public use is through the 2012 Plat. The 2012 Plat contains

unmistakable language indicating the owners’ intent to dedicate the Road to public

use, stating a 70-foot “PUBLIC RIGHT-OF-WAY DEDICATED THIS PLAT 2.99

ACRES.” As we have previously concluded, “[w]ords contained in a plat such as

‘dedicated as a 66 foot public right-of-way,’ ‘public highway’ or ‘public road’ are

obvious terminology that the road has been offered by the land owner to be

dedicated as a public highway per SDCL 31-1-1.” Selway, 2003 S.D. 11, ¶ 21, 657

N.W.2d at 313 (footnote omitted). The City does not dispute that the Road was

expressly dedicated by the 2012 Plat. We agree that the 2012 Plat contains an

express dedication. However, to prevail, there must not only be a dedication, but

also an acceptance of such dedication by the City. Bergin, 2002 S.D. 53, ¶¶ 16–17,

645 N.W.2d at 255–56.

Whether the City accepted the dedication

[¶30.] Like a dedication, the acceptance of such dedication can be express or

implied. See 22B Am. Jur. 2d Dedication § 46 (stating that “[a]cceptance of an offer

of dedication” can be either express or implied). The Turgeons first argue the City

expressly accepted the dedication as evidenced by its request for the 2012 Plat, by

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its approval of the Plat, and by the certification on the Plat as an owner. The 2012

Plat contains the following certification:

I, JERRY KRAMBECK, MAYOR OF THE CITY OF
SPEARFISH[,] DO HEREBY CERTIFY THAT THE CITY OF
SPEARFISH IS THE OWNER OF STREET AND ALLEY
RIGHTS OF WAYS DESCRIBED AS VACATED ON THE PLAT
. . . AND THAT THE PLAT WAS DONE AT THE CITY’S
REQUEST FOR THE PURPOSES INDICATED HEREON, AND
THAT THE CITY DOES HEREBY APPROVE THE WITHIN
PLAT OF SAID LAND.3

[¶31.] The Turgeons’ argument that such certification was an express

acceptance is contrary to SDCL 11-6-33, which states, “The approval of a plat by the

council shall not be deemed to constitute or effect an acceptance by the municipality

or public of the dedication of any street or other ground shown on the plat.” SDCL

11-6-33 (emphasis added). However, unlike in other cases in which we have

addressed what constitutes an acceptance by a governing body, here, the City is one

of the owners of the property and its certificate of ownership states that the Plat

was done at the City’s request for the purposes indicated on the Plat. This begs the

question: If the City was only keeping the Road open per the 1971 Agreement, as an

access road or path to the Thoen Stone Park, why would it request a plat dedicating

3. The Turgeons state in their brief that a “public body can be shown to have
accepted a dedicated public right-of-way by approval of a plat or expenditure
of funds[.]” They cite Nelson v. Garber, 2021 S.D. 32, ¶ 30 n.6, 960 N.W.2d
340, 348 n.6, for this assertion. However, Nelson does not support the
Turgeons’ claim, as they suggest. In Nelson, we stated that acceptance can
be shown through the public’s use, but noted that this “does not require the
County or Township to maintain” the road at issue. Id. (citing SDCL 11-3-12
which provides in part: “No governing body shall be required to open,
improve, or maintain any such dedicated streets . . . solely by virtue of having
approved a plat or having partially accepted any such dedication, donation or
grant.”). Thus, approval of a plat is not synonymous with acceptance.
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this same roadway as a public right-of-way if it had no intent to expand the use of

such roadway? It seems illogical that the City would, on the one hand, request a

plat for purposes of dedicating a public right-of-way and dedicate some of its own

property to either connect to, or become part of, such roadway, but then claim it

never accepted such dedication.4 When viewing the evidence in a light most

favorable to the Turgeons, one could reasonably infer from the City’s certification

that it was an implicit acceptance of the expanded use of the Thoen Stone Road.5

[¶32.] The Turgeons also argue that the City’s acceptance of the dedication

can be implied from the City’s expenditure of funds to maintain the Road by conduct

4. The City argues that the portion of the roadway on the City’s Lot 37C-2 was
part of St. Joe Street rather than the Thoen Stone Road. However, while the
2012 Plat shows the Thoen Stone Road connecting to the end of St. Joe
Street, the boundaries of the City’s Lot 37C-2 are hard to discern. When
comparing the 1971 and 2012 Plats, it appears that the northern end of the
Thoen Stone Road was extended onto the City’s Lot 37C-2 when the 2012
Plat dedicated the Road for public use. According to testimony from the
Turgeons, this is the area where the disputed gate is located. Because we
determine below that there are genuine issues of material fact in dispute
regarding the City’s acceptance of the dedicated public right-of way shown on
the 2012 Plat, further testimony may be needed to clarify these points, which
are not clear from the existing exhibits and record.

5. A similar inference could be drawn from the Spearfish Planning Commission
staff report, presented below, pertaining to a 2016 rezoning request to
revitalize the area that was previously used as an amphitheater for the Black
Hills Passion Play and a campground. The report notes that the Thoen Stone
Road serves as access to the proposed campground area, which is in the
vicinity of the northern end of the Thoen Stone Road, rather than the
southern end near the existing Thoen Stone Monument. The report makes
no mention of having to open and designate the road as a public right of way
for vehicular travel. Instead, it refers only to the need to improve the Road to
a standard needed for this type of traffic. The report also includes the Thoen
Stone Road, along with St. Joe Street and two other avenues, when referring
to the need for upgrades to accommodate the increased traffic on the existing
street network.
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such as laying asphalt, placing a cattle guard, and mowing the ditches, and by

others’ use of the Road. Our previous decisions have recognized that the

expenditure of funds, maintenance activities, and public use can demonstrate

implied acceptance. See Nelson, 2021 S.D. 32, ¶ 30, 960 N.W.2d at 348 (“Because

we have adopted the rule that acceptance of a dedication may be shown through

use, the public’s use of the road for almost forty years and the Bay Ridge

subdivision’s utilization of the road establishes acceptance.” (citation modified));

Miller v. Scholten, 273 N.W.2d 757, 762 (S.D. 1979) (concluding “the township had

accepted the dedication by expending public funds for grading, graveling, and

maintaining the road”); Haley v. City of Rapid City, 269 N.W.2d 398, 400 (S.D.

1978) (finding acceptance of dedication, noting the “the utilization of the alley by

utilities under a franchise from the city, the graveling of the entire alley by the city,

the provision in the curb for ingress and egress, and the refusal of the city to vacate

the alley”).

[¶33.] The circuit court found that the Turgeons’ undisputed evidence of

implied acceptance was lacking, noting contrary evidence that the City “provided

limited maintenance” of the Road “commensurate with the maintenance of the Road

for pedestrian access,” and that the City also limited access to the Road and

prevented unrestricted vehicular traffic. However, it is problematic that the circuit

court rejected the Turgeons’ arguments by concluding they did not show “by clear

and convincing evidence, both a dedication and acceptance of the Road.” (Emphasis

added.) In support of its application of the clear and convincing standard of proof,

the court relied on Niemi, where this Court adopted the clear and convincing

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standard of proof as the proper burden to apply in dedication cases.6 2015 S.D. 62,

¶ 29, 867 N.W.2d at 732. But Niemi was resolved by a court trial, whereas the

present case was resolved via summary judgment. This distinction is significant,

particularly in light of our proscription against weighing evidence at the summary

judgment stage. See Hamilton v. Sommers, 2014 S.D. 76, ¶ 42, 855 N.W.2d 855, 868

(“The judge’s function at the summary judgment stage, however, is not to weigh the

evidence[.]”).

[¶34.] Indeed, requiring a party to produce evidence that is sufficient to meet

either a clear and convincing or preponderance of the evidence standard of proof

seems antithetical to the concept of summary disposition under SDCL 15-6-56 (Rule

56) as an alternative to trial.7 The plain text of Rule 56 allows a court to enter final

judgment without a trial “if . . . there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” SDCL 15-6-

56(c) (emphasis added). The summary judgment standard, by its express terms,

6. The circuit court, expressing some uncertainty in the clear and convincing
standard of proof, alternatively applied the preponderance of the evidence
standard and held that under either standard, the Turgeons failed to prove
implied acceptance by the City.

7. While the United States Supreme Court in Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986), and this Court in Saathoff v. Kuhlman, 2009 S.D. 17,
763 N.W.2d 800, applied a burden of proof at the summary judgment stage,
both are libel cases involving public figures. Both the Supreme Court and
this Court have held that such claims require a higher evidentiary burden.
Anderson, 477 U.S. at 244 (declaring that “in a libel suit brought by a public
official, the First Amendment requires the plaintiff to show . . . the defendant
acted with actual malice” and “such actual malice must be shown with
‘convincing clarity’” (citation omitted)); Saathoff, 2009 S.D. 17, ¶ 15, 763
N.W.2d at 805 (explaining that “this higher evidentiary burden to prove
‘actual malice’ extends not only to the proof required at trial, but also in
resisting summary judgment”).
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tests the disputed nature of factual evidence, not its quantity or relative weight.

Logically, if the material facts are truly undisputed, they are established regardless

of the burden of proof, leaving only the question of whether a moving party is

entitled to judgment as a matter of law.8

[¶35.] Justice Brennan made a similar point in his frank dissent in Anderson

when responding to the mixed messages within the majority opinion:

I simply cannot square the direction that the judge “is not
himself to weigh the evidence” with the direction that the judge
also bear in mind the “quantum” of proof required and consider
whether the evidence is of sufficient “caliber or quantity” to meet
that “quantum.” I would have thought that a determination of
the “caliber and quantity,” i.e., the importance and value, of the
evidence in light of the “quantum,” i.e., amount “required,” could
only be performed by weighing the evidence.

Anderson, 477 U.S. at 266 (Brennan, J., dissenting).

[¶36.] The weighing-evidence standard for summary judgment

determinations envisioned by Anderson becomes particularly awkward on appeal.

This Court reviews a circuit court’s decision to grant or deny a summary judgment

motion “apply[ing] the same test as the trial court.” Bordeaux v. Shannon Cnty.

Schs., 2005 S.D. 117, ¶ 12, 707 N.W.2d 123, 126–27 (quoting Fisher v. Kahler, 2002

S.D. 30, ¶ 5, 641 N.W.2d 122, 125). If the circuit court must assess the strength and

amount of the evidence, and we use the same standard without deference on appeal,

8. Some commentators have noted the Supreme Court’s exposition of the burden
of proof for summary judgment in Anderson is, at times, confusing and
unworkable. See, e.g., Linda S. Mullenix, Summary Judgment: Taming the
Beast of Burdens, 10 Am. J. Trial Advoc. 433, 462 (1987) (“So replete is the
decision with contradictory pronouncements that opposing counsel can in the
future legitimately cite Anderson’s dicta for completely repugnant
propositions.”).
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then we are also—as an appellate court—called upon to determine the weight of the

evidence judged against the standard of a heightened burden of proof. This we

cannot do. See Johnson v. Markve, 2022 S.D. 57, ¶ 39, 980 N.W.2d 662, 674 (“[O]ur

well-settled rules for determining summary judgment prohibit us from focusing

parochially on [the moving party’s] evidence and, instead, require us to credit the

evidence offered by . . . the non-moving party, and any reasonable inferences it

supports. To do otherwise would require us to weigh the conflicting evidence—a

practice which is, of course, categorically proscribed for courts considering motions

for summary judgment.”).

[¶37.] Here, the circuit court—alternatively applying a clear and convincing

and preponderance of the evidence standard of proof—rejected the Turgeons’

argument that there was an implied acceptance of the dedication by the City given

its treatment of the Road and the public’s use of such Road. In doing so, the court

not only failed to account for the inferences raised by the evidence, but it also

marginalized the Turgeons’ evidence of such acceptance, in favor of the City’s

evidence. Weighing conflicting evidence regarding the City’s implied acceptance is

incongruent with our summary judgment standards. Where, as here, the Turgeons

produced evidence of conduct supporting the City’s implied acceptance of the

dedication, it is for the finder of fact through an evidentiary proceeding to

determine whether such conduct amounts to clear and convincing evidence of

acceptance of the 2012 dedication.

[¶38.] From our review of the record, the inferences from the Turgeons’

evidence were sufficient to raise a genuine issue of material fact on this issue. A-G-

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E Corp. v. State, 2006 S.D. 66, ¶ 17, 719 N.W.2d 780, 786 (declaring that to sustain

summary judgment not only must there be no genuine issue of material fact, “there

must be no genuine issue on the inferences to be drawn from those facts”).

Accordingly, the Turgeons were entitled to a trial on the merits of these issues. Id.

(“When a material fact is in dispute, a trial is required to resolve differing versions

of the truth.”).

Conclusion

[¶39.] Based on our review of the record, the circuit court did not err in

concluding that the Road was first dedicated for public use via the 2012 Plat. The

circuit court also did not err in concluding that the Turgeons failed to establish that

the City expressly accepted the 2012 dedication.

[¶40.] However, in determining whether there was an implied acceptance of

the dedication, the circuit court failed to consider logical inferences from the facts

we note above, and the court inappropriately weighed the competing evidence

regarding this issue. We, therefore, reverse the circuit court’s decision granting the

City’s motion for summary judgment and remand the case for trial on the question

of whether there was an implied acceptance of the 2012 dedication by the City.

[¶41.] We affirm in part, reverse in part, and remand for trial.

[¶42.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.

[¶43.] GUSINSKY, Justice, not having been a member of the Court at the

time this action was considered by the Court, did not participate.

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