#24534-a-RWS 

2008 SD 26 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

EUGENE R. ASHBY and 

JUDITH A. ASHBY, husband 

and wife, Plaintiffs and Appellants, 

 v. 

JON OOLMAN and CAROL 

OOLMAN, husband and wife, Defendants and Appellees. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE WARREN G. JOHNSON 

Judge 

* * * * 

DYLAN A. WILDE 

THOMAS E. BRADY of 

Brady Pluimer, PC 

Spearfish, South Dakota Attorneys for plaintiffs 

and appellants. 

THOMAS E. ADAMS of 

Voelker and Adams, PC 

Deadwood, South Dakota Attorneys for defendants 

and appellees. 

* * * * 

CONSIDERED ON BRIEFS 

ON FEBRUARY 11, 2008 

 OPINION FILED 04/02/08 
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SABERS, Justice. 

[¶1.] Eugene R. Ashby and his wife, Judith A. Ashby, claimed a twenty-five 

foot wide strip of land between their house and their neighbors, Jon Oolman and his 

wife, Carol Oolman. When Oolman1 began construction on the land that Ashby 

claimed, Ashby brought suit against Oolman for trespass, wrongful occupation and 

for a determination of the property line. After a bench trial, the circuit court found 

in favor of Oolman. Ashby appeals and we affirm. 

FACTS 

[¶2.] Ashby owns land in Lead, South Dakota known as 803 Searle Street. 

Ashby obtained title to this property on July 21, 1998 when Judith Ashby received a 

limited warranty deed from the Administrator of Veteran’s Affairs. The deed 

described the property as: “The north portion of Lot 4, Block 12, of the Kenwood 

Addition to the City of Lead, Lawrence County, South Dakota also known as 803 

Searle Street in the City of Lead, South Dakota.” 

[¶3.] Oolman owns the land adjacent to Ashby’s land, known as 809 Searle 

Street. Oolman obtained title by warranty deed from Equity One, Inc. on January 

23, 2004. The legal description is: “Lots 1, 2 and 3, Block 12 of the Kenwood 

Addition to the City of Lead, Lawrence County, South Dakota, as set out in Plat 

Book 2 Page 55, Lawrence County Records also known as 809 Searle Street.” 

1. Unless further distinction is necessary, the parties will be referred to in the 

singular (i.e. Ashby and Oolman) even though both plaintiff and defendant 

consist of a husband and a wife. 
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[¶4.] These two properties were originally entirely owned by Homestake 

Mining Company (Homestake). In 1956, Homestake issued a license to Raymond 

Grosek allowing him to occupy the property described as: 

A parcel of ground, the west corner of which lies in a 

Southwesterly direction from Corner No. 4 of said Adam 

Lode, M.S. 1281, about 105 feet thence Southeasterly 

about 104 feet, Thence Northeasterly about 52 feet 

Thence Northwesterly about 100 feet, Thence 

Southwesterly about 62 feet to the place of beginning. 

The dwelling house situated on said parcel of ground is 

known as No. 803 Searle Street in the City of Lead. 

Grosek lived on the property with his family until 1963, when he rented the 

property to the Hyde family for eleven years. While the Grosek and Hyde families 

occupied the land there were two garages on the Homestake property, one on the 

803 Searle property and one on the 809 Searle property. The garage on the 803 

Searle side had a fence attached to the back that ran between the two houses and 

down the hill to the back of the property. However, while Homestake still owned all 

of the property, Grosek and Delbert Heller, the occupant of 809 Searle Street, tore 

down the two garages for safety reasons and laid the wire fence down. 

[¶5.] While Homestake owned all four lots on Searle Street, on July 10, 

1978, Homestake conveyed only the 803 property by quitclaim deed to Grosek, who 

in turn quitclaimed the property to Emmet L. Tapp and Patricia A. Tapp two days 

later. The legal description contained on the quitclaim deed from Grosek to Tapp 

described the property as: 

Lot Four (4) Block Twelve (12) Kenwood Subdivision to the 

Washington Addition to the City of Lead, Lawrence County, 

South Dakota; which said Lot is also referred to as Lot eight (8) 

Highland Park Addition to the City of Lead, South Dakota, 
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according to Homestake Mining Company Drawing, indicating 

said Lot to be Seventy-five (75) feet by Sixty-five and 75/100 

65.75 feet more or less. This property is also described as 803 

Searle Street. 

The legal description contained in the quitclaim deed from Homestake to Grosek did 

not contain the “Seventy-five (75) feet by Sixty-five and 75/100 65.75 feet more or 

less” description.2

[¶6.] The 803 Searle property was conveyed a few more times over the 

years. Eventually, the property was conveyed by Sheriff’s Deed to First Federal 

Savings and Loan Association of Rapid City, South Dakota on March 9, 1987. The 

Sheriff’s deed omitted the 75 foot by 65.75 foot dimensions and described the 

property as: “the North portion of Lot Four (4) Block Twelve (12) of the Kenwood 

Addition to the city of Lead, Lawrence County, South Dakota also known as 803 

Searle Street in Lead, South Dakota.” Title then transferred to the Veteran’s 

Administration, which deeded the property to Ashby. 

[¶7.] Oolman’s property was conveyed by Homestake in two separate steps. 

First, Lot 3 of Block 12 of the Kenwood Addition3 (a portion of this property is 

2. The description in the quitclaim deed from Homestake to Grosek is as 

follows: 

The North Portion of Lot 4, Block 12 of the Kenwood Addition to Lead, South 

Dakota, according to L.D. Lee’s Map of the Kenwood Addition which lot is 

also known as Lot 8 of the Highland Park Addition to the City of Lead 

according to J.P. Crick’s Map of the City of Lead, South Dakota. The 

dwelling house situated on the above described lot is known as 803 Searle 

Street in Lead, South Dakota. 

3. Also known as Lot 9 of the Highland Park Addition according to the J.P. 

Crick’s map. See attached copy of J.P. Crick map. 
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where Ashby claims an interest) was conveyed to Bruce and Rhonda Huber on 

December 17, 1976. Lots 1 and 2 of the Kenwood Addition4 were conveyed to the 

Hubers on February 21, 1977. The house on 809 Searle Street was licensed to 

Delbert and Jeannie Heller, who conveyed their interest to the Hubers on April 26, 

1977. Shortly thereafter, Hubers conveyed their interest in the entire property to 

Kathy Kirby and Curtis Eide. The Eides moved in June of 1995 and rented the 

property to the Alleys from June 1998 to August 2000. This property changed 

hands a couple more times and eventually was conveyed by Equity One, Inc. to 

Oolman in 2004. 

[¶8.] The subject of this appeal is the ownership of a strip of land, 

approximately twenty-five feet wide, between Ashby’s and Oolman’s properties. In 

the spring of 2000, Oolman began building plans for a garage between the two 

properties. He hired a surveyor to mark the boundary lines and applied to the City 

of Lead for a building permit. Ashby objected to Oolman’s plans and argued that 

the property line was closer to the Oolman residence than the survey and building 

plans indicated. Ashby claimed a seventy-five foot frontage on Searle Street, which 

would place the eastern boundary along a line from a tree stump on Searle Street to 

a large pine tree at the back of the property. Oolman claimed the property line is 

located on a steel post just east of Ashby’s house. The City of Lead gave Ashby an 

opportunity to demonstrate the property line was erroneous, but he failed to 

produce evidence. Thereafter, the city issued a building permit and Oolman began 

construction on the garage in the summer of 2004. 

4. Also known as Lots 10 and 11 of the Highland Park Addition. 
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[¶9.] Ashby brought suit against Oolman to establish the boundary line 

between the two properties, for trespass, wrongful occupation, and an order 

restraining and enjoining Oolman from entering Ashby’s land and an order 

requiring Oolman to restore Ashby’s land to its original condition. He claimed he 

owned the disputed land under three separate theories of adverse possession. The 

circuit court found in favor of Oolman and dismissed Ashby’s complaint. Ashby 

appeals, raising the following issues: 

1. Whether the circuit court erred in denying Ashby’s claim of 

adverse possession pursuant to SDCL 15-3-15. 

2. Whether the circuit court erred in denying Ashby’s claim of 

adverse possession pursuant to SDCL 15-3-10 or SDCL 15- 

3-12. 

 

STANDARD OF REVIEW 

[¶10.] This appeal follows a court trial on the issue of adverse possession. 

“Proof of the individual elements of adverse possession present questions of fact for 

the trial court, while the ultimate conclusion of whether they are sufficient to 

constitute adverse possession is a question of law.” City of Deadwood v. Summit, 

Inc., 2000 SD 29, ¶9, 607 NW2d 22, 25 (quoting Lewis v. Moorhead, 522 NW2d 1, 3 

(SD 1994) (citing Lien v. Beard, 478 NW2d 578, 580 (SD 1991))). Therefore, the 

circuit court’s findings of fact are reviewed under the clearly erroneous standard, 

while its conclusions of law are reviewed under the de novo standard. Fin-Ag, Inc. 

v. Feldman Bros., 2007 SD 105, ¶19, 740 NW2d 857, 862 (additional citation 

omitted). Moreover, issues of statutory interpretation and application are matters 

of law reviewed de novo. Rotenberger v. Burghduff, 2007 SD 7, ¶8, 727 NW2d 291, 
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294 (Rotenberger I) (quoting State v. $1,010 in Am. Currency, 2006 SD 84, ¶8, 722 

NW2d 92, 94). 

[¶11.] 1. Whether the circuit court erred in denying Ashby’s claim 

of adverse possession pursuant to SDCL 15-3-15. 

[¶12.] If an individual possesses and pays taxes on land for ten years under 

claim and color of title, SDCL 15-3-15 entitles the tax-paying individual to a 

judgment of ownership. SDCL 15-3-15 provides that: 

Every person in the actual possession of lands or tenements 

under claim and color of title made in good faith, and who shall 

have continued for ten successive years in such possession, and 

shall also during said time have paid all taxes legally assessed 

on such lands or tenements, shall be held and adjudged to be the 

legal owner of said lands or tenements to the extent and 

according to the purport of his paper title. All persons holding 

under such possession by purchase, devise, or descent before 

said ten years shall have expired, and who shall have continued 

such possession and payment of taxes as aforesaid so as to 

complete said term of ten years of such possession and payment 

of taxes, shall be entitled to the benefit of this section. 

This statute requires: “(1) claim and color of title made in good faith, (2) ten 

successive years in possession, and (3) payment of all taxes legally assessed.” 

Andree v. Andree, 291 NW2d 788, 790 (SD 1980). 

[¶13.] Ashby claims the elements of this statute have been met because he 

has claim and color of title made in good faith due to the deed from Grosek that 

contained the 65 feet by 75.65 feet description. This, Ashby argues, would place the 

boundary at the old tree stump. The Lawrence County Equalization Office also has 

a notation on the property tax assessment card for 803 Searle Street that the lot 

size was “66 x 73.” Ashby has also paid all the assessed real estate taxes. 
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[¶14.] Ashby’s arguments fail for two reasons. First, Ashby did not possess 

the land under claim and color of title made in good faith. When Homestake 

quitclaimed the 803 Searle property, the legal description did not contain the 75 

feet by 65.75 feet description. Only two days later, when Grosek quitclaimed the 

property to the Tapps, did the size designation appear in the deed. The description 

in the quitclaim deed from Homestake only conveyed: 

The North Portion of Lot 4, Block 12 of the Kenwood Addition to 

Lead, South Dakota, according to L.D. Lee’s Map of the 

Kenwood Addition which lot is also known as Lot 8 of the 

Highland Park Addition to the City of Lead according to J.P. 

Crick’s Map of the City of Lead, South Dakota. The dwelling 

house situated on the above described lot is known as 803 Searle 

Street in Lead, South Dakota. 

[¶15.] John Arleth testified at trial on behalf of Oolman and said that the 

north portion of Lot 4 would have a fifty-foot frontage, not the seventy-five foot 

frontage urged by Ashby, according to all three of the plat maps that he knew of for 

the property.5 Moreover, according to Arleth, Grosek originally had a license for 

more than just the north portion of Lot 4. However, Homestake only quitclaimed 

the north portion of Lot 4 and the deed held by Ashby only indicates ownership of 

the north portion of Lot 4. Therefore, Ashby would not have “a claim and color of 

title made in good faith.” 

[¶16.] Nor is there evidence that Ashby paid taxes on the disputed property. 

Darlene Piekkola, the Lawrence County Director of Equalization, testified that the 

 (continued . . .) 

5. The surveyor for Ashby, Loren Vrem, testified that he created a plat map, but 

he used the dimensions 75 by 65.75 that were not in the quitclaim deed to 

Grosek, but were placed in the quitclaim deed from Grosek to Tapp. These 
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________________________ 

(. . . continued) 

property size on the assessor card was merely an estimate. She testified that the 66 

x 73 is not a measure of the front and one side of the property. Rather, since the 

property lot was irregular the numbers are probably an average of the sides and 

front and back. Therefore, it is not demonstrated that taxes were actually assessed 

and paid on that particular twenty-five foot wide strip of land between the 

properties. Plaintiff has not demonstrated that the circuit court erred in finding 

against him regarding SDCL 15-3-15. 

[¶17.] 2. Whether the circuit court erred in denying Ashby’s claim 

of adverse possession pursuant to SDCL 15-3-10 or SDCL 

15-3-12. 

[¶18.] In the alternative, Ashby claims that the circuit court erred because 

SDCL 15-3-10 or SDCL 15-3-12 vests title to the disputed property in him. SDCL 

15-3-10 provides: 

Whenever it shall appear that the occupant, or those under 

whom he claims, entered into the possession of premises under 

claim of title, exclusive of any other right, founding such claim 

upon a written instrument as being a conveyance of the premises 

in question, or upon the decree or judgment of a competent 

court, and that there has been a continued occupation and 

possession of the premises included in such instrument, decree, 

or judgment, or of some part of such premises under such claim 

for twenty years, the premises so included shall be deemed to 

have been held adversely; except that where the premises so 

included consist of a tract divided into lots the possession of one 

lot shall not be deemed a possession of any other lot of the same 

tract. 

(Emphasis added). The code also declares that: 

plat maps are not recorded at the Register of Deeds. The recorded plat maps, 

which were used by Arleth, show a 50 foot frontage for Lot 4. 
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For the purpose of constituting an adverse possession by any 

person claiming a title founded upon a written instrument, or a 

judgment, or a decree, land shall be deemed to have been 

possessed and occupied in the following cases: (1) Where it has 

been usually cultivated or improved; (2) Where it has been 

protected by a substantial [e]nclosure . . . . 

SDCL 15-3-11. 

[¶19.] Ashby alleges that Taylor v. Tripp, 330 NW2d 542 (SD 1983), 

demonstrates that the circuit court erred. However, the facts in Taylor are 

distinguishable from this case. In Taylor, the occupant of the land mistakenly 

thought her property line extended all the way to a fence, when it actually stopped 

eleven feet short of the fence. Id. at 543. Nonetheless, she used the disputed 

property for a garden. Id. This Court noted that if “an adjoining landowner enters 

into possession under claim of title and under misapprehension as to the true 

boundary and continues in possession for twenty years, adverse possession is 

established under . . . SDCL 15-3-10, not withstanding the fact the land extends 

beyond the calls of the occupant’s deed.” Id. at 544 (citing Sullivan v. Groves, 42 SD 

60, 172 NW 926 (1919)). Additionally, the evidence at trial demonstrated “the fence 

line acted as a substantial [e]nclosure . . . and . . . the property next to the fence line 

was usually cultivated.” Id.; see also SDCL 15-3-11. 

[¶20.] Ashby argues that the stump of a tree along with a second pine tree 

and remnants of a fence, located in the back of the property, constitute a 

“substantial enclosure.” However, a substantial enclosure is more than an invisible 

line running from a tree stump to a pine tree to a dilapidated, half-hidden fence at 

the back property line. For example, in Cuka v. Jamesville Hutterian Mutual 

Society, 294 NW2d 419 (SD 1980), this Court found that “the James River formed a 
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natural barrier around the disputed land” and thus constituted a “substantial 

enclosure.” Id. at 422. In Lewis v. Moorhead, 522 NW2d 1 (SD 1991), a white fence 

that did not run the entire distance between the lots was declared a substantial 

enclosure but it “provide[d] a physical and visual basis for determining the property 

line.” Id. at 3 n4 (additional citation omitted). Finally, in Schultz v. Dew, 1997 SD 

72, 564 NW2d 320, in finding that a tree line constitutes a substantial enclosure, we 

noted that “natural barriers may also satisfy the requirement of a substantial 

enclosure.” Id. ¶13, 564 NW2d at 323. 

[¶21.] While natural barriers may be substantial enclosures, the problem in 

this case is that a tree stump, a second pine tree and a run-down fence at the back 

of the property is markedly different from the James River, a partial white fence, or 

a tree line. Additionally, the plain meaning of substantial enclosure does not 

support a finding that a tree stump is a substantial enclosure. Substantial is 

defined as “consisting of or relating to substance . . ., not imaginary or illusory . . . 

[or] being largely but not wholly that which is specified . . . .” Enclosure is defined 

as “something that encloses [or] something enclosed.” Merriam Webster Online 

Dictionary, www.m-w.com (last accessed on March 20, 2008). An invisible line from 

stump to pine tree to a hidden run-down fence is not largely enclosing the property 

and does not meet the definition of substantial enclosure. 

[¶22.] Finally, Ashby argues the disputed property is his under SDCL 15-3-

12, which provides: 

Where it shall appear that there has been an actual continued 

occupation of premises under a claim of title exclusive of any 

other right, but not founded upon a written instrument, or a 
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judgment, or decree, the premises so actually occupied, and no 

other, shall be deemed to have been held adversely. 

“[T]he property in question must either have been protected by a ‘substantial 

[e]nclosure’ or must have been ‘usually cultivated or improved.’” City of Deadwood, 

2000 SD 29, ¶16, 607 NW2d at 26 (additional citation omitted). Moreover, “[t]he 

traditional elements of adverse possession require the ‘actual, open, visible, 

notorious, continuous and hostile’ occupation of the property for the statutory 

period.” Id. (additional citations omitted). The evidence produced at trial falls 

short and does not support this claim. 

[¶23.] As discussed above, Ashby has not demonstrated the disputed property 

is substantially enclosed. Likewise, in this case, the testimony from the current and 

prior occupants of 809 Searle was that Ashby rarely if ever utilized his property and 

rarely touched the disputed property. Ashby lives in Huron, South Dakota and only 

utilized 803 Searle approximately three or four times per year and for a few days to 

a week at a time. When he visited, he parked on the street and not on the disputed 

property. The current and former residents of 809 Searle testified that they mowed 

the disputed property when it needed mowing, but Ashby may have mowed it once 

or twice.6 Brittany Alley testified that when her family rented the house for three 

years, they placed a trampoline next to their house and no one used the grass 

between their home and Ashby’s. Finally, there was no testimony that the property 

6. Despite Ashby’s claim that he mowed the lawn when necessary, the circuit 

court heard the testimony and specifically found that Eide maintained the 

disputed property all the way to the steel post next to Ashby’s home before 

and after Ashby bought the property. 
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was “usually cultivated.” In actuality, the testimony reflects it was a strip of wild 

grass and weeds that was rarely mowed. 

[¶24.] Ashby argues that when Grosek utilized the property there was a 

garage and a fence separating the property and therefore, that demonstrates the 

disputed property was on the 803 Searle side. However, when Grosek lived on the 

property, he did so under a license from Homestake, which was different than the 

later deeded property. See supra ¶¶4-5. He later tore out the garage and fence in 

1974 or 1975, while Homestake still owned the property. Grosek never adversely 

possessed the property. When Homestake quitclaimed the 803 Searle property to 

Grosek, he received only the north portion of Lot 1, which is exactly what Ashby 

owns now, nothing more. 

[¶25.] Ashby has not demonstrated that the circuit court erred in ruling for 

Oolman. The evidence in the record demonstrates Ashby’s deed did not include the 

disputed property, nor has Ashby fulfilled the elements of adverse possession under 

any statute. Therefore, we affirm the circuit court. 

[¶26.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and 

MEIERHENRY, Justices, concur.