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2024 S.D. 35

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

EDWARD O. MOHNEN, Plaintiff and Appellee,

v.

ESTATE OF JOHN J. MOHNEN,

JOHN J. MOHNEN TRUST, Defendants and Appellants,

and

AURORA COUNTY, SOUTH DAKOTA, and

ANY AND ALL SPOUSES OF THE ABOVE

NAMED PERSONS OR UNKNOWN HEIRS,

HEIRS-AT-LAW, DEVISEES, LEGATEES,

EXECUTORS, ADMINISTRATORS,

PERSONAL REPRESENTATIVES, AGENTS

OR LEGAL REPRESENTATIVES, OR

CREDITORS OF ANY DECEASED PERSON;

AND ALL PERSONS UNKNOWN WHO HAVE

OR CLAIM TO HAVE ANY INTEREST, ESTATE

IN, OR LIEN OR ENCUMBRANCE UPON THE

PREMISES DESCRIBED IN THE COMPLAINT, Defendants,

and

ESTATE OF JOSEPH J. MOHNEN and

ESTATE OF ANNA MOHNEN, Intervenors and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

AURORA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE DAVID KNOFF

Judge

* * * *

ARGUED

JANUARY 10, 2023

OPINION FILED 06/26/24
* * * *

RONALD A. PARSONS, JR. of

Johnson, Janklow, Abdallah

 and Reiter

Sioux Falls, South Dakota

ALBERT STEVEN FOX of

Larson Law, P.C.

Chamberlain, South Dakota Attorneys for defendants

and appellants.

BRAD A. SCHREIBER

Pierre, South Dakota Attorney for plaintiff and 

appellee.

TIMOTHY R. WHALEN

Lake Andes, South Dakota Attorney for intervenors

and appellees.
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SALTER, Justice

[¶1.] Edward Mohnen commenced this action to quiet title to five parcels of 

land in Aurora County that have remained, at least in part, titled in his father’s 

name after he died intestate in 1969. The complaint named multiple defendants, 

including the estate of Edward’s late brother John Mohnen and the John J. Mohnen 

Trust (“John’s Trust” and collectively “John’s Estate”). In a counterclaim, John’s 

Estate alleged it held a complete fee interest in all the disputed parcels through 

adverse possession and also asserted the affirmative defense of laches. Following a 

court trial, the circuit court rejected both the laches defense and adverse possession 

theory and then determined ownership for the five tracts at issue, applying 

intestacy laws to evidence concerning the current state of record title. We reverse.

Factual and Procedural Background

[¶2.] Decades ago, Joseph and Anna Mohnen farmed and raised cattle in 

rural Aurora County. The couple also raised a large family which included fifteen 

children. Their oldest, John, became active in his parents’ farming business in the 

1960s. The Mohnen farming operation utilized five parcels of farm and pastureland 

that are at the center of this appeal. Each parcel at issue was owned by Joseph, 

Anna, John, or some combination of the three.

[¶3.] Joseph passed away in 1969 without a will. However, no one 

commenced a probate action, and none of his property was ever distributed to his 

heirs under the laws of intestate succession. Anna died in 1996, but prior to her 

death, she had executed and recorded a 1990 warranty deed, which purported to 
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convey all the farmland at issue here to John. Though Anna left a will, there was 

no effort to probate it.

[¶4.] Separate probate actions for Joseph’s estate and Anna’s estate were 

finally commenced in 2019. Shortly thereafter, Edward filed the present quiet title 

action “for the purpose of . . . determining the interest of all parties in and to such 

property.”1 Edward named as defendants John’s Estate and John’s Trust as well as 

several generic groups, including any “heirs-at-law,” “spouses of . . . unknown 

heirs,” along with “all persons unknown who have or claim to have any interest” in 

the parcels. Joseph’s estate and Anna’s estate intervened in the action. In an 

amended answer and counterclaim, John’s Estate asserted that Edward’s quiet title 

action should be barred under the doctrine of laches and that, in any event, John 

had acquired fee title to the land through adverse possession years ago under two 

separate theories.

[¶5.] The first was predicated upon SDCL 15-3-15, which allows a party to 

acquire ownership by possessing land “under claim and color of title made in good 

faith” and paying the taxes for ten successive years. John’s Estate claimed that 

John possessed the five parcels in good faith based upon Anna’s 1990 warranty deed 

and also paid the taxes for the land for at least ten successive years.

[¶6.] The second adverse possession theory was based upon SDCL 15-3-12 to 

-13, which contemplates possession for twenty years when “claiming title not 

1. While the complaint states that “[t]his action is brought for the purpose of 

determining all adverse claims to such property and quieting title thereto in 

the name of the Plaintiff or determining the interest of all parties in and to 

such property[,]” Edward does not otherwise appear to claim that he should 

be the sole owner of the parcels.
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founded upon a written instrument[.]” John’s Estate asserted, in this regard, that 

“John exclusively used, cultivated, farmed and preserved the parcels . . . and any 

permissions granted to other family members were not sufficient to defeat his 

exclusive possession.”

[¶7.] The case was tried to the circuit court. The passage of fifty-plus years 

since Joseph’s death significantly reduced the sources of evidence available to 

provide information and context concerning events implicated by the parties’ claims. 

In addition to Anna’s passing in 1996, eleven of the fifteen Mohnen children, 

including John, had also died by the time of the trial.2 Testimony was limited to 

Edward, Theresa Ishmael (Joseph and Anna’s daughter), Doris Maas (Joseph and 

Anna’s granddaughter), and Gabriel Mohnen (Joseph and Anna’s grandson and 

Theresa’s son). The evidence at trial, insofar as it went, established the following.

[¶8.] After Joseph’s 1969 death, John took over the sole responsibility for 

the farm operation until at least 1998. This included John’s unilateral control over 

the use of each of the five disputed parcels. Though Joseph’s other heirs, including 

Edward and John’s other siblings, had equitable interests in the land, there is no 

evidence that John shared the revenues from the farm with his siblings as heirs. 

2. John passed away in 2018. He had created what we have referred to as 

John’s Trust in 2016 and executed a deed purporting to transfer the five 

parcels at issue here to his Trust. John named his sister Theresa and his 

nephew Gabriel as co-trustees. At present, the co-trustees manage the land 

by collecting the rents, paying the taxes and other expenses, and making 

distributions.
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Nor is there any indication that John sought any heir’s contribution for the 

expenses of the farm, including real estate taxes.3

[¶9.] At the time of Joseph’s death, some of John’s fourteen younger siblings 

had reached the age of majority while others had not. Over time, however, all of his 

siblings moved off the family farm, with the exception of John’s brother Edward, 

who continues to live in the original family farmhouse.

[¶10.] Up until the late 1990s, Edward was a self-described “hired man” who 

earned a wage and worked at John’s direction. According to Edward, his 

responsibilities changed when John retired, at which point Edward claimed to have 

assumed management of the farm. But the evidence concerning the details of the 

continuing arrangement between John and Edward was not entirely clear.4

3. There was evidence that John assumed responsibility for his mother’s living 

expenses and those of his siblings when they were younger. This appears to 

be consistent with the widely held understanding that John would take over 

the family farm and perhaps even a paternal role vis-à-vis his younger 

siblings.

4. For instance, there was evidence that Edward paid John rent for the land, 

but the rate was noticeably low—$8,000 annually for roughly 800 acres. 

There was also testimony that John remitted this money back to Edward. 

But whatever the extent of Edward’s management, it came to an end in 2016 

when John terminated Edward’s lease and started renting the land to 

another farmer. The decision followed a series of events that called into 

question Edward’s judgment, including the realization that Edward had 

fallen victim to an online “Australian lottery” scam and had parted with large 

sums of cash through the mail in a vain effort to claim a nonexistent prize. 

Edward was also convicted of fraud for selling cattle that had been pledged as 

collateral for loans with a local bank. In a related civil action, the bank 

obtained a $67,601 judgment following Edward’s default on a loan 

agreement. John’s Trust ultimately satisfied the judgment.
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[¶11.] A title examiner testified at trial and offered an opinion as to the 

current state of record ownership for the five Mohnen parcels.5 It is clear from this 

testimony that the examiner treated Anna’s 1990 warranty deed as a quitclaim 

deed transferring only her interest in the Mohnen farm real estate to John. With 

this premise, along with John’s 2016 deed transferring all of his interest to John’s 

Trust, the title examiner listed the apparent title record holders as follows:

Parcel #1 (S1/2 NW1/4 of Section 15): Joseph Mohnen

Parcel #2 (N1/2 NW1/4 of Section 15): The John J. Mohnen 

Trust and Joseph Mohnen

Parcel #3 (NE1/4 of Section 3): The John J. Mohnen Trust and 

Joseph Mohnen

Parcel #4 (SE1/4 of Section 34): Joseph Mohnen

Parcel #5 (SW1/4 of Section 35): Joseph Mohnen.6

[¶12.] In pretrial briefing, John’s Estate argued that “[t]hese proceedings are 

a textbook case for the application of . . . laches to bar [Edward’s] extraordinarily 

untimely claims.” John’s Estate contended that Edward was “aware of John and/or 

Anna’s claim to the parcels since 1969” and hearing the action would prejudice 

John’s Estate due to the death of many of the witnesses. Joseph’s estate and Anna’s 

5. The basis for the opinion is sourced to the title examiner’s written “Owner 

and Encumbrance Report,” which contains a disclaimer stating that it “is not 

a title opinion or a title insurance policy” and is not “to be construed as a 

legal opinion of title.”

6. There was one parcel identified in the complaint for which the ownership was 

never truly disputed. This particular parcel was purchased by John alone, 

titled in his name alone, and then transferred to John’s Trust. The circuit 

court granted a directed verdict as to this parcel at trial and named John’s 

Trust as the exclusive owner in fee. That determination is not at issue in this 

appeal.
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estate, joined by Edward, claimed that “once all the facts were ascertained and 

discovered, [Edward] and [the estates of Joseph and Anna] acted promptly.”

[¶13.] In a memorandum decision, the circuit court declined to apply laches to 

bar Edward’s action, stating, “There are insufficient facts to show there was prior 

knowledge or intent by the parties to create an unreasonable delay to prejudice the 

Defendants.” The court also rejected both of John’s Estate’s adverse possession 

claims, accepting Edward’s argument that, under either statutory theory, adverse 

possession cannot occur between cotenants absent one tenant ending the other’s 

possession, commonly known as an ouster. In the court’s view, John could not 

adversely possess any of the land without “ousting” his jointly possessing cotenant 

Edward.

[¶14.] However, the circuit court also made two significant findings of fact 

that would appear to bear directly upon the specific claim that John acquired title 

by adverse possession pursuant to SDCL 15-3-15. First, the court found that 

Edward believed John did, in fact, own the land and only realized John was not the 

sole owner in 2016 after Edward tried unsuccessfully to enroll some of the land in a 

federal program. Indeed, this finding concerning Edward’s belated discovery that 

John did not own the land was central to the court’s decision not to apply the 

doctrine of laches.7

[¶15.] Second, the circuit court’s finding as to who paid the taxes and when 

seems particularly relevant to the adverse possession analysis under SDCL 15-3-15. 

7. The circuit court found that “[a]t one point in the eighties, Ed thought he may 

have an interest in the land because he and the other siblings were asked to 

sign a quit claim deed to John.” (Emphasis added.)
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The court determined that Edward paid the taxes on the land, but only from 2003 

until 2016. The evidence otherwise established that John had paid the taxes since 

he began farming the land after his father passed away, including the 13-year 

period after Anna’s 1990 warranty deed to John until 2003.8

[¶16.] In any event, after deciding that laches and adverse possession were 

inapplicable, the circuit court declared the ownership of the five parcels. Notably, 

though, the court did not accept the record ownership described above. Instead, the 

court used the “law of intestacy at the time of [Joseph’s] death” to determine the 

ownership of the disputed parcels, numerically ordered as they were above, as 

follows:

Parcel 1

Joseph’s Estate: 2/3 interest, John’s Trust: 1/3 interest

Parcel 2

Joseph’s Estate: 1/3 interest, John’s Trust: 2/3 interest

Parcel 3

Joseph’s Estate: 1/3 interest, John’s Trust: 2/3 interest

Parcel 4

Joseph’s Estate: 2/3 interest, John’s Trust: 1/3 interest

Parcel 5:

Joseph’s Estate: 2/3 interest, John’s Trust: 1/3 interest.

8. In its conclusions of law, the circuit court stated that “[w]ho paid the taxes 

was never fully established at trial.” However, when read in the context of 

the court’s findings and the evidence at trial, this conclusion appears to be a 

reference to disputed testimony concerning whether Edward actually paid the 

taxes from 2003 to 2016. For this period of time, some of the testimony 

indicated that John reimbursed Edward for any taxes he paid.
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[¶17.] John’s Estate appeals, asserting the following issues for our review:9

1. Whether the circuit court abused its discretion by not 

applying the doctrine of laches to bar Edward’s action.

2. Whether the circuit court erred when it determined John 

did not acquire title to all the affected parcels by adverse 

possession.

3. Whether the circuit court erred in its division of the 

parcels.

[¶18.] We believe that it is necessary to address only the question of adverse 

possession under SDCL 15-3-15, and, accordingly, we begin our analysis there.

Analysis and Decision

Adverse possession under SDCL 15-3-15 and ouster

[¶19.] “Proof of the individual elements of adverse possession present 

questions of fact for the [trier of fact], while the ultimate conclusion of whether they 

are sufficient to constitute adverse possession is a question of law.” Healy Ranch 

P’ship v. Mines, 2022 S.D. 44, ¶ 46, 978 N.W.2d 768, 781 (alteration in original)

(quoting Gangle v. Spiry, 2018 S.D. 55, ¶ 11, 916 N.W.2d 119, 123). “Therefore, the 

circuit court’s factual findings are reviewed for clear error, and its legal conclusions 

are reviewed de novo.” Underhill v. Mattson, 2016 S.D. 69, ¶ 9, 886 N.W.2d 348, 

352. Additionally, “[t]he claimant has the burden of proving adverse possession by 

clear and convincing evidence.” Gangle, 2018 S.D. 55, ¶ 13, 916 N.W.2d at 123 

(citing City of Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 15, 607 N.W.2d 22, 26).

9. Edward claims that our ability to conduct appellate review here is 

compromised because John’s Estate did not specifically identify which factual 

determinations of the court it considered erroneous. We disagree and 

perceive no difficulty discerning which aspects of the circuit court’s decision 

John’s Estate is challenging.
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[¶20.] The adverse possession theory set out in “SDCL 15-3-15 requires ‘(1) 

claim and color of title made in good faith, (2) ten successive years in actual 

possession, and (3) payment of all taxes legally assessed.’” Healy Ranch P’ship, 

2022 S.D. 44, ¶ 61, 978 N.W.2d at 784 (quoting Ashby v. Oolman, 2008 S.D. 26, 

¶ 12, 748 N.W.2d 132, 135). Noticeably missing from these elements, and the 

statutory text from which they are sourced, is a discrete notion of exclusivity or 

hostility.10 Compare SDCL 15-3-15 (quoted in full in footnote 10), with SDCL 15-3-

12 (requiring “actual continued occupation . . . under a claim of title exclusive of any 

other right” for adverse possession theory not based upon a written instrument 

(emphasis added)).

[¶21.] We recently noted in Healy Ranch Partnership v. Mines that our cases 

leave some question as to whether SDCL 15-3-15 requires only proof of the three 

elements identified above or whether an additional, non-textual element of 

exclusivity or hostility is also necessary. 2022 S.D. 44, ¶¶ 48–49, 978 N.W.2d at 

781–82. We observed that “[i]n some of our prior decisions, we have seemed to 

10. SDCL 15-3-15 provides in its entirety:

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.
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suggest that these [statutory] elements represent the exclusive means by which 

title is determined under SDCL 15-3-15. . . . But in other decisions we have 

indicated that an additional element of hostility applies to efforts to obtain title 

under SDCL 15-3-15, as is the case with more traditional concepts of adverse 

possession.” Id.; compare Judd v. Meoska, 76 S.D. 537, 541, 82 N.W.2d 283, 285 

(1957), and Andree v. Andree, 291 N.W.2d 788, 790 (S.D. 1980), and Hedger v. 

Aberdeen, B. & N.W. Ry. Co., 26 S.D. 491, 128 N.W. 602, 603 (1910), with Sioux City 

Boat Club v. Mulhall, 79 S.D. 668, 676–77, 117 N.W.2d 92, 96 (1962), and Barrett v. 

McCarty, 20 S.D. 75, 104 N.W. 907, 909 (1905).

[¶22.] Because we resolved the adverse possession issue on other grounds, we 

did not need to reconcile the different formulations of the adverse possession 

requirements for SDCL 15-3-15 in Healy Ranch Partnership v. Mines. However,

here, this question of statutory interpretation is squarely presented and impacts 

our resolution of the dispute before us. As such, we now hold that SDCL 15-3-15

requires only proof of “(1) claim and color of title made in good faith, (2) ten 

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

Ranch P’ship, 2022 S.D. 44, ¶ 61, 978 N.W.2d at 784 (citation omitted).

[¶23.] This interpretation finds support in our well-established rules for 

statutory interpretation that require nothing more than the application of text 

where it is plain and unambiguous, as the provisions of SDCL 15-3-15 undoubtedly 

are. See, e.g., In re Implicated Individual, 2021 S.D. 61, ¶ 16, 966 N.W.2d 578, 583. 

Grafting onto SDCL 15-3-15 a requirement of hostility, exclusivity, or, in the case of 

purported cotenants, ouster lacks fidelity to this accepted rule. It also detracts from 
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the more useful inquiry under the statute—a possessor’s good faith belief of 

ownership “under claim and color of title[.]” SDCL 15-3-15.

[¶24.] Indeed, concepts like hostility, exclusivity, or ouster seem too formulaic 

for an adverse possession claimant who is paying the taxes and has a good faith 

belief of sole ownership based upon color of title. See Fuoss v. Dahlke Fam. Ltd. 

P’ship, 2023 S.D. 3, ¶ 28, 984 N.W.2d 693, 702 (describing “the possessor’s claim to 

own the land” as “perhaps the most fundamental aspect of adverse possession”). 

The prototypical possessor asserting a successful claim under SDCL 15-3-15 would 

not perceive the need to oust another possessor or even regard another possessor as 

a cotenant. This is particularly true in a case like this one where Edward believed 

until 2016 that John was, in fact, the record owner of the five parcels.

[¶25.] Our earlier decisions applying a concept of exclusivity appear to regard

a SDCL 15-3-15 -type adverse possession claim as derived from the common law. 

But as we noted in Judd, the SDCL 15-3-15 variety of adverse possession has 

statutory origins. 76 S.D. at 540, 82 N.W.2d at 284 (noting that the 1891 statute, 

previously codified at SDC 33.0228, was modeled after an Illinois statute); 2 C.J.S. 

Adverse Possession § 229 (“The requirement for the payment of taxes and 

assessments on the disputed property as an element of adverse possession means 

that effective payments must be in accord with the requirements of statute.”). And, 

significantly, the Judd Court observed that “encourag[ing] the payment of taxes 

was in the forefront of the legislative mind [as] revealed by the context of the 

statute and by its title.” 76 S.D. at 541, 82 N.W.2d at 285.
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[¶26.] Interpreting SDCL 15-3-15 to require exclusivity would effectively 

amend the text of the statute, which does not currently state an exclusivity 

requirement, as SDCL 15-3-12 explicitly does. See Bracken v. S.D. Dep’t of Lab. & 

Regul., Reemployment Assistance Div., 2023 S.D. 22, ¶ 20, 991 N.W.2d 89, 94

(holding the “use of different text” to describe related statutory provisions “supports 

the view that the [ ] standard is not universal”); see also Antonin Scalia & Bryan 

Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) (“[W]here the 

document has used one term in one place, and a materially different term in 

another, the presumption is that the different term denotes a different idea.”). 

Reading SDCL 15-3-15 in an uncomplicated way also serves as an acknowledgment 

that judicially incorporating exclusivity or hostility into the statute’s text effectively 

adds words to it—a practice we have justifiably decried as an encroachment upon 

the province of the Legislature. See In re Estate of Flaws, 2016 S.D. 60, ¶ 44, 885 

N.W.2d 336, 349 (“Nor can we rewrite the language of the statute as this is an 

action reserved for the Legislature.”).

[¶27.] Therefore, the circuit court’s determination that John’s Estate must 

prove an ouster to prevail under its SDCL 15-3-15 adverse possession claim was 

erroneous.

The SDCL 15-3-15 elements

[¶28.] Turning, then, to the statutory elements set out in SDCL 15-3-15, we 

conclude that the record, as developed at trial by the parties and determined by the 

circuit court, establishes each. Initially, we note that Edward does not challenge 

the claim that John possessed the five parcels throughout his life, which would 
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necessarily include the successive ten-year period following Anna’s 1990 warranty 

deed and beyond. Indeed, although ouster need not be proven to prevail on an 

adverse possession claim under SDCL 15-3-15, the principal underpinning of the 

circuit court’s ouster analysis was the determination that John and Edward both 

possessed the land. See Iverson v. Iverson, 87 S.D. 628, 632, 213 N.W.2d 708, 711 

(1973) (stating that the requirement to oust a cotenant is an extension of the 

presumption that cotenants jointly occupy the premises at issue).11

[¶29.] Nor does it appear that Edward challenged John’s color of title, which 

we have defined “as that which is title in appearance, but not in reality.” Mulhall, 

79 S.D. at 675, 117 N.W.2d at 96; see also Wood v. Conrad, 2 S.D. 334, 50 N.W. 95, 

96 (1891) (“‘Color of title’ is defined to be an apparent title founded upon a written 

instrument, such as a deed, levy of execution, decree of court, or the like.”). “A deed, 

to constitute color of title, must apparently transfer title to [its] holder; not that the 

title should purport, when traced back to its source, to be an apparently legal title, 

but the instrument relied upon must profess to convey a title to the grantee.” Healy

Ranch P’ship, 2022 S.D. 44, ¶ 62, 978 N.W.2d at 784 (citing Wood, 2 S.D. 334, 50 

N.W. at 97).

11. The circuit court relied upon our decision in Iverson v. Iverson as a principal 

basis for its conclusion that ouster was required. In Iverson, we stated that 

“the mere possession by one tenant in common who receives all the rents and 

profits and pays the taxes on the property, no matter for how long a period, 

cannot be set up as a bar against the cotenants.” 87 S.D. 628, 632–33, 213 

N.W.2d 708, 711 (citations omitted). However, the adverse possession theory 

in Iverson was not a claim under SDCL 15-3-15. Both of the parties claiming 

ownership were record owners under a deed from the State of South Dakota, 

and the assertion of ownership was not made “under claim and color of 

title[.]” SDCL 15-3-15.
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[¶30.] Here, Anna’s 1990 warranty deed to John surely satisfied this 

requirement. Notably, Anna’s deed did not, as the circuit court incorrectly 

determined, merely convey her interest in the five parcels. The 1990 deed was a 

warranty deed that appeared to convey the land to John in fee. See 21 C.J.S. 

Covenants § 21 (“A warranty deed includes the grantor’s covenant that the grantor 

has good, marketable title and guarantees to the grantee the right of quiet 

possession.”). This, by the way, is consistent with virtually all the evidence relating 

to the understanding among the Mohnen children that John would own the farm, as 

Anna and Joseph had intended.

[¶31.] The additional concept of good faith describes an “honest belief[.]” 

Healy Ranch P’ship, 2022 S.D. 44, ¶ 63, 978 N.W.2d at 784 (quoting Parker v. 

Vinson, 11 S.D. 381, 77 N.W. 1023, 1024 (1899)). The determination of good faith is 

a fact question. Andree, 291 N.W.2d at 791. However, good faith, rather than bad 

faith, is presumed, and “one who challenges the good faith of the occupant in this 

type of case must overcome” that presumption. Id.; see also 2 C.J.S. Adverse 

Possession § 297 (“The presumption of good faith obtains until rebutted by proof to 

the contrary.”).

[¶32.] Our review of the record fails to reveal any indication that John’s good 

faith was litigated, or even referenced, before or during the court trial. Perhaps for 

this reason, and given its ouster determination, the circuit court also did not 

address the topic of good faith in its findings. In their appellate submissions, John’s 

Estate does address the good faith topic in its opening appellate brief, but Edward 

has not responded to the argument.
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[¶33.] Though good faith, like all adverse possession elements, is a question 

of fact, it does not appear in this case that it was a disputed issue of fact. See Healy 

Ranch P’ship, 2022 S.D. 44, 978 N.W.2d 768 (affirming the entry of summary 

judgment where there was no evidence to rebut the presumption of good faith); De 

Smet Farm Mut. Ins. Co. of S.D. v. Busskohl, 2013 S.D. 52, ¶ 13, 834 N.W.2d 826, 

831 (noting that “courts can decide [a] question [of fact] as a matter of law” when 

facts are not in dispute). From all appearances in the record, the only conclusion we 

can draw is that the issue of good faith was not litigated, and Edward has not 

presented any evidence of John’s bad faith to rebut the presumption of good faith. 

Under the circumstances, a remand here would accomplish nothing more than 

applying the presumption to resolve the issue of good faith. See State v. Foshay, 

2024 S.D. 12, 4 N.W.3d 256 (determining remanding for findings was unnecessary 

where the evidence only supported one conclusion). Edward could not, in other 

words, utilize a remand to now litigate good faith after failing to place it in issue 

during the circuit court proceeding.

[¶34.] Finally, Edward’s realization in 2016 that John did not own the land 

came long after Anna’s 1990 warranty deed to John and his subsequent payment of 

real estate taxes for the statutory ten-year period. The circuit court findings on this 

point are somewhat inferential. The court found Edward only arguably began 

paying taxes after 2003, but the court did not specifically find that John had paid 

them before that. However, the only evidence in the record is that John had paid 

the real estate taxes on this land, and we read the finding that Edward began 
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paying the taxes in 2003 to rest upon the premise that John had previously paid 

them.

Conclusion

[¶35.] The circuit court’s determination that John’s Estate cannot prevail on 

its adverse possession claim because John did not oust Edward was erroneous. We 

also conclude that the court’s findings establish each of the elements of adverse 

possession under SDCL 15-3-15. This effectively renders moot the laches question, 

the alternate adverse possession theory under SDCL 15-3-12 to -13, and the court’s 

determination of ownership shares for the five parcels. We reverse the circuit 

court’s decision denying John’s Estate’s adverse possession claim under SDCL 15-3-

15, and we remand the case for further proceedings consistent with this opinion.

[¶36.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN, 

Justices, concur.