#24526-a-JKM 

2007 SD 134 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

TERRY BROWN and SUSAN BROWN, Plaintiffs and Appellees, 

 v. 

JAMES HANSON, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

MEADE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JEROME A. ECKRICH, III 

Judge 

* * * * 

DYLAN A. WILDE of 

Brady & Pluimer Attorneys for plaintiffs 

Spearfish, South Dakota and appellees. 

BRAD P. GORDON 

ERIC J. STRAWN of 

Tellinghuisen & Gordon, P.C. Attorneys for defendant 

Spearfish, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON NOVEMBER 6, 2007 

 OPINION FILED 12/26/07 
-1- 

#24526 

MEIERHENRY, Justice 

[¶1.] James Hanson appeals from a summary judgment granted in a 

declaratory judgment action in favor of Terry Brown and Susan Brown (Browns) 

concerning the question of whether Hanson was entitled to rescind a Common Well 

and Road Easement Agreement (Easement Agreement). We affirm. 

 FACTS 

[¶2.] Browns and Hanson own adjoining real property in Meade County, 

South Dakota. A well that provides water to both properties is located on Hanson’s 

property. On June 14, 2000, Browns and Hanson entered into the Easement 

Agreement giving Browns the right to access water from the well for domestic 

purposes only. The Easement Agreement provided as follows: 

That it shall be binding upon “Brown, Hanson and their 

respective heirs, successors, and assigns, and shall be considered 

to be a covenant running with the land. The parties agree that 

the well located upon the Hanson property shall be utilized to 

provide water service to both the Hanson property and the 

Brown property. The parties each agree to use the water from 

the well for domestic purposes only and neither party shall sell 

any water from well, without written consent of the other party. 

[¶3.] In July of 2006, Browns entered into a purchase agreement to sell their 

property to a third party. Before the sale was complete, Hanson filed a letter with 

the Meade County Register of Deeds claiming he had rescinded the Easement 

Agreement. Browns commenced a declaratory judgment action to determine if 

Hanson could seek rescission as a remedy. Hanson filed an answer and a 

counterclaim seeking rescission. 

[¶4.] It is undisputed that each year from 2000 to 2005 Browns permitted 

15-20 individuals to place their tents and recreational vehicles on their property 
#24526 

-2-

during the Sturgis Bike Rally. For purposes of summary judgment, the circuit court 

considered as undisputed fact that Browns had used water for non-domestic, nonresidential purposes and thereby had breached the agreement. The only issue 

before the circuit court was whether Hanson was entitled to the remedy of 

rescission. Based upon the language of the Easement Agreement, the court 

determined that the parties did not intend to create a conditional easement but had 

created a permanent water right. The court determined that the remedy of 

rescission was not available for breach of the agreement and entered partial 

summary judgment in favor of Browns and against Hanson. Hanson claims that 

the circuit court erred when it determined that rescission was not a remedy. The 

issue on appeal is as follows: 

ISSUE 

Whether Hanson has the right to seek rescission as a remedy 

for breach of the Easement Agreement. 

STANDARD OF REVIEW 

[¶5.] “When reviewing a grant of summary judgment, ‘we must determine 

whether the moving party demonstrated the absence of any genuine issue of 

material fact and showed entitlement to judgment on the merits as a matter of 

law.’” Kling v. Stern, 2007 SD 51, ¶5, 733 NW2d 615, 617. “All facts and favorable 

inferences from those facts must be viewed in a light most favorable to the 

nonmoving party.” Hendrix v. Schulte, 2007 SD 73, ¶6, 736 NW2d 845, 847. Once 

we determine that the “material facts [are] undisputed, our review is limited to 

determining” whether the law was correctly applied. Schulte v. Progressive 

Northern Ins. Co., 2005 SD 75, ¶5, 699 NW2d 437, 438. “If any legal basis exists to 
#24526 

-3-

support the circuit court’s ruling, we affirm.” Johns v. Black Hills Power, Inc., 2006 

SD 85, ¶4, 722 NW2d 554, 556. 

ANALYSIS 

[¶6.] The parties agree that they had an express easement. An easement is 

“‘an interest in the land in the possession of another which entitles the owner of 

such interest to a limited use or enjoyment of the land in which the interest exists.’” 

Knight v. Madison, 2001 SD 120, ¶4, 634 NW2d 540, 541 (citing Gilbert v. KTI, Inc., 

765 SW2d 289, 293 (MoCtApp 1988) (citations omitted)). South Dakota law 

recognizes a “right of taking water” as an easement “that may be attached to other 

land as incidents or appurtenances.” SDCL 43-13-2. Additionally, “[t]he extent of a 

servitude is determined by the terms of the grant, or the nature of the enjoyment by 

which it was acquired.” SDCL 43-13-5. 

[¶7.] Here the parties determined the terms of the servitude by a written 

contract. The written contract involved the well and water main running from the 

well through three service lines with shut-off valves. One line serviced the home on 

the Brown property, and the other two lines serviced the home and barn on the 

Hanson property. The written contract set forth the parties’ “rights and obligations 

concerning the use of water from the water well.” The agreement provided that the 

parties would “use the water from the well for domestic purposes only, and neither 

party shall sell any water from the well, without written consent of the other party.” 

The agreement also specified that each party was responsible for the maintenance 

of the service lines on the party’s property and one-half of the cost of electricity and 

repair and maintenance of the equipment. Other provisions of the agreement 
#24526 

-4-

involved the right of access to each other’s property and to a trail running across 

Browns’ property, and apportioned the use and cost of maintenance of an access 

road. 

[¶8.] Hanson claims, pursuant to SDCL 43-13-12, that Browns’ use of the 

water for non-domestic purposes extinguished the water easement because nondomestic water use was incompatible with the nature or exercise of the easement. 

Hanson claims that since the easement was extinguished, he is entitled to seek 

rescission as a remedy. In determining the narrow issue of whether Hanson could 

seek rescission, the circuit court assumed that Browns had breached the Easement 

Agreement. 

[¶9.] South Dakota law recognizes rescission of a written contract in certain 

cases. SDCL 21-12-1. SDCL 53-11-2 provides for rescission of a written contract “in 

the following cases only:” 

(1) If consent of the party rescinding or of any party jointly 

contracting with him was given by mistake or obtained 

through duress, fraud, or undue influence exercised by or 

with the connivance of the party as to whom he rescinds, 

or of any other party to the contract jointly interested 

with such party; 

(2) If through fault of the party as to whom he rescinds, the 

consideration for his obligation fails in whole or in part; 

(3) If the consideration becomes entirely void from any cause; 

(4) If such consideration before it is rendered to him fails in a 

material respect from any cause; or 

(5) By consent of all the other parties. 

Id. Since Hanson neither alleged nor provided evidence as to any of the statutory 

factors, the circuit court correctly concluded that SDCL 53-11-2 did not apply. 

[¶10.] Consequently, Hanson’s counterclaim for a judgment of rescission is 

equitable in nature. See Northwest Realty Co. v. Carter, 338 NW2d 669, 672 (SD 
#24526 

-5-

1983). “Generally, equity will not take jurisdiction to declare a rescission where a 

party has an adequate and complete remedy at law.” Id. Further, the maxim 

consistently recognized and reiterated in the South Dakota courts, the federal 

courts and the United States Supreme Court is that “a court of equity abhors 

forfeitures, and will not lend its aid to enforce them.” Jones v. New York Guaranty 

& Indem Co., 101 US 622, 628 (1879) (refusing contract rescission on equity 

maxims). 

[¶11.] The circuit court determined that the easement was permanent in 

nature. The Browns-Hanson Easement Agreement was not limited to a set number 

of years nor was it contingent on subsequent happenings. In Steele v. Pfiefer, we 

stated that where, 

[t]here is no limitation set out in the terms of the easement or 

grant, either in years, or upon a happening of a particular event 

as a contingency . . . it has generally been held to be permanent 

in nature and would continue in operation forever, unless 

abandoned by non-use. This is particularly true where words of 

inheritance are used. (citations omitted). 

310 NW2d 782, 786-87 (SD 1981). Although Hanson does not challenge that the 

easement is permanent, he claims it was extinguished by Browns’ misuse. 

[¶12.] South Dakota law sets forth the conditions of extinguishment. The 

statute provides: “A servitude is extinguished by the performance of any act upon 

either tenement, by the owner of the servitude, or with his assent, which is 

incompatible with its nature or exercise.” SDCL 43-13-12. “The land to which an 

easement is attached is called the dominant tenement; the land upon which a 

burden or servitude is laid is called the servient tenement.” SDCL 43-13-3. “The 

extent of a servitude is determined by the terms of the grant, or the nature of the 
#24526 

-6-

enjoyment by which it was acquired.” SDCL 43-13-5. The extent of the servitude in 

this case is determined by the terms of the Easement Agreement. This Court stated 

in Knight v. Madison, “[u]nder [SDCL 43-13-5], neither the physical size nor the 

purpose or use to which an easement may be put can be expanded or enlarged 

beyond the terms of the grant of the easement.” 2001 SD 120, ¶6, 634 NW2d 540, 

542 (citation omitted); Boyer v. Dennis, 2007 SD 121, __ NW2d __. A grantee may 

not “increase the amount or extent” of use of an easement “beyond what was 

originally intended and embraced in the grant.” Halsrud v. Brodale, 72 NW2d 94, 

98 (Iowa 1955). 

[¶13.] For extinguishment to occur pursuant to SDCL 43-13-12, Browns’ 

“performance of any act” (commercial use of the water) would have to be 

“incompatible with [the servitude’s] nature or exercise.” SDCL 43-13-12. Since the 

term “incompatible” is not defined in the statute we rely on its plain and ordinary 

meaning. “Incompatible” is defined by the Merriam-Webster dictionary as 

“incapable of association or harmonious coexistence.” http//:www.merriamwebster.com, last visited December 21, 2007. The express terms of the Easement 

Agreement limited the water use to domestic purposes only. Thus, the question is 

whether Browns’ acts of using the water for more than domestic purposes is 

“incompatible;” that is, whether it is incapable of association or harmonious 

coexistence, with the “nature or exercise” of the easement. See id.

[¶14.] We have not had an occasion to apply SDCL 43-13-12 to facts involving 

misuse or overuse of an easement. In Hofmeister v. Sparks, the issue involved 

whether nonuse extinguished an easement. 2003 SD 35, ¶13, 660 NW2d 637, 641. 
#24526 

-7-

We determined that “mere nonuse” was insufficient and that the statute required 

“an affirmative act of abandonment on the part of the owner of the easement to 

extinguish the easement.” Id.; see also Graves v. Dennis, 2004 SD 137, 691 NW2d 

315. 

[¶15.] Other jurisdictions with similar statutes have used a severability test 

to determine whether misuse or overuse extinguishes an easement. California Civil 

Code § 811 (Extinguishment of Servitudes) is identical to SDCL 43-13-12. The 

California Code provides, “servitude is extinguished . . . (3) By the performance of 

any act upon either tenement, by the owner of the servitude, or with his assent, 

which is incompatible with its nature or exercise.” Id. California courts interpret 

incompatibility as follows: “The courts have interpreted this incompatibility as 

necessitating a permanent interference or an act of a nature such that thereafter 

exercise of the easement cannot be made without severe burden upon the servient 

tenement.” Buechner v. Jonas, 228 CalApp2d 127, 132 (CalApp 1964) (citing Lux v. 

Haggin, 4 P 919 (Cal 1884) (emphasis in original)). Courts have not extinguished 

easements if the increased burden can be severed from the dominant tenant’s 

entitlement and the easement can be restored to its contemplated use. See, 

Crimmins v. Gould, 149 Cal App2d 383, 392, 308 P2d 786, 792 (1957); Buechner, 

228 CalApp2d 127; Halsrud, 72 NW2d at 98. 

[¶16.] In Halsrud v. Brodale, the Iowa Supreme Court stated that, “[t]he 

general rule does not permit forfeitures for a misuse [] of the easement unless it is 

impossible to sever the increased burden in such a way as to preserve to the owner 

of the dominant tenement that to which he is entitled.” 72 NW2d at 100-01. The 
#24526 

-8-

Iowa Court found under the facts of the case that the proper remedy for misuse of 

the easement was an injunction rather than extinguishment. Id. at 99-100. We 

also find the severability test helpful in determining whether misuse compels 

extinguishment. 

[¶17.] Here, Browns’ unauthorized use (commercial use of the water) can be 

severed from the authorized domestic use described in the Easement Agreement. 

Hanson has not alleged nor shown that his domestic use was disturbed or 

diminished by the Browns’ unauthorized use, that Browns’ unauthorized use caused 

a permanent or severe burden on him, or that the residential and commercial uses 

were “incompatible” under the plain meaning of the term. Consequently, the 

unauthorized use was not of such a nature that it caused the easement to be 

extinguished. 

[¶18.] Based on the determination that Browns’ breach of the Easement 

Agreement did not extinguish the easement, the circuit court entered declaratory 

judgment that Hanson could not seek rescission as a remedy. We agree and affirm 

the circuit court on this issue. In conjunction with the declaratory judgment, the 

court also dismissed Hanson’s counterclaim, which requested rescission. Hanson 

claims that the court erred when it dismissed his counterclaim sua sponte. 

[¶19.] “Sua sponte orders of summary judgment will be upheld only when the 

party against whom judgment will be entered was given sufficient notice and an 

adequate opportunity to demonstrate why summary judgment should not be 

granted.” Myers v. Tursso Co., Inc., 496 FSupp2d 986, 993 (NDIowa 2007) 

(citations omitted). However, sua sponte orders are appropriate where “the court’s 
#24526 

-9-

ruling on issues properly raised forecloses as a matter of law the claim on which the 

court wishes to grant summary judgment sua sponte.” Id.; In re Estate of Steffen, 

467 NW2d 490 (SD 1991) (upholding a sua sponte grant of summary judgment on 

the issue of ownership rights in the marital home where a property settlement 

agreement was dispositive). 

[¶20.] Hanson based his request for rescission solely on the claim that 

Browns’ actions extinguished the Easement Agreement as a matter of law. Without 

extinguishment, Hanson’s request for rescission had no basis. The court’s ruling on 

the declaratory judgment precluded Hanson, as a matter of law, from succeeding 

against Browns on his counterclaim for rescission. The evidence regarding the 

declaratory judgment action did not differ from the evidence Hanson would have 

presented on his counterclaim. The court considered the evidence in the light most 

favorable to Hanson. Both actions - the request for declaratory judgment and the 

counterclaim - required a determination of whether Hanson was entitled to rescind 

the Easement Agreement. Once the circuit court determined that Hanson was not 

entitled to rescind, Hanson’s counterclaim for rescission was precluded as a matter 

of law. Consequently, the circuit court did not err in sua sponte dismissing 

Hanson’s counterclaim. 

[¶21.] Affirmed. 

[¶22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

ZINTER, Justices, concur.