#24602-rev & rem-JKK 

2008 SD 54 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

KENNETH M. TONSAGER, SR. and 

DARLENE M. TONSAGER, Plaintiffs and Appellants, 

 v. 

DAVID LEROY LAQUA, Defendant and Appellee, 

WALL LAKE SANITARY DISTRICT, Third Party Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE KATHLEEN K. CALDWELL 

Judge 

* * * * 

MICHAEL E. UNKE of 

Unke Law Office Attorney for plaintiffs 

Salem, South Dakota and appellants. 

 

JENNIFER L. LARSEN of 

Hagen, Wilka & Archer, PC Attorneys for defendant and 

Sioux Falls, South Dakota appellee David Laqua. 

PAUL H. LINDE of Attorneys for defendant and 

Schaffer Law Office, Prof., LLC appellee Wall Lake Sanitary 

Sioux Falls, South Dakota District. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON JANUARY 7, 2008 

 OPINION FILED 06/25/08 
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KONENKAMP, Justice 

[¶1.] This is a dispute between adjoining landowners on the extent and 

meaning of an easement granted to a sanitary sewer district. The circuit court 

concluded that the easement was private, and therefore, the neighboring landowner 

could not access the public sewer system through the adjoining landowner’s 

property. Because the easement was granted to a sanitary sewer district, a 

governmental entity, and the district clearly accepted the grant by its use of the 

sewer facilities, the court erred in declaring the easement private. We reverse and 

remand. 

Background 

[¶2.] Kenneth, Sr. and Darlene Tonsager (plaintiffs) brought suit against 

their neighbor David Laqua (defendant), seeking a permanent injunction and 

damages for covenant and easement violations. Defendant counterclaimed for a 

permanent injunction and damages on allegations that plaintiffs’ sewer pipes 

passed under his property without his permission and without an easement 

allowing the encroachment. Both properties are served by a centralized sanitary 

sewer system, owned and maintained by the Wall Lake Sanitary District. Just 

inside defendant’s lot line there is a sewer lift station dedicated to the Sanitary 

District. When plaintiffs bought their property in 1998, plaintiffs’ sewer line was 

connected to that lift station, as required by the Sanitary District. Defendant 

acquired his property in 2004 from his father, who purchased it from Donald E. 

Larson, the owner who executed the easement in question. 
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[¶3.] Plaintiffs responded to defendant’s counterclaim by bringing a thirdparty complaint against Wall Lake. They asserted that Wall Lake was liable for 

any damages plaintiffs suffered as a result of Wall Lake’s failure to obtain the 

proper easement for the sewer lines. Wall Lake moved for summary judgment on 

plaintiffs’ third-party complaint, contending that plaintiffs failed to provide notice 

as required by SDCL 3-21-2, the statute of limitations had expired, and sovereign 

immunity barred the suit. All parties moved for summary judgment. 

[¶4.] In its grant of summary judgment to defendant on his counterclaim, 

the court ruled: “I find that the easement granted to Wall Lake is an easement in 

gross. There is no language in the easement dedicating the easement to public use 

and it can be inferred that [defendant] did not intend and would not want this 

easement to Wall Lake to be extended to the public at large.” In so holding, the 

court concluded that only a private easement existed. Plaintiffs were ordered to 

immediately disconnect and remove all sewer piping on defendant’s property. As to 

Wall Lake’s motion, the circuit court granted summary judgment against plaintiffs 

for all the reasons asserted by Wall Lake. Plaintiffs appeal both grants of summary 

judgment.1 Because we conclude that the court erred in granting summary 

judgment to defendant, the summary judgment for Wall Lake becomes moot. 

 (continued . . .) 

1. Under our familiar standard, “[w]hen reviewing a grant of summary 

judgment, we decide only whether there were genuine issues of material fact 

and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98, 

¶19, 704 NW2d 875, 882 (citing SDCL 15-6-56(c); Keystone Plaza 

Condominiums Ass’n v. Eastep, 2004 SD 28, ¶8, 676 NW2d 842, 846). “We 

view the evidence in a light most favorable to the nonmoving party.” Toben 

v. Jeske, 2006 SD 57, ¶9, 718 NW2d 32, 35 (citing Wilson v. Great Northern 

R.R. Co., 83 SD 207, 212, 157 NW2d 19, 21 (1968)). The moving party has 
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__________________ 

(. . . continued) 

Analysis and Decision 

[¶5.] Plaintiffs assert error in the circuit court’s decision to grant summary 

judgment on defendant’s sewer line counterclaim. According to plaintiffs, the Wall 

Lake easement unambiguously dedicates defendant’s property to the public. They 

point out that Larson, the previous owner of defendant’s property, “knew that two 

other property owners would connect” to the sewer line on his property. Plaintiffs 

also argue that because the easement’s purpose is for Wall Lake to construct and 

maintain sewer facilities for the benefit of multiple users, “the nature of the 

enjoyment by which [the easement] was acquired” gives them the right to cross 

defendant’s property to connect to those facilities.2 See SDCL 43-13-5. Wall Lake 

Sanitary District joins in plaintiffs’ position, noting that “the trial court’s order 

essentially prevents Wall Lake from providing access to a necessary sewer system.” 

[¶6.] An easement’s extent must be ascertained from the document itself: if 

its words are plain and unambiguous, “the matter is concluded.’” Salmon v. 

Bradshaw, 84 SD 500, 505-06, 173 NW2d 281, 284 (1969) (citation omitted). “The 

the burden of showing “the absence of any genuine issue of material fact and 

entitlement to judgment as a matter of law.” Yarcheski v. Reiner, 2003 SD 

108, ¶15, 669 NW2d 487, 493 (citing S.D. Dept. of Rev. v. Thiewes, 448 NW2d 

1, 2 (SD 1989)). 

2. As further proof for the existence of a public dedication, plaintiffs point to the 

plat filed by defendant with the Minnehaha Register of Deeds office. This 

plat was only submitted by plaintiffs after the court granted summary 

judgment against them, when they moved for reconsideration. The court 

denied the motion. Defendant objects to our consideration of this plat 

because it was not considered by the circuit court. In keeping with our longstanding policy, we will not accept evidence not considered by the circuit 

court. 
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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. 

[¶7.] In support of his motion for summary judgment, defendant submitted 

an affidavit stating, “At no time have I granted an easement for the public use of 

the sewer facilities located on my property, and have no knowledge that any prior 

owner of my property has granted an easement dedicated to the public use for such 

purposes.” In 1991, however, the prior owner of defendant’s property, Donald E. 

Larson, executed a “Sewer System Easement,” which states in part: 

GRANTOR, hereby grant [sic] to the Wall Lake Sanitary 

District, . . . a permanent easement for the purpose of surveying, 

locating, staking, constructing, installing, maintaining and 

inspecting sewer lines, manholes, cleanouts, pump vaults, valves 

and other facilities related thereto over, under, across and 

through the following described real property in Minnehaha 

County, South Dakota . . . together with the right of ingress and 

egress over such lands and any adjacent lands owned by 

GRANTOR, his successors and assigns for the purposes of this 

easement. 

. . . 

The rights, conditions and provisions of this easement shall 

inure to the benefit of, and is binding upon, the heirs, successors 

and assigns of the parties hereto and shall constitute a covenant 

running with the land for the perpetual benefit of the 

GRANTEE, its successors and assigns.3

3. This document was prepared by the engineering firm of DeWild Grant 

Reckert and Associates Company of Rock Rapids, Iowa, presumably on behalf 

of the Sanitary District. 
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From reading this document, our question is whether a plain reading or a “just and 

sound” construction will render this easement a public dedication. 

[¶8.] Wall Lake Sanitary District is a political subdivision incorporated 

expressly to provide a sewage system for the residents of its district. See SDCL 

34A-5-1; SDCL 34A-5-14; SDCL 34A-5-26(4). Although the word “public” cannot be 

found in the easement, the language of this document clearly grants a “perpetual” 

easement to a public entity. Binding on the grantor’s “heirs, successors and 

assigns,” the easement is specifically for “constructing, installing, maintaining and 

inspecting sewer lines, manholes, clean outs, pump vaults, valves and other 

facilities thereto over, under, across and through” defendant’s property. 

[¶9.] An easement may be dedicated to public use if the owner clearly acts to 

so dedicate it and the public entity accepts the dedication. Tinaglia v. Ittzes, 257 

NW2d 724, 728-29 (SD 1977) (citations omitted); see also Bergin v. Bistodeau, 2002 

SD 53, ¶¶15-17, 645 NW2d 252, 255-56. Defendant concedes that in certain 

circumstances, when the grantee of an easement is a public entity, such easement 

may grant rights to public use.4 Nonetheless, defendant contends that a dedication 

to public use was not plainly manifested in this easement. But this Court has long 

recognized “the universal rule of law that no particular form of dedication is 

necessary[;] if the same is in writing, no particular wording is necessary.” City of 

Watertown v. Troeh, 25 SD 21, 125 NW 501, 503 (1910) (citation omitted). 

4. SDCL 34A-5-14 provides: “Such sanitary district, created and established 

under this chapter, shall be a governmental subdivision of this state and a 

public body, corporate and politic.” 
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Moreover, as Justice Whiting wrote in Troeh, “the intent to dedicate may be shown 

by the use of the land in question.” Id. (citing Mason v. City of Sioux Falls, 2 SD 

640, 51 NW 770 (1892). While the grantor of the easement, Larson, still owned the 

property defendant now occupies, plaintiffs hooked their sewer pipe to the lift 

station on Larson’s land.5

[¶10.] Still, defendant persists that Wall Lake Sanitary District never 

accepted the public dedication of the easement. Although a minority of courts have 

required a formal acceptance, the “well-bedded” rule, acknowledged in South 

Dakota for almost a century, is that “if the principals have, by their conduct, 

accepted the dedication, it is of no great importance that the agents have taken no 

action in the matter.” Id. No one questions that Wall Lake has continued to use 

the sewer lines and facilities here since the easement was granted. 

[¶11.] To accept defendant’s claim that this “easement is for the benefit of 

the Sanitary District only” is to forsake the very reason the sanitary district exists 

— for the benefit of its residents. See SDCL 34A-5-1. The circuit court erred as a 

matter of law in granting summary judgment to defendant on his sewer pipe 

counterclaim. We remand for entry of an order of summary judgment for plaintiffs 

on this issue. 

 (continued . . .) 

5. See also Wildwood Ass’n v. Harley F. Taylor, Inc., 2003 SD 98, ¶16, 668 

NW2d 296, 302: 

A dedication may occur by express grant or by legal implication. 

Brown v. Bd. of County Comm’rs for Pennington County, 422 NW2d 

440, 442 (SD 1988) (citation omitted). A dedication is implied where “it 

arises by operation of law from the owner’s conduct and the facts and 

circumstances of the case.” Tinaglia v. Ittzes, 257 NW2d 724, 729 (SD 
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(. . . continued) 

[¶12.] Reversed and remanded. 

[¶13.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and 

MEIERHENRY, Justices, concur. 

1977) (quoting McQuillin, Municipal Corporations § 33.02 (3rd Rev 

Ed)).