#27692-a-DG

2016 S.D. 69

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

RON UNDERHILL, Plaintiff and Appellant,

v.

ROCKY MATTSON, BARBARA

MATTSON, CARMEN WALTON and

ALL OCCUPANTS WHO HAVE OR

CLAIM ANY INTEREST OR ESTATE

IN OR LIEN OR ENCUMBRANCE

UPON THE PREMISES DESCRIBED

IN THE COMPLAINT, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

LAWRENCE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE RANDALL L. MACY

Judge

* * * *

DAVID L. CLAGGETT of

Claggett & Dill, Prof. LLC

Spearfish, South Dakota Attorneys for plaintiff and 

appellant.

TIMOTHY R. JOHNS of

Johns & Kosel, Prof. LLC

Lead, South Dakota Attorneys for defendants and 

appellees.

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 29, 2016

OPINION FILED 09/28/16
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GILBERTSON, Chief Justice

[¶1.] Ron Underhill appeals the circuit court’s denial of his claims for quiet 

title and conversion in relation to a garage located on his land. The circuit court 

denied these claims after determining that Carmen Walton and Rocky and Barbara 

Mattson (collectively, “Defendants”) acquired the garage and a small area of land 

surrounding it (collectively, “the Property”)1 through adverse possession. We 

affirm.

Facts and Procedural History

[¶2.] This suit involves several properties located along Taylor Avenue in 

Deadwood, South Dakota: Lots 8A, 59, 60, and 61 of Block 35. Taylor Avenue is a 

north–south street that terminates in a dead end on the north. Lot 59 is the 

northernmost lot abutting Taylor Avenue on the west, with Lots 60 and 61 

sequentially lying to the south of Lot 59. Lot 8A abuts Taylor Avenue on the east, 

opposite Lot 61. Taylor Avenue’s northern terminus curves slightly to the 

northwest and actually lies on Lots 59 and 60. The disputed property in this case 

consists of a one-car garage and the land on which it sits, which also lies on Lots 59 

 

1. A survey conducted in 2003 describes the disputed area as follows:

A parcel of ground beginning at a point where the SE Corner of 

Lot 60, Block 35 of the P.L. Rogers Map of the City of Deadwood 

intersects with Taylor Avenue and running N 54° 05′ 33′′

43.76 feet to the point of beginning of said parcel claimed by 

adverse possession; thence N 52° 31′ 01′′ W 30.41 feet to point 

#2; thence N 52° 10′ 00′′ W 38.69 feet to point #3; thence 

S 19° 52′ 43′′ 11.72 feet to point #4; thence S 54° 27′ 37′′ E 

76.85 feet to point #5; thence N 10° 58′ 54′′ W 2.77 feet to point 

#6; thence along the curved line, the arc length of which is 

36.13 feet with a chord bearing N 57° 13′ 07′′ E to the point of 

beginning. All which is located on a portion of Lots 59 and 60, 

Block 35, Original Townsite of the City of Deadwood, Lawrence 

County, South Dakota.
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and 60, abutting Taylor Avenue’s northern terminus. The property sits on a hillside 

with an ascending slope to the north and steep drop-offs to the south and west. 

[¶3.] Carmen Walton is the current record owner of Lot 8A, where she 

resides with her parents.2 Walton purchased Lot 8A and the home located thereon 

from the Mattsons on January 30, 2001. The Mattsons purchased the lot and home 

from James and Doris Kennedy on February 10, 1976. The Kennedys purchased 

the lot and home from Ole and Mary Peterson on April 23, 1952. The Petersons 

acquired the property in 1914, and Ole constructed the garage in 1935. Each of the 

foregoing owners used the garage during their ownership of Lot 8A. 

[¶4.] The various owners of Lot 8A have a history of using and maintaining 

the garage. During the time Mattsons owned Lot 8A, their children used the area 

around the garage as a playground, and Rocky Mattson installed fencing to prevent 

their children from falling down the steep slopes. He also conducted repairs to the 

property, including reroofing the garage and stabilizing the hillside adjoining one 

wall of the garage. Walton and her father poured a concrete floor and driveway, 

raised and straightened the building, adjusted the garage doors, inserted new 

supports in the interior, painted the exterior, removed a tree behind the garage, and 

replaced the roof. Mr. Walton landscaped the property by placing 10 tons of gravel 

around the garage to improve water drainage. He also used a skid loader to level 

areas of the property and built a retaining wall to help prevent the garage from 

losing structural integrity.

 

2. The lot on which the home sits was originally designated Lot 8. In 2001, 

following a survey of the area, lot lines were adjusted and the portion of the 

former Lot 8 on which the home sits was designated Lot 8A.
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[¶5.] Underhill is the current record owner of Lots 59, 60, and 61. Underhill 

resides in a home located on Lot 61, which he acquired sometime in the year 2000. 

Underhill purchased Lots 59 and 60 from Martin C. Guth around September 26, 

2012. Guth obtained a total of 19 lots, including Lots 59 and 60, from RTD 

Development Co. on April 6, 1973. 

[¶6.] Ownership of the garage did not come into question until the 1990s. In 

1995, Mattsons first learned that the garage was located on Lots 59 and 60 and that 

those lots were owned by Guth. In 1997, the Deadwood City Attorney notified Guth 

that the garage and Taylor Avenue’s northern terminus were located on Lots 59 and 

60. Guth, who lived in Wisconsin at the time, was unaware that the garage existed 

or that the various property owners of Lot 8A had been using it for decades.3 

Mattsons communicated with Guth several times about formally purchasing the 

property, but apparently no agreement was reached. 

[¶7.] Subsequent to purchasing Lots 59 and 60, Underhill initiated this suit 

to quiet title in the disputed property on July 8, 2013. He also sought damages and 

punitive damages, alleging that Walton’s continued use of the garage amounted to 

conversion. A trial before the circuit court was held on October 14, 2015. The court 

concluded that Walton had acquired the disputed property by adverse possession

through her predecessors in interest. The court denied Underhill’s request to quiet 

title and held that consequently, Underhill’s conversion claim was moot.

[¶8.] Underhill appeals, raising two issues: 

 

3. Guth was living in New Mexico at the time he sold Lots 59 and 60 to 

Underhill in 2012. The circuit court noted: “None of the witnesses had ever 

met or seen Martin Guth.”
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1. Whether the circuit court erred by denying Underhill’s 

claim for quiet title.

2. Whether the circuit court erred by denying Underhill’s 

claim for conversion.

Standard of Review

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

questions of fact for the [circuit] 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 S.D. 29, ¶ 9, 607 N.W.2d 22, 25 (quoting Lewis v. 

Moorhead, 522 N.W.2d 1, 3 (S.D. 1994)). Therefore, the circuit court’s factual 

findings are reviewed for clear error, and its legal conclusions are reviewed de novo. 

Id.

Analysis and Decision

[¶10.] 1. Whether the circuit court erred by denying 

Underhill’s claim for quiet title.

[¶11.] The circuit court concluded that Defendants acquired the disputed 

property by adverse possession. Adverse possession occurs when there is (1) an 

occupation that is (2) open and notorious, (3) continuous for the statutory period, 

and (4) under a claim of title exclusive of any other right. SDCL 15-3-12; Titus v. 

Chapman, 2004 S.D. 106, ¶ 27, 687 N.W.2d 918, 925. As the parties asserting 

adverse possession, Defendants have the burden of establishing these elements by 

clear and convincing evidence. Summit, 2000 S.D. 29, ¶ 15, 607 N.W.2d at 26. 

[¶12.] The primary dispute in this case is whether Defendants actually 

occupied the Property. Because Defendants’ claim is “not founded upon a written 

instrument, or judgment, or decree,” the Property will only be deemed adversely 
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possessed if it has been (1) “protected by a substantial [enclosure]” or (2) “usually 

cultivated or improved.” SDCL 15-3-13. Although the circuit court concluded that 

“the subject property has been continually occupied for a period of some 80 years by 

Walton and her predecessors in title[,]” the court did not specify which of these 

disjunctive conditions it relied on in reaching that conclusion. Defendants argue 

that their occupation of the Property is established by either condition. Because we 

conclude Defendants usually cultivated or improved the property, we do not address 

whether the Property was substantially enclosed.

[¶13.] The circuit court’s factual findings support the conclusion that 

Defendants occupied the Property by virtue of cultivating and improving it. We 

have explicitly held that “regular mowing of the property constitutes cultivation 

under SDCL 15-3-13(2).” Lewis v. Aslesen, 2001 S.D. 131, ¶ 8, 635 N.W.2d 744, 747. 

We have also explicitly held that “landscaping is an improvement to land under 

SDCL 15-3-13(2).” Id.; see also Schultz v. Dew, 1997 S.D. 72, ¶ 15, 564 N.W.2d 320, 

324 (recognizing the addition of gravel to a driveway as an improvement). On this 

issue, the circuit court made a number of relevant factual findings: 

12. The garage sits on an excavated portion of Lots 59 and 60. 

Excavations have been made continuously at least since the 

time the garage was built.

. . . .

23. During the time the Mattsons owned [Lot 8A], Mr. Mattson 

did repairs to the garage including reroofing and stabilization of 

the hillside adjoining one wall of the garage.

24. During the time the Mattsons and Ms. Walton have owned 

[Lot 8A], they have cut the grass on the subject property and 

continue to remove soil from the areas previously excavated by 

their predecessors in title, Ole Peterson and James Kennedy.

25. The garage in question has been there for approximately 

80 years. The garage and the subject property on which it sits 
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has been continuously developed and maintained during that 

time.

. . . .

27. Defendant Walton and her father, Robert Walton, have done 

work to the garage (which is listed as a historical structure) 

including pouring a concrete floor in the garage and a concrete 

driveway; raising and straightening the building and adjusting 

the garage doors; inserting new supports in the interior; 

painting the exterior of the garage; removed a tree behind the 

garage which was impinging upon the structure; and tearing off 

the old roof covering and installing plywood on the roof and then 

putting new shingles on the roof. Mr. Walton has also 

landscaped the property to correct the drainage by means of 

tiling so that water will drain away from the garage and by 

placing 10 tons of gravel on the area around the garage. Mr. 

Walton used a [skid loader] to level out certain areas of the 

subject property and he built a retaining wall to keep the garage 

safe from sliding down the hill or otherwise losing its structural 

integrity.

These findings are sufficient to support the conclusion that Defendants and their 

predecessors in title improved the Property within the meaning of SDCL 15-3-13(2).

[¶14.] Even so, Plaintiff argues that a number of the circuit court’s factual 

findings are erroneous. According to Plaintiff, “no evidence exists that anyone 

actually ‘excavated’ the land[,]” “[n]o pictures or documentary proof of any . . . fence 

were ever produced[,]” and “no retaining wall was constructed on the subject 

property[.]” Yet, each of these assertions is contradicted by Defendants’ testimony, 

which the court apparently found credible. The circuit court heard testimony that 

Walton, the Mattsons, and the Kennedys excavated various areas of the Property. 

Likewise, Rocky Mattson testified that he erected a fence and retaining wall behind 

the garage. Defendants’ testimony is evidence even though disputed by Plaintiff, 

see Magner v. Brinkman, 2016 S.D. 50, ¶ 16, 883 N.W.2d 74, 82, and Plaintiff’s 

contrary view of the evidence is not sufficient to leave us with “a definite and firm 
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conviction that a mistake has been made[,]” Summit, 2000 S.D. 29, ¶ 9, 607 N.W.2d 

at 25. Therefore, the circuit court’s relevant factual findings are not clearly 

erroneous, and we conclude Defendants established the first element of adverse 

possession.

[¶15.] The second element of adverse possession that Defendants must 

establish is that their occupation of the Property was open and notorious. The 

purpose of this element is to give the record owner notice of the occupation. “[T]he 

adverse use must be made in such a way that a reasonably diligent owner would 

learn of its existence, nature, and extent.” Hamad Assam Corp. v. Novotny, 

2007 S.D. 84, ¶ 11, 737 N.W.2d 922, 926 (quoting Restatement (Third) of Property: 

Servitudes § 2.17 (Am. Law Inst. 2000)). Notably, this standard is an objective one. 

Although Guth was apparently unaware of the presence of the garage or its use by 

the owners of Lot 8A, his lack of awareness is attributable solely to his absence from 

the Property and not to any concealment of the occupation by Defendants and their 

predecessors. Therefore, Defendants’ occupation of the Property was open and 

notorious.

[¶16.] Next, Defendants must prove that their occupation was continuous for 

the statutory period. In South Dakota, the statutory period for adverse possession 

is 20 years. SDCL 15-3-1; Estate of Billings v. Deadwood Congregation of Jehovah 

Witnesses, 506 N.W.2d 138, 141 (S.D. 1993). Although Walton has not claimed 

ownership of the Property for such a length of time, “the principle of ‘tacking’ allows 

[her] to add [her] own claim[] to that of previous adverse possessors under whom 

[she] claims a right of possession.” Estate of Billings, 506 N.W.2d at 141. Thus, 
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Walton’s 12-year occupation of the Property is added to the Mattsons’ 25-year 

occupation, the Kennedys’ 24-year occupation, and the Petersons’ 17-year 

occupation. Moreover, “adverse possession occurs by operation of law and does not 

require an action to commence it, nor to continue it.” Rotenberger v. Burghduff, 

2007 S.D. 19, ¶ 16, 729 N.W.2d 175, 180 (quoting Johnson v. Biegelmeier, 

409 N.W.2d 379, 382 (S.D. 1987)). In other words, the owners of Lot 8A may have 

acquired ownership of the Property as early as 1955, and the duration of the 

Mattsons’ occupation of the Property was alone sufficient to meet the statutory 

period.

[¶17.] Finally, Defendants’ occupation of the Property must have been under 

a claim of title exclusive of any other right. This element does not require wrongful 

intent on the part of the adverse possessor. “Possession of property is adverse to the 

true owner . . . even though such occupancy . . . was due to mistake and without an 

intention to claim the land of another.” Estate of Billings, 506 N.W.2d at 141. The 

owners of Lot 8A have each used and treated the Property as their own since the 

garage was first constructed. Additionally, the exclusivity of the title they claim is 

demonstrated by Walton’s response to Plaintiff’s entry into and use of the garage in 

December 2000 and January 2001. Just prior to Walton moving into Lot 8A, 

Plaintiff moved personal property into the garage. Walton’s father advised Plaintiff

that he was trespassing on Walton’s property. Plaintiff capitulated and removed 

his property from the garage. Thus, we also conclude that Defendants have 

established the fourth element of an adverse-possession claim and that the circuit 

court did not err in denying Plaintiff’s claim for quiet title.
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[¶18.] 2. Whether the circuit court erred by denying 

Underhill’s claim for conversion.

[¶19.] Plaintiff argues that “Mattsons’ and Walton’s use of the property since 

September of 2012, after Underhill purchased the property, clearly constitutes 

conversion.” This argument is meritless. As Plaintiff acknowledges in his own 

brief, “[c]onversion is the unauthorized exercise of control or dominion over personal 

property in a way that repudiates an owner’s right in the property or in a manner 

inconsistent with such right.” First Am. Bank & Tr., N.A. v. Farmers State Bank of 

Canton, 2008 S.D. 83, ¶ 38, 756 N.W.2d 19, 31 (emphasis added) (quoting Chem-Age 

Indus., Inc. v. Glover, 2002 S.D. 122, ¶ 20, 652 N.W.2d 756, 766). Plaintiff has 

failed to identify any property apart from the real property at issue in his quiet-title 

claim. Even if Plaintiff’s view of the law was correct, he did not acquire Lots 59 and 

60 until 2012—long after the 20-year statute of limitations had expired on 

Defendants’ adverse possession of the Property. See supra ¶ 16. Thus, the circuit 

court did not err in denying Plaintiff’s claim for conversion.

Conclusion

[¶20.] Defendants established by clear and convincing evidence that they and 

their predecessors in interest have continually occupied the Property for at least 20 

years and that such occupation has been open and notorious and under a claim of 

title exclusive of any other right. Therefore, Defendants have met their burden of 

proving the elements of adverse possession, and the circuit court did not err in 

denying Plaintiff’s claim to quiet title. Plaintiff has failed to identify any personal 

property taken by Defendants; therefore, the circuit court did not err in denying 

Plaintiff’s claim for conversion. 
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[¶21.] We affirm.

[¶22.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.