#26583-a-GAS

2013 S.D. 86

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

DALE E. SPRINGER, DOROTHY

M. SPRINGER, ROGER A. SPRINGER

and DANIEL L. SPRINGER, Plaintiffs and Appellants,

v.

ANDY CAHOY, Defendant and Appellee,

and

DONALD L. MCCLUNG, as Trustee of the 

Donald L. McClung Trust, LEONARD M. 

MCCLUNG, as Trustee of the Leonard M. 

McClung Trust and ALL OTHER PERSONS 

UNKNOWN CLAIMING ANY RIGHT, TITLE, 

ESTATE, LIEN OR INTEREST IN THE 

COMPLAINT ADVERSE TO PLAINTIFFS’ 

OWNERSHIP OR ANY CLOUD ON 

PLAINTIFF’S TITLE, Defendants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

CLARK COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE RONALD K. ROEHR

Judge

* * * *

GARY W. SCHUMACHER

Wilkinson & Wilkinson

DeSmet, South Dakota Attorneys for plaintiffs

and appellants.

GORDON P. NIELSEN

DAVID A. GEYER of

Delaney, Nielsen & Sannes, PC

Sisseton, South Dakota Attorneys for defendant

and appellee.

* * * *

CONSIDERED ON BRIEFS

ON AUGUST 27, 2013

OPINION FILED 12/04/13
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SEVERSON, Justice

[¶1.] Dale Springer, Dorothy Springer, Roger Springer, and Daniel Springer 

(Springers) own a landlocked parcel of land and have brought suit claiming an 

implied easement over Andy Cahoy’s land. On June 24, 2011, the Third Circuit 

Court concluded that an easement implied from prior use existed. We disagreed, 

Springer v. Cahoy, 2012 S.D. 32, ¶ 11, 814 N.W.2d 131, 135, holding that “Springers 

failed to present clear and convincing evidence of an easement implied from prior 

use.” Id. We reversed and remanded. Id. On remand, Springers argued for a 

common law implied easement by necessity. On November 26, 2012, the circuit

court found the requirements for an implied easement by necessity were not met. 

And even if the requirements were met, the circuit court found relief must be denied

based on South Dakota’s Marketable Title Act (SDMTA) and Springers having an 

adequate remedy at law. We affirm the circuit court on the ground that SDMTA 

bars Springers’ common law implied easement by necessity claim.

Background

[¶2.] Springers and Cahoy own adjacent forty-acre parcels of land in Clark 

County, South Dakota. Lester Harrington owned these parcels in their unity as an 

eighty-acre parcel from 1947 to 1967. On October 13, 1967, Harrington split the 

parcel into two by deeding the east forty acres to his son George Harrington and the 

west forty acres to his daughter Lylia McClung. In 1989, George Harrington 

conveyed his east parcel to Marilyn Swanson, who subsequently conveyed the land 

to Springers on May 29, 2008. In 2004, Lylia McClung conveyed her west parcel to 
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Donald and Leonard McClung, who subsequently conveyed the land to Cahoy on 

November 26, 2007. 

[¶3.] From 1967 until 2007, the two parcels were owned separately but

rented by one person and operated as a unit. The land is primarily agricultural in 

nature, bordered by Game, Fish and Parks land to the north (currently underwater 

as a part of Swan Lake) and private land to the east and south. Cahoy’s west parcel 

has access to a public road, while Springer’s east parcel does not. As a result, 

starting in 2008, Springers crossed Cahoy’s west parcel in order to access their land. 

[¶4.] There is no written document, either recorded or unrecorded, granting 

the east parcel an easement across the west parcel. Further, there were no 

established paths through Cahoy’s property. In an attempt to stop Springers from 

crossing his property, Cahoy put up no trespassing signs in the spring of 2008. 

Then in 2009, Cahoy locked the gates that provided access to his west parcel, 

effectively blocking Springers from entry. Now barred from entry, Springers 

commenced a quiet title action on December 21, 2009, claiming an implied easement 

on Cahoy’s parcel.

[¶5.] First, Springers argued for an implied easement from prior use. The 

circuit court found that an easement implied from prior use existed but limited the 

use to agricultural ingress and egress during the spring and fall by seventy 

horsepower equipment or less using “flotation” tires. The easement route, proposed 

by Springers, meandered through Cahoy’s land. Both parties appealed. We

reversed the circuit court’s decision on the dispositive issue of whether there was an 

easement implied from prior use. Springer, 2012 S.D. 32, ¶ 11, 814 N.W.2d at 135. 
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Because the circuit court “did not find that there was a historical use of Springer’s 

proposed trail that was so continuous, obvious, and visible to make it an apparently 

permanent easement at the time of severance[,]” we held that “Springers failed to 

present clear and convincing evidence of an easement implied from prior use.” Id.

¶¶ 10-11. We remanded the case to the circuit court. Id. ¶ 11.

[¶6.] On remand, Springers argued for a common law implied easement by 

necessity. The circuit court found three separate grounds that prevented Springers 

from being entitled to an implied easement by necessity: (1) the original grantor did 

not retain ownership of any land bordering the east parcel, thus the requirements 

for an implied easement by necessity were not met, (2) an adequate remedy at law 

barred equitable relief, and (3) SDMTA barred the action because the severance 

occurred in 1967, outside the Act’s twenty-two year provision. Springers appeal.

Standard of Review

[¶7.] We review the circuit court’s conclusions of law under the de novo 

standard and findings of fact under the clearly erroneous standard. Eagle Ridge 

Estates Homeowners Ass’n, v. Anderson, 2013 S.D. 21, ¶¶ 12-13, 827 N.W.2d 859, 

864-65 (citations omitted). A finding is clearly erroneous when, after reviewing the 

entire record, we are left with a “definite and firm conviction that a mistake has 

been committed. The credibility of the witnesses, the import to be accorded their 

testimony, and the weight of the evidence must be determined by the trial court, 

and we give due regard to the trial court’s opportunity to observe the witnesses and 

examine the evidence.” Id. (internal quotation marks and citations omitted).
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Analysis

[¶8.] “The common law recognizes two types of implied easements: 

easements by necessity and easements implied from prior use.” Thompson v. E.I.G. 

Palace Mall, LLC, 2003 S.D. 12, ¶ 11, 657 N.W.2d 300, 304. Springers seek a 

common law implied easement by necessity after failing to obtain an easement 

implied from prior use. An implied easement by necessity “can occur when a 

grantor conveys to another an inner portion of land surrounded by lands owned by 

the grantor or the grantor and others. Unless a contrary intent is manifest, the 

landlocked grantee will be entitled to have a right-of-way across the retained land of 

the grantor for ingress and egress.” Id. The necessity for access over the grantor’s 

land must have arisen at the time of severance, in addition to a present necessity. 

Magnuson v. Cossette, 707 N.W.2d 738, 746 (Minn. Ct. App. 2006); Cobb v. 

Daugherty, 693 S.E.2d 800, 808-09 (W. Va. 2010); see Thompson, 2003 S.D. 12, ¶ 13, 

657 N.W.2d at 305. See generally 25 Am. Jur. 2d Easements and Licenses § 35

(2013). 

[¶9.] In order to determine whether there was a necessity at the time of 

severance, the circuit court found that it must trace back to the date of the unitary 

parcel’s severance. The circuit court concluded that because it had to trace back 

more than twenty-two years to the land severance in 1967, any claim created by 

that severance would be barred by SDCL chapter 43-30, also known as South 

Dakota’s Marketable Record Title Act (SDMTA). We agree.

[¶10.] South Dakota’s Marketable Title Act
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[¶11.] The South Dakota Legislature instituted SDMTA in 1947. Currently, 

SDCL chapter 43-30 encompasses SDMTA. The stated legislative purpose of 

SDMTA is to “simplif[y] and facilitat[e] land title transactions by allowing persons 

to deal with the record title owner[.]” SDCL 43-30-10. SDMTA furthers that 

purpose by “extinguish[ing] ancient title claims and defects[.]” Tvedt v. Bork, 414 

N.W.2d 11, 13 (S.D. 1987). Collectively, SDMTA functions as a curative act, a 

recording act, and as a statute of limitations. See Wichelman v. Messner, 83 N.W.2d 

800, 816 (Minn. 1957).

[¶12.] When interpreting the statutory language of SDMTA, “we begin with 

the plain language and structure of the statute.” Magellan Pipeline Co., LP v. S.D.

Dep’t of Revenue & Regulation, 2013 S.D. 68, ¶ 9, 837 N.W.2d 402, 404 (quoting In 

re Pooled Advocate Trust, 2012 S.D. 24, ¶ 32, 813 N.W.2d 130, 141). “When the 

language in a statute is clear, certain, and unambiguous, there is no reason for 

construction, and this Court’s only function is to declare the meaning of the statute 

as clearly expressed.” Id. (citation omitted).

[¶13.] First, SDCL 43-30-1 specifies who is entitled to have marketable 

record title: 

Any person having the legal capacity to own land in this state, 

who has an unbroken chain of title to any interest in land by 

himself and his immediate or remote grantors for a period of 

twenty-two years or longer, and is in possession of such land, 

shall be deemed to have a marketable record title to such 

interest, . . . .

Springers have not disputed Cahoy’s chain of title or his possession of the west 

parcel. Also, Springer’s have not raised Cahoy’s chain of title or possession as an 

issue. Therefore, Cahoy’s marketable record title of the west parcel is not disputed.
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[¶14.] Then, SDCL 43-30-3 limits the interests, claims, or charges that may 

be brought against that marketable record title:

Such marketable title shall be held by such person and shall be 

taken by his successors in interest free and clear of all interest, 

claims, and charges whatever, the existence of which depends in 

whole or in part upon any act, transaction, event, or omission 

that occurred twenty-two years or more prior thereto, whether 

such claim or charge be evidenced by a recorded instrument or 

otherwise, and all such interest, claims, and charges affecting 

such interest in real property shall be barred and not 

enforceable at law or equity, unless any person making such 

claim or asserting such interest or charge shall, on or before 

twenty-three years from the date of recording of deed of 

conveyance under which title is claimed, or on or before July 1, 

1958, whichever event is the latest in point of time, file for 

record a notice in writing, duly verified by oath, setting forth the 

nature of his claim, interest, or charge; and no disability nor 

lack of knowledge of any kind on the part of anyone shall 

operate to extend his time for filing such claim after the 

expiration of twenty-three years from the recording of such deed 

of conveyance or one year after July 1, 1957, whichever event is 

the latest in point of time.

[¶15.] In this case, Lester Harrington severed his parcel of land into two 

separate parcels in 1967. The severance left the east parcel without an access to a 

public right of way. Springers, with no public access, eventually claimed a common 

law implied easement by necessity over Cahoy’s west parcel.1 Springers’ initiated 

their claim in 2009. But their claim’s existence depends on an act that occurred in 

 

1. Springer’s claim of an implied easement by necessity is within the expansive 

definition of the “claims barred” by SDMTA stated in SDCL 43-30-11:

The claims hereby barred shall mean any and all interests of 

any nature whatever, however denominated, whether such 

claims are asserted by a person sui juris or under disability, 

whether such person is, or has been within or without the state, 

and whether such person is natural or corporate or private or 

governmental.
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1967—the severance and conveyance of land that created the alleged necessity. 

Forty-two years separate the act in 1967 that created the alleged necessity and 

Springers’ claim in 2009. According to SDCL 43-30-3, marketable record title is free 

from claims that exist upon any act that occurred twenty-two or more years prior to 

the claim against marketable record title. Consequently, Cahoy’s marketable 

record title in the west parcel is free from Springers’ common law implied easement 

by necessity claim. 

[¶16.] Springers argue that their claim is not barred because their 

transactions that acquired the east parcel occurred within twenty-two years. But 

their argument misinterprets and misapplies SDMTA. SDMTA applies to any 

claim based in “whole or in part upon any act . . . that occurred twenty-two years or 

more prior thereto[.]” SDCL 43-30-3 (emphasis added). Because Springers’ claim 

depends upon the initial severance and conveyance that occurred in 1967, which is 

outside of the twenty-two years provision, SDMTA bars their claim.

[¶17.] SDMTA also functions as a recording act in that it provides a method 

by which an owner may preserve their claim or interest. SDCL 43-30-3 preserves a 

claim or interest if notice is recorded “on or before twenty-three years from the date 

of recording of deed of conveyance under which title is claimed[.]” In this case, 

Springers claim title under a common law theory of implied easement by necessity. 

The 1967 warranty deed that created the landlocked parcel created the claimed

necessity. Therefore, the 1967 warranty deed is the “deed of conveyance under 

which title is claimed.” See SDCL 43-30-3. The 1967 warranty deed’s “date of 

recording” is February 26, 1975. See id. So, Springers or their predecessors were 
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required to record a notice in writing setting forth the nature of their claim on or 

before twenty-three years from February 26, 1975. Springers, however, have 

provided no evidence of a recorded notice satisfying those requirements. The notice 

provision of SDCL 43-30-3, therefore, did not preserve Springers’ claim.

[¶18.] The Florida Supreme Court faced a similar issue in H & F Land, Inc. 

v. Panama City-Bay Cnty. Airport & Indus. Dist., 736 So. 2d 1167 (Fla. 1999). 

There, a conveyance in 1940 caused a small piece of land to become both water- and 

landlocked. In 1992, H & F acquired the small piece of land. In 1996, H & F filed a 

lawsuit asserting a common law way of necessity. Fifty-six years separated the 

creation of the way of necessity in 1940 and the lawsuit in 1996. The Florida 

Supreme Court stated Florida’s Marketable Record Title to Real Property Act 

(FLMTA) functions much like a statute of limitations requiring “stale demands to 

be asserted within a reasonable time after a cause of action accrued.” Id. at 1176 

(citation omitted). In other words, a claimant of an easement or their predecessors

had to file a claim for a common law easement of necessity within the prescribed 

period in order to preserve the easement from extinguishing under FLMTA. Id. 

The Florida Court found that no easement was recorded, so FLMTA extinguished H

& F’s claim of a common-law way of necessity. Id.

[¶19.] We agree with the Florida Court, in that SDMTA also functions much 

like a statute of limitations requiring stale demands to be asserted within an 

SDMTA-defined period. In this case, like in H & F Land, no easement or claim was 

filed for notice within SDMTA’s statutory period. Therefore, SDMTA effectively 
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extinguished Springers’ claim of a common law implied easement by necessity.2 See 

3 Patton & Palomar on Land Titles § 563 (2013) (stating Marketable Record Title 

Acts may extinguish common law ways of necessity); Larson v. Hammonasset 

Fishing Ass’n., Inc., 1996 WL 156014, at *3 (Conn. Super. Ct. 1996) (stating that the 

Marketable Record Title Act would have extinguished the plaintiffs’ right of way 

because the plaintiffs and their predecessors had failed to file a notice pursuant to 

the provisions of the Act), aff’d, 688 A.2d 373 (Conn. App. Ct. 1997).

Conclusion

[¶20.] We hold that SDMTA bars Springers’ claim of a common law implied 

easement by necessity because it depends in whole or in part upon the initial 

severance of the land that occurred twenty-two years or more prior to Springers’

claim on Cahoy’s marketable title. Also, Springers or their predecessors in interest 

did not preserve their claim by recording it within SDMTA’s statutory period. 

Accordingly, we affirm the circuit court on the ground that SDMTA bars Springers’ 

action. Because this holding disposes of the ultimate issue of whether Springer’s 

are entitled to an implied easement by necessity, we need not address the other 

issues. 

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

WILBUR, Justices, concur.

 

2. The record shows that Springers did not seek a remedy under SDCL chapter 

31-22, which provides a right to access from an isolated tract to a highway. 

Since the issue has not been raised, we do not address the potential 

applicability of this remedy. See Blanton v. City of Pinellas Park, 887 So. 2d 

1224 (Fla. 2004) (holding that FLMTA does not apply to extinguish a valid 

claim to a statutory way of necessity).