Gangle v. Spiry
916 N.W.2d 119, 2018 SD 55 (2018)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Permissive use of a property granted by a landowner to an individual continues to their successor in interest and does not become hostile for the purposes of adverse possession unless the successor makes a positive and unequivocal assertion of a right hostile to the owner that is brought to the owner's knowledge.
Facts:
- In 1968, A. William Spiry purchased Lot 1 from Max Sckerl.
- Shortly after, Gary Gangle's father purchased the adjacent pasture land from Sckerl.
- In 1969, Gangle and his father constructed a barbed-wire fence that enclosed a small portion of Spiry's Lot 1 with their pasture land, despite knowing the fence was on Spiry's property.
- Upon discovering the fence in the summer of 1969, Spiry gave Gangle's father verbal permission to keep the fence in place and use the enclosed portion of Lot 1.
- In 1975, Gangle's father passed away, and Gangle eventually acquired his father's pasture land.
- Gangle continued to use the disputed portion of Spiry's property for grazing cattle in the same manner as his father for the next 40 years.
- In 1976, Spiry placed three fence posts near the property line to indicate his continued ownership of the property east of the fence.
Procedural Posture:
- Gary Gangle filed an action in the circuit court to quiet title to a portion of A. William Spiry's property, claiming ownership by adverse possession.
- Spiry filed a counterclaim to quiet title to a different, adjacent property, also by adverse possession.
- Prior to the bench trial, Spiry voluntarily moved to dismiss his counterclaim, and the court granted the dismissal.
- Following a bench trial, the circuit court found in favor of Gangle, holding that Spiry's permission to Gangle's father did not apply to Gangle.
- The circuit court entered a final judgment quieting title in Gangle's favor and dismissed Spiry's counterclaim with prejudice.
- Spiry, as the appellant, appealed the circuit court's judgment to the South Dakota Supreme Court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a landowner's permission for use of property granted to a predecessor in interest automatically terminate upon transfer of the property, thereby making the successor's continued identical use of the property hostile for the purpose of an adverse possession claim?
Opinions:
Majority - Kern, Justice
No. A permissive use of property does not become hostile for the purposes of adverse possession merely by the transfer of the dominant estate to a successor. For a permissive use to ripen into a hostile claim, the successor must perform an unequivocal act of hostility and provide notice of that hostile claim to the true owner. Here, Spiry granted Gangle's father permission to use the disputed property. This permission continued to Gangle as his father's successor. Gangle's use of the property never changed from that of his father's; he continued the same permissive use. He undertook no positive or unequivocal action to put Spiry on notice that his use had become hostile. Therefore, Gangle failed to establish the hostility element required for adverse possession.
Analysis:
This decision establishes a key precedent in South Dakota regarding the continuity of permissive use in adverse possession cases. It clarifies that permission granted to a predecessor in interest is not automatically revoked upon transfer of property to a successor. The ruling places a significant burden on the adverse claimant to affirmatively and overtly repudiate the prior permissive arrangement to initiate the statutory period for adverse possession. This protects landowners who grant informal permission, preventing them from losing property rights simply because the neighboring land changes hands.
