Background
The Luziers and Hemmahs own adjacent lakefront lots — Lot 9 and Lot 8, respectively — within the Ramona Beach subdivision on Pickerel Lake in Day County, South Dakota, a subdivision platted in 1925. The dispute arose after the Hemmahs applied for a variance to build a garage on their property in 2024, prompting the Luziers to file an adverse possession action claiming ownership of a substantial strip of the Hemmahs’ land. The claimed strip ran along the boundary between the two lots and encompassed two garages: a small garage dating to 1948 that had been moved onto Lot 8, and a large garage built in 1997 that extended across the lot line between the parties’ outlots.
A 2014 survey commissioned by the Hemmahs before they purchased their property confirmed that both garages encroached onto what is now the Hemmahs’ land. The Luziers, unaware of the survey at the time, argued that decades of use — including mowing, landscaping, and the garages themselves — had ripened into adverse possession. They also amended their complaint to add a boundary acquiescence theory. Following a two-day bench trial in May 2025, the circuit court denied adverse possession but sua sponte granted prescriptive easements for both encroaching garages.
The Luziers appealed, challenging the circuit court’s credibility assessment of deposition witnesses, the denial of adverse possession, and the scope of the prescriptive easements. The Hemmahs filed a notice of review contesting the grant of any prescriptive easement.
The Court’s Holding
The South Dakota Supreme Court unanimously affirmed on all issues. On adverse possession, the court held that the Luziers failed to prove the occupancy element — requiring either a substantial enclosure or usual cultivation or improvement of the disputed land — by clear and convincing evidence. The court agreed with the circuit court that the “use of land line” claimed by the Luziers resembled an “invisible line” connecting disparate objects rather than a meaningful enclosure, and that the conflicting mowing and maintenance testimony did not compel a finding of usual cultivation under the heightened standard of proof. Because occupancy is a threshold prerequisite to a justiciable adverse possession claim, the court declined to address the remaining elements.
On the prescriptive easements, the court rejected the Hemmahs’ argument that the garage encroachments were permissive. As to the small garage — in place since 1948 — no evidence of permission existed. As to the large garage built in 1997, the prior owner’s deposition testimony that he told a predecessor to move the garage, but never confirmed it was moved far enough and never raised the issue with the Luziers, supported the circuit court’s finding of hostile use. The court found no clear error in granting easements limited to the footprint of the garages and the immediately adjacent area necessary for their maintenance and operation.
The court also rejected the Luziers’ request to expand the large-garage easement by fifteen feet to protect underground earth anchors, finding the proposal overinclusive given the imprecise expert testimony about anchor length. And it held that the Luziers’ belated request for a separate five-foot lake access easement — raised only in objections to the proposed judgment, not in the pleadings or post-trial brief — was waived and not properly before the court.
Key Takeaways
- Adverse possession in South Dakota requires proof by clear and convincing evidence of occupancy through either a substantial enclosure or usual cultivation or improvement; failure on that threshold element ends the inquiry.
- A claimed boundary line that connects disparate objects without any continuous physical or visual marker is an “invisible line” insufficient to constitute a substantial enclosure under SDCL 15-3-13.
- A prescriptive easement for an encroaching structure may be granted even when the claimant never pleaded it, so long as the issue is properly raised at trial, but the easement’s scope is limited to the structure’s existing footprint and what is strictly necessary for its maintenance and historical use.
- A claim for an additional prescriptive easement raised for the first time in objections to a proposed judgment — after trial and after the court’s merits ruling — is waived on appeal.
- Trial courts are not required to formulaically apply credibility factors to deposition testimony; a court may reasonably treat conflicting deposition evidence as a wash when it lacked the opportunity to observe demeanor, and appellate courts will defer to that assessment under the clear error standard.
Why It Matters
This decision reinforces the demanding nature of South Dakota’s adverse possession framework, particularly the occupancy prerequisite. Lakefront and subdivision property owners often rely on long-standing use patterns — mowing, landscaping, structures — to claim ownership of disputed strips, but Luzier illustrates that courts will scrutinize whether those uses amount to a legally cognizable enclosure or cultivation of the specific disputed parcel, not merely activity in the general vicinity. The case also serves as a practical warning that neighbors who discover boundary encroachments through surveys should proceed carefully: withholding survey results, as the Hemmahs did here, did not ultimately prejudice the outcome, but the ensuing litigation underscores how costly boundary disputes become once relationships deteriorate.
For practitioners, the decision clarifies the interplay between adverse possession and prescriptive easements when a claimant overreaches. The Luziers lost their bid for outright ownership but retained the ability to keep both garages in place through prescriptive easements — a narrower but still meaningful remedy fashioned by the circuit court and approved on appeal. Attorneys advising clients with encroaching structures should consider prescriptive easement claims as a fallback theory and ensure they are pleaded at the outset, since Luzier confirms that belated requests will be treated as waived.