SD Supreme Court sends reverses decision in Salem family easement dispute

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The South Dakota Supreme Court ruled recently in a McCook County lawsuit over a family's gravel pit easement, reversing a decision and sending it to a civil trial.

The case was considered through submitted briefs in February and an opinion was filed Oct. 14. Justice Mark Salter wrote the opinion, with the court’s other four justices concurring. The ruling sided with appellants Mark and Kelly Heumiller, ruling that the circuit court had erred in its original ruling.

They had originally brought a lawsuit against defendants Rob and Mary Hansen, John Heumiller and Cletus and Shirley Heumiller, seeking a preliminary injunction and alleging the existence of an easement allowing access to a gravel pit on their property. Cletus and Shirley are Mark Heumiller’s parents and Mary and John are Mark Heumiller’s sister and brother.

The case centers around a gravel pit in Brookfield Township, located northeast of Salem. The gravel pit has been on the land of Cletus and Shirley Heumiller for more than 50 years, with Cletus working with different companies to mine and haul the gravel. An access road running mostly north and south through the middle-south half of the property allowed large trucks to reach the pit. The Heumiller’s six living children include Mark Heumiller, Mary Hansen and John Heumiller.

In 2006, Cletus and Shirley entered into a contract for deed with Mark and his wife, Kelly, to sell the north half, or 160 acres, of the land. The contract for deed did not include provisions about the access road, which was located on land owned by Cletus and Shirley but rented to sons Mark Heumiller and Tom Heumiller. When the contract for deed was completed in 2017, it included a warranty deed, which also did not specifically mention an easement for the gravel pit access road.


The dispute arose in 2017 and 2018 over the southern part of the half-section of land, gifting half of the land to son John and the other half to daughter Mary. Cletus and Shirley maintained the interior 80 acres with the access road and rented the land to sons Mark and Tom. In 2018, Mark and Tom tried to renegotiate the lease and rent from Cletus and Shirley for the same price, but Cletus testified that he wanted additional rent for Mark’s use of the access road, and Mark disagreed and refused to pay additional rent.

Once the lease expired, three of the Heumiller children attempted to block Mark and Tom from using the access road, which brought Mark and Kelly Heumiller to court to seek a preliminary injunction, which the circuit court granted. In a later hearing, the court rejected Mark and Kelly Heumiller’s easement claims and granted partial summary judgment to Mary, Rob and John in the case. A claim for a prior use easement from Mark and Kelly Heumiller sided with Cletus and Shirley, concluding that the parents had no intention to create permanent easement rights.

In his opinion, Salter wrote that the Supreme Court’s precedent involving prior use includes using a four-pronged test and did not properly consider whether “the use had been so long continued and so obvious as to show that it was meant to be permanent,” with the circuit court instead attempting to resolve whether the access road was permanent based on the anticipated need for future repairs, which included a failing bridge.

He wrote that as of January 2017, when the warranty deed severance was denoted, the use of the road for accessing the gravel pit had continued for so long and was so obvious as to show it was meant to be permanent when applying the long-held standard.

“By concentrating on the need for future repairs instead of the nature of the access road’s prior use, the circuit court erred,” Salter wrote.

Salter wrote that additional disputed issues of material fact as they apply to the prior use test included whether the easement was necessary for the proper and reasonable enjoyment of the land. The circuit court determined there was a lack of necessity by equating the possible bridge cost with that of building an entirely new road exclusively on Mark and Kelly’s property.

“However, the relative costs associated with the repairs and construction are not matters of undisputed fact,” Salter wrote. “Indeed, the record contains little specific evidence of the cost to build the new road, and there is no evidence relating to the cost of repairing the current access road. Under the circumstances, the court lacked a sufficient basis to determine the necessity element as a matter of law given the paucity of information in the record.”

“Under the circumstances, we believe the circuit court erred when it granted the appellees’ motion for summary judgment,” Salter stated in conclusion.

Traxler is the assistant editor and sports editor for the Mitchell Republic. He's worked for the newspaper since 2014 and has covered a wide variety of topics. He can be reached at
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