author: KONENKAMP, Justice. ZINTER, Justice SABERS, Justice MEIERHENRY, Justice (dissenting).

text:
    2005 SD 114
    Judith A. ATKINSON, Plaintiff and Appellant, v. CITY OF PIERRE, a municipality, S. Ellwein, Inc., d/b/a Tour Ice, Inc., Stephen C. Ellwein, d/b/a Tour Ice, Defendants and Appellees.
    No. 23387.
    Supreme Court of South Dakota.
    Considered on Briefs on March 21, 2005.
    Decided Nov. 16, 2005.

      Judith A. Atkinson, Pierre, South Dakota, Pro se appellant.

      John L. Brown, Margo D. Northrup of Riter, Mayer, Wattier & Brown, Pierre, South Dakota, Attorneys for appellee City of Pierre.
    Brett Koenecke of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for appellee S. Ellwein, Inc. d/b/a Tour Ice, Inc., Stephen C. Ellwein, d/b/a Tour Ice.
   KONENKAMP, Justice.

[¶ 1.] In this mandamus action on alleged nuisance and zoning ordinance violations, we affirm the circuit court’s judgment denying relief.

Background

[¶ 2.] Defendant Tour Ice began its retail business in 1978. Consisting of a mobile home and garage, it was first located at 420 South Henry Street, Pierre, South Dakota, one block west of its current site at 425 South Central Avenue. The business moved to the latter address in 1991, when its new icé plant was completed. Since its inception, it has operated for thirty-two years in a zone classified as the central business district. Now, at the rate of 100,000 pounds a day, it produces, packages, and sells cube and block ice to retail establishments. Refrigerated trucks deliver its ice products within a 140-mile radius. In 1992, Stephen Ellwein, Inc., purchased the business.

[¶ 3.] Plaintiff Judith A. Atkinson lives on the second floor of a twelve-unit apartment building at 420 South Central Avenue, in the same business district. She has resided there since December 1996. Her apartment has three windows facing the Tour Ice facilities across the street. She prefers to keep all her windows open throughout the year, including the winter months. When the weather is cold, the temperature in her apartment is still hotter than she prefers, and opening her windows is her only solution. Besides enjoying the fresh air for its own sake, she does not feel that she should have to close her windows merely to reduce the noise coming from Tour Ice.

[¶ 4.] Atkinson finds the noise intolerable, nonetheless. According to her, “the general sound level of the compressor and fans running are equal to a vacuum cleaner or a freight _ train running through [her] bedroom.” Tour Ice begins its business day early in the morning when its delivery trucks start up, load ice, and depart for the day’s destinations. This surge of noise wakes Atkinson up, but she also objects to the constant, twenty-four-hour a day noise coming from the compressors, cooling fans, cooling towers, and ice augers. Some of the noises are disturbing because they are irregular, like the compressor that kicks on and off every ten to twelve minutes. Although Tour Ice attempted to remedy, or at least muffle, its various machine noises, Atkinson insists that the noise has only increased over time because of expansion. Using a sound meter she purchased over the Internet, Atkinson measured the noise level in her bedroom at seventy to seventy-five decibels when the compressor and fans are operating. More noise occurs when trucks parked outside the facility run their cooling units all night.

[¶ 5.] The classification of the current central business district was adopted in 1970 through the Pierre City Ordinances. The purpose of the 1970 ordinance was to provide for the widest range of retail and service establishments in the area. In 1999, however, the city adopted a more detailed statement of purpose for the central business district, narrowing the range of permitted uses. The apartment building Atkinson lives in was permitted in the district as a conditional use.

[¶ 6.] Since Ellwein’s purchase, Tour Ice has not changed the nature of its business, although it has expanded its infrastructure. In 1993, the city granted Ell-wein a building permit for an addition. In 1997, Ellwein purchased lots adjacent to the existing building, and, at a cost of $100,000, a new metal building was attached to the existing structure. At that time, the city again issued a building permit, allowing Ellwein to add on to the building. Improvements to the site included the installation of additional cooling fans, a refrigerator and compressor unit, and two large ice making machines. Along with its expansion, the company’s activities have created an increased level of noise. Under the 1999 zoning ordinance amendments, however, Tour Ice was considered a permitted use because it was a longstanding business in the area. Accordingly, the company was not required to apply to the city for non-conforming use status by obtaining a variance for either its use or its building.

[¶ 7.] After its second building addition in 1997, Atkinson complained directly to Tour Ice’s management. Then she delivered a petition to the owner signed by eight neighbors. In response, the company’s attorney sent Atkinson a letter stating that the business conforms to the city’s zoning ordinances. Subsequently, the city issued its own letter, explaining that the company was operating as a preexisting business within the zoning district. Atkinson protested to the Pierre City Council, but to no avail.

[¶ 8.] Atkinson brought suit against Tour Ice alleging that its business activities constitute a nuisance and that it violates city zoning laws. She sought to prohibit the business “from operating a manufacturing plant, a storage depot, and a wholesale business!.]” She also asked for an injunction against noise during non-business hours. Her suit against the city sought a writ of mandamus to make the city enforce its ordinances against Tour Ice. In trial, the company’s owner, Stephen Ellwein, conceded, “Just so ... everybody understands what we are talking about, we manufacture ice. I mean, that’s a given.” Following a court trial, the circuit court found in favor of Tour Ice and the city, ruling that the business was a permitted preexisting use because it predated the 1999 ordinance and was in compliance with the 1970 zoning ordinance. Atkinson now appeals, raising the following issues for our review: (1) whether the circuit court’s determination that Tour Ice’s activities did not constitute a nuisance was palpably unreasonable; (2) whether the zoning ordinances were properly interpreted; (3) and whether the circuit court abused its discretion in denying her requested writ of mandamus.

Standard of Review

[¶ 9.] Because cities have the power to declare nuisances, their decisions should be upheld unless they are “ ‘palpably unreasonable.’ ” Union County v. Hoffman, 512 N.W.2d 168, 170 (S.D.1994) (quoting Town of Colton v. South Dakota Cent. Land Co., 25 S.D. 309, 312-13, 126 N.W. 507, 508 (1910)); SDCL 9-29-13. We will not set aside a trial court’s findings of fact unless they are clearly erroneous. Hoffman, 512 N.W.2d at 170. “ ‘A finding is “clearly erroneous” when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made.’” Id. (citation omitted).

[¶ 10.] “We interpret zoning laws according to the rules of statutory construction and any rules of construction included in the enactments themselves.” City of Marion v. Rapp, 2002 SD 146, ¶ 5, 655 N.W.2d 88, 90 (citing Cole v. Bd. of Adjustment of Huron, 2000 SD 119, ¶ 7, 616 N.W.2d 483, 485; Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D.1994)). “The interpretation of an ordinance presents a question of law reviewable de novo.” Id. (referencing Even v. City of Parker, 1999 SD 72, ¶ 8, 597 N.W.2d 670, 673). We review the grant or denial of a writ of mandamus for abuse of discretion. Lang v. Western Providers Physician Org., Inc., 2004 SD 107, ¶ 7, 688 N.W.2d 403, 406 (citing Black Hills Cent. R.R. Co. v. City of Hill City, 2003 SD 152, ¶ 9, 674 N.W.2d 31, 34).

Analysis and Decision

A. Nuisance

[¶ 11.] Atkinson argues that the “inaction by the City of Pierre towards the noise created by Tour Ice [is] palpably unreasonable.” She maintains that the business should be declared a nuisance. Its operation, Atkinson asserts, unreasonably violates, invades, and interferes with her private use and enjoyment of her leasehold interest in her apartment.

[¶ 12.] “[A] claim for nuisance may be brought under statutory or common law nuisance theories.” Collins v. Barker, 2003 SD 100, ¶ 16, 668 N.W.2d 548, 553. Nuisance is defined in SDCL 21-10-1:

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;
(4) In any way renders other persons insecure in life, or in the use of property.

In SDCL 21-10-3, the Legislature differentiates between public and private nuisances: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal. Every other nuisance is private.” Available remedies against nuisances are: “(1) A civil action; (2) Abatement; and (3) In cases of public nuisance only, the additional remedy of indictment or information as prescribed by statute and rules relating thereto.” SDCL 21-10-5.

[¶ 13.] The Restatement Second of ToRts sets forth the common law elements required to establish a private nuisance cause of action, which this Court recognized in Kuper v. Lincoln-Union Electric Company, 1996 SD 145, ¶ 49, 557 N.W.2d 748, 761. See Collins, 2003 SD 100, ¶ 17, 668 N.W.2d at 554; Restatement (Second) of ToRts §§ 822, 824-25 (1979). Under the Restatement, the following conduct gives rise to a claim of nuisance:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckléss conduct, or for abnormally dangerous conditions or activities.

Restatement (Second) of ToRts § 822 (1979). “The conduct making an actor liable ‘may consist of (a) an act; or (b) failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate ... the invasion of the private interest.’ ” Collins, 2003 SD 100, ¶ 17, 668 N.W.2d at 554 (quoting Restatement (Second) of ToRts § 824 (1979)). “An actor’s invasion is considered ‘intentional if the actor (a) acts for the purpose of causing it, or (b) knows that it is resulting or is substantially certain to result from his conduct.’ ” Id. (quoting Restatement (Second) of Torts § 825 (1979)).

[¶ 14.] In his testimony, the owner of Atkinson’s apartment complex, Harvey Buhl, said that Atkinson complained to him once, but that no other tenants complained. He explained that the building in which Atkinson resides has the highest occupancy rate of all Buhl’s residential rental properties, notwithstanding Tour Ice’s location across the street.

[¶ 15.] Kathy Arnold testified that she has lived in the same apartment building on the second floor for seven years. Even when she left her windows open, she said Tour Ice had never inconvenienced her or her family, and the company’s operations were not noticeable. Mayor Dennis Eis-nach of the City of Pierre also testified. He confirmed that no other complaints from any other residents around the ice facility were filed. He recalled that upon learning of the nuisance complaint, he ensured that city officials were in compliance with the ordinances and confirmed that the officials were doing what was required of them.

[¶ 16.] In its findings of fact, the circuit court found “no evidence that indicates that Tour Ice is operating improperly or negligently.” The court also suggested to Atkinson that since she always has her windows open throughout the year, she could decrease her exposure to the noise by closing them. With regard to the degree of noise, the court found that the decibel level was “in the top of the normal range but no where near a danger reading.”

[¶ 17.] Although two others from the apartment complex besides Atkinson testified in accord with her position, under our standard of review and applying the foregoing legal analysis, we cannot say that the circuit court’s fact findings were clearly erroneous or that its legal conclusions were in error when it concluded that Tour Ice’s operation did not constitute a nuisance. SDCL 9-29-13 provides: “Every municipality shall have power to declare what shall constitute a nuisance and prevent, abate, and remove the same.” Within a city’s express authority is the implied power to declare what shall not constitute a nuisance. We cannot say that the city’s refusal to declare Tour Ice’s operation a nuisance was palpably unreasonable. Moreover, we can find no error in the court’s refusal to declare the business a private nuisance.

B. Interpretation of Zoning Ordinances

[¶ 18.] Atkinson argues that city officials failed to properly interpret the applicable zoning ordinances. Because Tour Ice produces, packages, stores, and delivers ice from its premises, Atkinson contends that its business activities are impermissible in the central business district zoning area. Referring to the 1999 amendments to the city zoning ordinances, she asserts that the central business district only permits assembling and packaging businesses as a conditional use. Tour Ice never obtained a conditional use permit for such use, and therefore she contends it cannot continue to operate.

[¶ 19.] Tour Ice began its operation in 1973. Thus it was subject to the 1970 version of the city’s zoning laws. When it moved to its new location within the same district in 1991, the city interpreted its ordinances to the effect that the company was not required to seek a variance or conditional use permit. The 1999 amendments would not apply to it because under those amendments Tour Ice’s operation constituted a nonconforming use allowed to continue as long as it was in compliance with prior zoning restrictions. See Rapp, 2002 SD 146, ¶ 6, 655 N.W.2d at 90 (citing SDCL 11-6-39). Furthermore, the building permits it sought were before the enactment of the 1999 amendments. Accordingly, even if the operation can accurately be described as an assembling and packaging business, the applicable 1970 zoning laws would not preclude it.

[¶ 20.] Atkinson next argues that Tour Ice is a warehouse. Under the 1970 version of the city zoning ordinances, warehouses are prohibited in the central business district. PiERRE City ORD. § 12-6-104 (1970). If it is a warehouse, then it would have required a variance. It never received one. According to the testimony, the company’s process is to produce, package, and store ice until it is ready for delivery. The circuit court found that “Tour Ice sells all the ice it makes each night and stores ice in a real warehouse in Sturgis, South Dakota.” From our re-view of the record, we think the court’s finding can be supported as not clearly erroneous. City zoning laws do not define the term warehouse, but the ordinary understanding of the term suggests a building or structure designed primarily for storage. That is not the purpose of the building here. It is used to make ice that is stored until shipment, usually the next day.

[¶ 21.] A more difficult question is whether the business can be characterized as manufacturing. Manufacturing businesses are not permitted in the central business district because, under PiERRE City Ord. § 12-6-103 (1970), such district may contain “other light retail and service establishments approved by the Planning Commission, except those uses enumerated in another district.” Manufacturing is a use specifically enumerated in the light industrial district. In defining his business, Ellwein candidly admitted, “we manufacture ice ... that’s a given.”

[¶ 22.] Before moving to its current location, Tour Ice, operating under its former owners, applied for a building permit for 430 South Henry Street. The permit application shows that the proposed use for the building was for “ice manufacturing.” A notation on it states that it was seeking a “special permit for ice manufacture.” According to the city’s building official, Norm Weaver, when the city approved the permit it was only for the building structure which before that time had not met the building codes. But the use of the building for making ice may have required a variance, which the former owners never obtained. Whether a vari-anee is required rests on the meaning of the word “manufacture.”

[¶ 23.] In most instances, we would simply resort to the definition provided in the zoning ordinance, but the 1970 version of Pierre’s ordinance does not define the term. A few courts have addressed the question whether the production of ice is manufacturing, usually in the context of taxation. The Louisiana Supreme Court held that the production of ice by artificial means constitutes manufacturing. Ballard v. Kentwood Ice Mfg. & Bottling Works, Ltd., 147 La. 583, 85 So. 598, 599 (1920). In Ballard, the court, without expressing any rationale, held that a business that made and sold ice, meal, ice cream, soda water, and pop, and converted hogs into pork products was a manufacturer. In dicta in People v. Knickerbocker Ice Co., 99 N.Y. 181, 1 N.E. 669 (1885), the court distinguished between the artificial production of ice and the collection and distribution of river ice, explaining, “No doubt ice may be manufactured and frigorifie effects produced by artificial means. Corporations exist for that purpose, and come literally within our manufacturing laws.” Id. at 670. See also Attorney General v. Belle Isle Ice Co., 59 Mich. 157, 26 N.W. 311 (1886) (naturally formed ice collected and reduced by manual labor and machinery to a form adapted for sale and use is “manufactured”).

[¶ 24.] On the other hand, the Pennsylvania Supreme Court held to the contrary. In Commonwealth v. American Ice Co., 406 Pa. 322, 178 A.2d 768 (1962), the court ruled that the artificial production of ice on a commercial basis did not constitute manufacturing. Because there is no lasting change when water is frozen, the court reasoned:

Ice is not a new article. It is still what it was originally — water. In fact, if it is allowed to remain in a warm temperature it reverts to water without any human or mechanical interposition. This cannot be said of any product which is generally accepted to be a manufactured product.... The appellant argues that since, through the process which it applies to water, water acquires a new shape, the resulting product must, therefore, be a manufactured article, but the new shape which we find in a manufactured article must be a permanently new shape.

Id. at 771-72. See also Armour & Co. v. Pittsburgh, 363 Pa. 109, 69 A.2d 405, 409 (1949) (same holding).

[¶ 25.] Given this division of opinion among courts, all we need to ask is whether the city’s interpretation of its own ordinance is unreasonable. As the circuit court wrote, “[a]lthough making ice also could arguably be categorized as ‘manufacturing,’ the city official’s interpretation that making ice is not manufacturing will not be disturbed where the existing use by Tour Ice predates the 1999 ordinance.” The term was not defined in the 1970 version of the ordinance. To now impose a court-made definition would have the effect declaring unlawful an existing thirty-two year business. We would be supplying a meaning to a word in the ordinance that the city has never given to it. “Zoning laws may not operate retroactively to deprive property owners of prior vested rights by preventing a use that was lawful before the enactment of the zoning laws.” Rapp, 2002 SD 146, ¶ 6, 655 N.W.2d at 90.

[¶ 26.] Even if we were to declare today that the making of ice constitutes manufacturing as that term is used in the Pierre zoning ordinances, we would exceed the powers granted under the writ of mandamus to require Tour Ice to cease, or curtail operations. A “writ of mandamus may be issued ... to compel the performance of an act which the law specially enjoins as a duty....” SDCL 21-29-1. “Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right.” Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242. Mandamus can only issue when the duty to act is unequivocal. Black Hills Cent. R.R. Co., 2003 SD 152, ¶ 13, 674 N.W.2d at 34. With the lack of a definition in the city’s zoning ordinance and the difference of opinion on whether ice making is a manufacturing operation, the city’s duty to act is hardly unequivocal.

[¶27.] We have a business here that has always acted with the. city’s formal blessing. As the circuit court reasoned, “Tour Ice received building permits from the City of Pierre for the construction of additional facilities on the location,” and in doing so, the company was authorized to expand its business. If the city issued those building permits in violation of its public or official duty, mandamus still would not lie to compel the undoing of a completed act. See Crowley v. Spearfish Indep. Sch. Dist., 445 N.W.2d 308, 311 (S.D.1989); Beresford Indep. Sch. Dist. v. Fletcher, 66 S.D. 500, 287 N.W. 497, 498 (1939). We think the circuit court correctly denied relief.

[¶ 28.] Atkinson raises several other issues which either lack sufficient merit for discussion or were not raised at the time of trial. Thus, we decline to address them. Knudson v. Hess, 1996 SD 137, ¶8, 556 N.W.2d 73, 75.

[¶ 29.] Affirmed.

[¶ 30.] GILBERTSON, Chief Justice, concurs.

[¶ 31.] ZINTER, Justice, concurs specially.

[¶ 32.] SABERS and MEIERHENRY, Justices, dissent.

ZINTER, Justice

(concurring specially).

[¶ 33.] I concur and write to highlight two points.

[¶ 34.] First, although the dissents spend numerous pages discussing facts that could support a finding of unreasonable noise (a nuisance), Judge Gors listened to the opposing witnesses, found their credibility more persuasive, and ultimately found for Tour Ice on this issue. Therefore, although the dissents’ selection of facts may appear to make a case for a nuisance, this appellate retrial of facts is not permitted under our well-established standard of review. Union County v. Hoffman, 512 N.W.2d 168, 170 (S.D.1994); Hilde v. Flood, 81 S.D. 25, 28-29, 130 N.W.2d 100, 101-02 (1964). See also SDCL 15-6-52(a) (“[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”).

[¶ 35.] Second, the dissents disregard our standard of review in their interpretation and application of the dispositive zoning ordinance. Plaintiffs amended complaint is specifically premised on 1970 City of Pierre Ordinance # 845. Plaintiff argues that the 1970 ordinance prohibited this building (including the additions) and its use by Tour Ice from the business’s inception in 1973 until revised ordinances were adopted in 1999. Plaintiff argues (and the dissents agree) that the building and the business use were unlawful nonconforming uses before the 1999 ordinance was adopted, and therefore, the building and its use could not have been lawfully “grandfathered” under the 1999 ordinance now in effect.

[¶ 36.] _ In analyzing this issue, the dissents attempt to interpret and apply the 1970 municipal zoning ordinance differently than the City and the trial court. The problem with their analysis is that there is no evidence of the language of that ordinance in the record. The ordinance is not in the record because Plaintiff failed to introduce it at trial despite the trial court’s explicit admonition to do so. Although we cannot read the 1970 ordinance on appellate review, the dissent divines its language from a question asked by Plaintiffs counsel concerning “restricted use[s].” See infra ¶ 63 n. 19. This does not, however, answer the question concerning conditional, permitted, and grandfathered uses under all of the ordinances. Moreover, the dissent ignores the zoning official’s answer indicating that the City believed “the use was previously permitted.” Infra ¶ 63 n. 19. The zoning official further expressly opined that this business was not prohibited in the central business district.

[¶ 37.] Considering this evidence and Plaintiffs failure to introduce the 1970 ordinance, our standard of appellate review requires us to defer to the interpretation of the City and the trial court. This Court has consistently held that: “Absent statutory authorization, courts of general jurisdiction, such as our circuit courts, may not take judicial notice of municipal ordinances .... An ordinance therefore must be introduced into evidence and be made part of the record. Nase v. Christensen, 409 N.W.2d 131, 132 (S.D.1987) (citations omitted). See also Coyote Flats, L.L.C. v. Sanborn County Com’n, 1999 SD 87, ¶ 9 n. 5, 596 N.W.2d 347, 350 n. 5. Because the dispositive 1970 ordinance was not introduced into evidence or made a part of the record, we are required to presume that the circuit court interpreted the ordinances correctly. This Court has been unequivocal in holding that “[t]he settled record is the sole evidence of the circuit court’s proceedings and, when confronted with an incomplete record, our presumption is that the circuit court acted properly.” State v. Jones, 416 N.W.2d 875, 878 (S.D.1987). Stated in other words, “[i]f we draw any presumption from an incomplete settled record, the presumption is that the trial court acted properly.” State v. Hall, 212 N.W.2d 308, 311 (S.D.1978).

[IT 38.] Appellate courts are also required to give this deference to the City’s interpretation. For over thirty years, the City has interpreted and applied the 1970 and 1999 ordinances to allow this building, its various additions, and its use.

“[C]ourts will consider and give weight to the construction of the ordinance by those administering the ordinance.” Wegner Auto Co., Inc. v. Ballard, 353 N.W.2d 57, 58 (S.D.1984). These rules of deference are dispositive in this case because we are being asked to interpret ordinances that we cannot read.

[¶ 39.] Considering Plaintiffs failure to prove the contents of any ordinance, we are required by our standard of review to presume that the City and the trial court interpreted and applied the ordinances correctly. Under those interpretations, this use was either a conforming or permitted use from 1973 until 1999, when it was “grandfathered” by the 1999 ordinance. I find it quite remarkable that the dissents would overrule these interpretations without being able to read the relevant ordinances.

SABERS, Justice

(dissenting).

[¶ 40.] I respectfully dissent because the majority opinion fails to consider the relevant facts of the nuisance action and avoids the plain meaning of the word “manufacture” resulting in numerous mistakes and a wrongly decided opinion.

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Collins v. Barker, 2003 SD 100, ¶ 17, 668 N.W.2d 548 (citing Restatement (Second) of ToRts § 822 (1979)). “The conduct making an actor liable may consist of (a) an act; or (b) failure to act under the circumstances in which the actor is under a duty to take positive action to prevent or abate ... the invasion of the private interest.” Id. (quoting Restatement (Second) of ToRts § 825 (1979)). “An actor’s invasion is considered intentional if the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct.” (emphasis added).

[¶ 41.] The circuit court found that the fans and compressors of Tour Ice create noise at random “24 hours per day 7 days per week.” Conveyor noise is made whenever the conveyor is running. Semi trucks are loaded with ice between the hours of 5:00 a.m. to 7:00 a.m. Monday through Friday, some Saturdays, and occasionally on Sundays and holidays.

[¶ 42.] Atkinson presented decibel readings taken at night with a digital hand held sound meter. The circuit court admitted the meter readings into evidence and incorporated them into its findings of fact. The court found that the noise in Atkinson’s apartment was generally in the 70-75 decibel range. At most, the court found that the noise in Atkinson’s apartment was comparable to that created by “a freight train.” On average, the court found that the noise level was that of a “vacuum cleaner.” Despite those findings, the circuit court denied relief finding that “the world is not silent.”

[¶ 43.] The Environmental Protection Agency, in a report on noise control, noted that “undue interference with activity and annoyance will not occur if ... indoor levels [of noise] ... are maintained at an energy level of 45 dB.” See Information on Levels of Environmental Noise Requisite to Protect Public Health and Welfare with an Adequate Margin of Safety, (EPA 1974) at http/Avww.nonoise.orgdibrary/lev-els74Zlevels74.htm.

[¶ 44.] The trial court failed to consider that noise levels double every ten decibels. Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520, 535 (8thCir.2003). Fifty-five decibels, therefore, is twice as loud as forty-five decibels. Consequently, the noise in Atkinson’s apartment at 70-75 decibels is about six to eight times the level that the EPA determines would be free from “annoyance” and “interference.” Clearly, it is a nuisance.

[¶ 45.] Other residents from Atkinson’s apartment complex also testified about the noise from Tour Ice.

[¶ 46.] Tom Cline, whose apartment faces Tour Ice, remarked:

But with the noise from that compressor, which is a — -which is not a noise you get used to because it’s a constant. It’s an off thing you can’t get used to. I can’t get used to it at least. The compressor runs for a period of time and then it turns off and you’re laying there trying to go to sleep and you say, “My God ain’t this nice,” you know. And you no more just about say “I’m ready to go to sleep,” and that thing kicks on again.

Cline compared the noise of the Tour Ice fans with that of a C-130 aircraft.

[¶ 47.] Mary Conode’s bedroom faces the compressor unit of Tour Ice. She testified that she was “awakened” at 4:15 a.m. every morning in the summer of 2003. Additionally, she testified that Tour Ice has not gotten any quieter in the three years she has lived in her apartment.

[¶ 48.] Stephen Ellwein, the majority owner of Tour Ice, admitted that his business is noisy. When asked whether he found anything objectionable about Atkinson’s position, Ellwein responded, “Well ... we do generate noise.” Ellwein testified that the semi trucks were the noisiest aspect of the business.

[¶ 49.] It is clear that the noise generated by Tour Ice is an unreasonable interference with Atkinson’s leasehold. People should not be expected to live or sleep through noise that is comparable to vacuum cleaners or freight trains. The circuit court erred as a matter of law when it held that the noise generated by Tour Ice does not constitute an unreasonable interference.

[¶ 50.] The circuit court relied on Patterson v. Robinson to support its holding. 620 So.2d 609 (Ala.1993). Specifically, the court cited Patterson for the proposition that “60 to 70 decibels are in the normal range for communities.” Thus, the circuit court found that Atkinson’s 70-75 reading was “in the top of the normal range but nowhere near a danger reading.”

[¶ 51.] A closer reading of Patterson demonstrates that the trial court’s reliance is flawed. First, the 60-70 normal range for communities is the standard when measured outdoors. Indeed, the Supreme Court of Alabama upheld the trial court’s order directing the defendants to keep noise at a 78 decibel standard outside the plaintiffs home and a 58 decibel standard indoors. Patterson, 620 So.2d at 612. Atkinson, on the other hand, had readings between 70-75 decibels inside her apartment. (emphasis added). As a result, the circuit court’s finding in this regard is clearly erroneous. -

[¶ 52.] Second, the “danger zone” referred to by the circuit court was the decibel level in which safety standards are triggered in an industrial setting. A requirement that noise approach “the industrial danger zone” before constituting an unreasonable interference has no place in the residential setting. To require the noise in one’s bedroom to reach a level where OSHA would be recommending ear plugs for an assembly line worker is error.

[¶ 53.] Third, the noise in Atkinson’s apartment is about six to eight times the permissible level that the EPA determines would be free from “annoyance” and “interference.”

[¶ 54.] In summary, Atkinson has met her burden of proof on the nuisance claim and is entitled to a remedy. The circuit court’s finding regarding 70-75 decibels to be in “the top of the normal range” is clearly erroneous because it misconstrued the decibel level and Patterson. The trial court’s requirement that noise reach the industrial danger zone should not apply to private residences in a nuisance action. As a result, the circuit court erred as a matter of law when it did not find the City’s determination of the existence of a nuisance to be “palpably unreasonable.”

Interpretation of Zoning Ordinances

[¶ 55.] “We interpret zoning laws according to the rules of statutory construction and any rules of construction included in the enactments themselves.” City of Marion v. Rapp, 2002 SD 146, ¶ 5, 655 N.W.2d 88, 90 (citing Cole v. Bd. of Adjustment of City of Huron, 2000 SD 119, ¶ 7, 616 N.W.2d 483, 485). “The interpretation of an ordinance presents a question of law reviewable de novo.” Id. “When interpreting an ordinance, we must assume that the legislative body meant what the ordinance says and give its words and phrases plain meaning and effect.” In re Frawley Planned Unit Development, 2002 SD 2, ¶ 6, 638 N.W.2d 552, 554 (emphasis added).

[¶ 56.] Manufacturing businesses are not permitted in Pierre’s central business district. Pierre City Ord. § 2-6-103 (1970). The 1970 ordinance, however, does not define the term “manufacture.” Tour Ice has not received a variance from the City of Pierre to manufacture ice in the district. Thus, if Tour Ice is a “manufacturing” business, it is operating unlawfully.

[¶ 57.] Because the term “manufacture” is undefined by the zoning ordinance, we must give it its plain and ordinary meaning. Frawley Planned Unit Development, 2002 SD 2, ¶ 6, 638 N.W.2d at 554. The AmeRican HERITAGE Dictionaby defines the term manufacture as “to make or process (a product), esp. with industrial machines.” 826-27 (3rd ed 1997). Neither the trial court nor the majority opinion claims that ice is not a “product.”

[¶ 58.] In regards to industrial operation, Tour Ice uses machines to freeze water and package it into both block and cube form. The process is performed with fans, conveyors, compressors, etc. Tour Ice produces, packages, and ships approximately 100,000 pounds of ice per day. Undoubtedly, Tour Ice is engaged in manufacturing ice in the plain and ordinary sense of the word “manufacture.”

[¶ 59.] Instead of adhering to our longstanding principles of statutory interpretation, the majority opinion meanders back through the decades to find two obscure tax cases that examine the word “manufacture” as used in tax codes. See Ballard v. Kentwood Ice Mfg. & Bottling Works, Ltd., 147 La. 583, 85 So. 598 (1920) (business that makes and sells ice is a manufacturer and therefore exempt from license tax.); Commonwealth v. American Ice Co., 406 Pa. 322, 178 A.2d 768 (1962) (foreign corporations engaged in making ice were not entitled to “manufacturer’s” franchise tax exemption.). The majority opinion concludes that since there is a “division among courts” the City’s interpretation is not unreasonable.

[¶ 60.] The majority opinion’s holding ignores the plain meaning of “manufacture” and is devoid of common sense. Ell-wein certainly believed Tour Ice was in the manufacturing business. At trial, Ellwein testified that “we [Tour Ice] manufacture ice. I mean, that’s a given.” When asked about the noise generated by Tour Ice, Ellwein remarked, “the manufacturing itself isn’t the noisy part, it’s the eooling[.]” In describing the entire process, Ellwein testified, “after we manufacture the ice the ice is held in freezers.” Therefore, Tour Ice is not only manufacturing unlawfully in the central business district, but is unlawfully warehousing as well.

[¶ 61.] Richard Melcher, the prior owner of Tour Ice, believed Tour Ice was in the manufacturing business as well. Mel-cher had to apply for a building permit before Tour Ice moved to its current location. In two places on the permit application Melcher conspicuously wrote that he was applying for a special permit for “ice manufacturing.” See copy of Plaintiffs Exhibit “1 attached hereto.

[¶ 62.] Courts have used the word “manufacture” to describe the process of making and selling ice. See Empire Storage & Ice Co. v. Giboney, 357 Mo. 671, 210 S.W.2d 55, 55 (1948) (plaintiff “also manufactures and sells ice[.]”); Jefferson Ice & Fuel Co. v. Grocers Ice & Cold Storage Co., 286 S.W.2d 80, 81 (1955) (“Both of these companies are in the business of manufacturing ice.”); Hebert v. Loveless, 474 S.W.2d 732, 733 (Tex.Civ.App. 1971) (“The ice was manufactured by the defendant ice company-”); Justice Sutherland, writing for the United States Supreme Court, remarked, “It has been said that the manufacture of ice requires an expansive plant beyond the means of the average citizen.... ” New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 76 L.Ed. 747 (1932). Justice Brandéis, writing in dissent, noted, “Nor can the Court properly take judicial notice that, in Oklahoma, the means of manufacturing ice for private use are within the reach of all persons who are dependent on it.” Id. at 289, 52 S.Ct. 371.

[¶ 63.] Certainly Ellwein, Melcher, and the authors of these writings are not all semantically challenged. Instead, they were using the word manufacture in its plain and ordinary meaning. Only the Pennsylvania Supreme Court and, now the majority opinion, claim that the making of ice commercially is not “manufacturing.” [¶ 64.] Because the city’s interpretation is at odds with the plain meaning of the term “manufacture,” the circuit court should be reversed on this issue. We should remand to the trial court to reach the correct decision and determine the proper remedy.

MEIERHENRY, Justice (dissenting).

[¶ 65.] I join Justice Sabers’ dissent and write specially.

[¶ 66.] Atkinson has sufficiently established a basis for both a nuisance action against Tour Ice and a mandamus action against the City. The City should not get a free pass because it ignored the manufacturing nature of this business and its own zoning ordinances both before and after 1999.

[¶ 67.] First, no matter how the City wants to redefine the business of Tour Ice, it is clearly engaged in manufacturing. Not only does the owner openly admit he is in the business of manufacturing and storing ice, but the evidence also supports that conclusion. Particularly telling is the owner’s testimony in which he says, “Just [] so everybody understands what we’re talking about, we manufacture ice. I mean, that’s a given.” Additionally, the application for a building permit clearly indicates that the “use of the building” was “ice manufacturing.”

[¶ 68.] Second, whether the business is manufacturing, warehousing, or assembly and packaging, it is a nonconforming or excluded use under the City’s zoning ordinances. In its brief, the City does not dispute that Tour Ice presents a nonconforming use. The trial court determined that the business activity fell within the zoning category of “assembly and packaging,” which is a nonconforming use. In spite of this characterization, the court determined that the “conditional use permit [was] not needed [because] the existing use by Tour Ice predate[d] the 1999 ordinance,” and that “[t]he City’s interpretation that making ice is not manufacturing will not be disturbed where the existing use by Tour Ice predates the 1999 ordinance.” The trial court reasoned that because the City has always failed to enforce the zoning ordinance, its present failure to enforce its ordinance is excused. Such reasoning is faulty. Grandfathering in a mistake should not justify enlarging the mistake at the expense of the citizens of the City. Additionally, this manner of applying prior existing use concepts is contrary to the City’s Zoning Ordinance Section 12-1-110 and our previous holdings.

[¶ 69.] Section 12-1-110 allows a prior lawful use to continue but disallows “extension of the building for a non-conforming use.” Additionally, we have consistently held that grandfathered nonconforming uses are not to be expanded. We said:

The policy towards nonconforming uses is to prevent their expansion beyond the bounds of the nonconforming use at the time of the effective date of the zoning ordinance. Even moderate expansion to meet new needs or to keep up with competition are (sic) generally not allowed. The policy aims toward eventual phaseout of nonconforming uses and seeks to do so as quickly as possible.

Brown County v. Meidinger, 271 N.W.2d 15,18-19 (S.D.1978) (citations omitted).

[¶ 70.] Manufacturing was not a conforming use in this zone under any of the zoning ordinances — before or after the 1999 ordinances. At no time did the City grant the business a variance or use permit. In fact, on two occasions after 1999, the City allowed expansion of the facility'— still not identifying the “use” of the business as a prohibited or non-conforming use. Regardless of whether this business is characterized as manufacturing, warehousing, or packing and assembling, it is not a conforming use. The City consequently has failed to enforce its own ordinances.

[¶ 71.] In its brief, the City admits that the remedy of a writ of mandamus is appropriate “when the duty to act is clear.” The City, relying on Hentz v. City of Spearfish, argues that a writ cannot issue to undo a completed act. 2002 SD 74, 648 N.W.2d 338. The completed act, the City argues, is the granting of the building permit to Tour Ice on two occasions for expansion. Its own witness, however, testified that a building permit is not a substitute for a “use” permit under the zoning statutes.

[¶ 72.] The City is responsible for enforcing its own zoning ordinances. By failing to apply the ordinances, it has failed to act. Failure to act when a clear duty exists is a basis for mandamus. In order to avoid the City’s duty, City officials overlooked the true nature of the business. The City official testified he had determined that the business was not a manufacturing business, that it was a permitted use in the central business district, and that it did not need a conditional use permit. When pressed, the City official said he did not know whether the expansion for which the building permits were issued presented warehouse-type scenarios. He said he called them “parking garages.” The trial court rejected the official’s characterization as a “parking garage” and determined, instead, the building’s use was assembly and packaging. Consequently, even under the court’s determination, it was a non-conforming use requiring a mandamus to issue.

[¶ 73.] The City’s omission in this case harmed both the business owner and the neighbors. The neighbors were subjected to unlawful manufacturing noise; the business was subjected to a nuisance lawsuit. The underlying theory of a zoning plan is to prevent these kinds of actions. I would reverse and remand for the trial court to issue the writ against the City and to craft an appropriate remedy for the nuisance action.

      . The city's ordinance provides:
      The following principal uses and structures are permitted in the Central Business District: (1) Financial institution[;] (2) Hotel/Motel[;] (3) Municipal or government buildings!;] (4) Office!;] (5) Parking facility or lot[;] (6) Personal and health service store!;] (7) Public transportation facility!;] (8) Public utility facility!;] (9) Railroad thru and spur tracks!;] (10) Retail or service store!;] and (11) Other light retail and service establishments approved by the Planning Commission, except those uses enumerated in another district.
      Pierre City Ord. § 12-6-103 (1999). "The following principal uses are hereby declared incompatible with the purpose of the central business district and are hereby expressly excluded. (1) Drive-in theaters!;] (2) Warehouses!;] (3) Petroleum bulk storage!;] (4) Mobile home parks!;] and (5) One and Two-family dwellings.” Pierre City Ord. § 12-6-104 (1999). The following uses are conditional uses and require a permit pursuant to the 1999 amendments to the ordinances: "(1) Assembly and packaging!;] (2) Automotive sales, service, & storage!;] (3) Daycare Facility!;] (4) Gas Dispensing Station!;] (5) Mixed business/residential use[;] (6) Multiple family dwellings!;] (7) Mini-storage facility (4,000 sq. ft. or less).” Pierre City Ord § 12-6-106 (1999).

      . To reach their conclusion that this noise constitutes a nuisance, the dissenters invoke certain EPA criteria they apparently downloaded from the Internet, from a website called "Noise Pollution Clearinghouse.” However, these materials state that they do "not constitute a standard, specification, or regulation.” And, in fairness, it must be pointed out that these materials were never presented to the trial court and thus were never considered by the court. To introduce this material now and use it as evidence to reverse the trial court is a violation of SDCL 15-26A-10 ("Supreme Court may review all matters appearing on the record (emphasis added).

      . As defined in Pierre City Ord. § 12-1-101(13), an "existing building” is "a building erected prior to the adoption of this chapter or one for which a legal building permit has been issued.” Because the company's building was constructed before the 1999 amendments, Tour Ice has been operating in the central business district as a valid existing building.

      . In its memorandum opinion, which was incorporated into its findings of fact and conclusions of law, the circuit court ruled that under Pierre City Ord. § 12-6-104, warehouses are specifically excluded from the central business district. Nonetheless, as the circuit court noted, "at least two warehouses exist in close proximity to Tour Ice” and Atkinson’s apartment building, both of which are within the same zoning district. Kusler's Beer Distributing and Monick Pipe and Supply are considered wholesale businesses, and both operate warehouses. However, we do not know from the record whether these establishments predated applicable zoning ordinances or received variances.

      . The 1999 amended version defines light manufacturing as "those manufacturing processes that are not obnoxious due to dust, odor, noise, vibration, pollution, smoke, heat or glare. These commercial or industrial uses are characterized by generally having all aspects of the process carried on within the building itself.” Pierre City Ord. § 12 — 1— 101(56) (1999).

      . Atkinson's brief argues that (1) the city's building inspector, Weaver, was operating under a conflict of interest, which enticed him to make an arbitrary and capricious decision; (2) the City of Pierre inappropriately delegated power to the building inspector; and (3) her due process rights were violated.

      . The dissents do not even acknowledge the witnesses who testified that the noise was not burdensome.

      . Plaintiff did not introduce any Pierre City ordinance into evidence. The City only introduced Exhibit C, which is a recent codification of selected ordinances. Although the recent codification’s source notes refer to a number of ordinances adopted in 1970, it is impossible to ascertain from Exhibit C which ordinances were in effect in 1970 and which were in effect in 1999. Moreover, there is no reference to 1970 Ordinance # 845.
      Plaintiff also failed to attach a copy of the crucial 1970 ordinance or the 1999 ordinances to her appellate brief. Nevertheless, Plaintiff makes numerous allegations concerning the content of these ordinances, including specific references to “the 1970 ordinance (Ordinance # 845).” Even though we have occasionally considered ordinances that were not introduced but were set forth in the brief, we cannot do so here because plaintiff did neither. See Coyote Flats, L.L.C. v. San-born County Com’n, 1999 SD 87, ¶ 9 n. 5, 596 N.W.2d 347, 350 n. 5.

      . Plaintiff's trial counsel, who withdrew for this appeal, was apparently unaware of the well-established rule of law requiring proof of municipal ordinances. When the trial court told Plaintiff's counsel that the ordinances must be offered into evidence, counsel responded by suggesting there was no need to introduce them because the ordinances were “plead (sic) and they are set out verbatim in my trial brief.” The trial court responded, "I understand, but you got to prove them too.” Notwithstanding this admonition, Plaintiff failed to prove the contents of the 1970 Ordinance, the 1999 ordinances, or any other City ordinance that supports her claim.

      . As we noted in Coyote Flats, L.L.C., 1999 SD 87, ¶9 n. 5, 596 N.W.2d at 350 n. 5, whether to "take judicial notice of a municipal ordinance is a procedural issue.... Therefore, if it is not objected to on the record, it can be waived upon appeal just as any other procedural issue.” Thus, absent an objection, we have reviewed an ordinance attached to a brief but not admitted into evidence. See id. Here, the 1970 ordinance was apparently attached to Plaintiff’s trial court brief. It also appears that Defendants did not object to the trial court’s consideration of that copy. Therefore, the trial court could, absent an objection, interpret and apply the ordinance that was attached to Plaintiff's brief. However, the trial briefs are not part of our record, and absent any evidence of the content of the ordinance, our standard of appellate review precludes our interpretation of the ordinance and requires that we defer to the City’s and the trial court's interpretation.

      .Although expansions of nonconforming uses are generally not permitted, see Brown County v. Meidinger, 271 N.W.2d 15, 18 (S.D. 1978), there is no dispute that the relevant building additions were completed before the 1999 ordinances became effective, and the City interpreted the additions to be permitted uses.

      . The evidence is sufficient to find a nuisance under either statutory nuisance as defined in SDCL 21-10-1 or common-law nuisance.

      . As the circuit court accurately pointed out, a decibel or "dBA” is a unit for measuring sound levels, approximately equal to the smallest difference in loudness detectable by the human ear. The range runs from one dBA, the faintest audible sound, to 130 dBA, the loudest audible sound. Souders v. Washington Metropolitan Area Transit, 48 F.3d 546, 548 n. 1 (D.C.Cir.1995).

      . The EPA explains that these numbers are not to be regarded as rigid standards, but a recommendation of what the agency believes "are requisite to protect the public from adverse health and welfare effects."

      . The majority opinion claims it is unfair to examine E.P.A. studies on noise levels because "... these materials were never presented to the trial court and thus were never considered ...” by it. The trial court's written decision, however, is laden with opinions and factual findings as to what constitutes appropriate decibel levels. The trial court went so far as to rely on expert testimony, reproduced in an Alabama appellate .case, as to what decibel range is normal for communities. As explained in ¶ 12 supra, the trial court misread the case upon which it relies.
      Because the trial court made extensive scientific findings as to appropriate sound levels, it is not "unfair" to examine whether those findings were consistent with the report of a federal agency on the same subject matter. In fact, the Eighth Circuit has referenced the same materials in determining whether an agency's methodology pertaining to noise calculations was arbitrary and capricious. Mid States, 345 F.3d at 537. Clearly it was fair game.

      .The C-130 Hercules is a massive transport plane utilized by the United States Air Force.

      . The concurring opinion claims I am conducting "an appellate retrial of the facts.” The concurrence fails to recognize that, for the most part, I am simply restating the trial court's findings of fact. As outlined in ¶¶ 2 and 3, supra, the trial court found the following facts: (1) on average, the noise in plaintiff's apartment is comparable to that of "a vacuum cleaner;” (2) noise levels in plaintiff's apartment occasionally reach the same noise level as that of a "freight train,” and (3) the noise is generated at random, "24 hours per day 7 days per week.” I am not retrying the facts, I am-relying on them. The facts show that the trial court's legal determination was in error. No resident of any South Dakota city should have to tolerate the level of noise found by the trial court.

      . The record reflects that Atkinson met her burden on the intentional element. Ellwein was put on notice on numerous occasions that his company's actions were causing excess noise in Atkinson's apartment.

      . The concurring opinion avoids giving the term "manufacture” its plain and ordinary meaning. Instead, the concurrence would defer to the City’s interpretation because Atkinson failed to introduce the 1970 ordinances into evidence and, according to the concurrence, "there is no evidence of that ordinance in the record.” Concurrence ¶ 36. The concurrence claims that the rules of deference are therefore dispositive.
      I do not agree that there is no evidence of the 1970 ordinance in the record. Norm Weaver, the city official charged with enforcing and interpreting zoning ordinances, engaged in the following exchange with plaintiff's counsel concerning the 1970 ordinances:

        Plaintiff’s Counsel: You’ve heard the discussion here regarding what was allowed or what was restricted prior to the '99 changes as to manufacturing being a restricted use. Do you regard the activities carried on by Tour Ice as being manufacturing as interpreted under the zoning ordinances?

        Weaver: To us — and we — when Mr. Mel-cher moved ... we did not consider making ice manufacturing and, you know, the use was previously permitted and so we based all of our understanding, I guess, from — from that point on, and I guess we have not changed our mind.
      Thus, Mr. Weaver does not dispute that the 1970 ordinances prohibited manufacturing in the central business district. Neither do any of the parties. Nor did the trial court. Nor does the majority opinion. Why in the world would the majority opinion strain to conclude making ice was not manufacturing if manufacturing was not prohibited by the ordinance? It is not necessary to reproduce the ordinance when no one disputes what it says.
      Even if the City is afforded the highest degree of deference, its interpretation ■ still fails to make basic sense. The freezing of water, cutting, packing, storing, and shipping of 100,000 pounds of ice per day constitutes manufacturing in the plain and ordinary sense of the word.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2005 SD 115
    In the Matter of the ADOPTION OF C.D.B., A Minor. B.M. (H.) T., Mother and Appellant, J.D.B., Father and Appellee. B.M. (H.) T., Plaintiff and Appellant, v. J.D.B., Defendant and Appellee.
    Nos. 23573, 23590.
    Supreme Court of South Dakota.
    Argued Oct. 4, 2005.
    Decided Nov. 22, 2005.

      Donald M. McCarty of McCann, Rib-stein, Hogan & McCarty, Brookings, South Dakota, Attorneys for appellant Mother B.M. (H.) T.
    Sean M. O’Brien, Brookings, South Dakota, Attorney for appellee Father J.D.B.
   KONENKAMP, Justice.

[¶ 1.] In this consolidated appeal, the mother seeks reversal of (1) the decision to terminate her parental rights so that the father’s wife, the stepmother, can adopt C.D.B., and (2) the decision to hold the mother in contempt for not paying her child support obligation. We affirm both decisions.

Background

[¶ 2.] The mother and father never married each other, but lived together and shared responsibility for their son, C.D.B., who was born in 1998. The parents eventually separated in 2000, and the mother kept physical custody of the child. The father retained the right to regular visitation under a stipulated schedule. Then in November 2002, the father petitioned the circuit court for, and was granted, physical custody because the mother was going through a difficult time in her life and had frequently left C.D.B. with the father for extended periods of time. The court ordered supervised visitation for the mother at the father’s home. The visitation had to be supervised because there was a concern that the mother would leave with C.D.B. and because she had married a registered sex offender. In addition to supervised visitation, the circuit court ordered the mother to pay the father child support of $130 per month to begin on January 1, 2003.

[¶ 3.] Despite having a visitation schedule established at the November 2002 hearing, the mother only visited C.D.B. four times. She never paid any child support. Her last contact with C.D.B. was in January 2003. In her explanation for her lack of contact with C.D.B., the mother claimed that the stepmother made her visitations difficult and that supervised visitation in the father’s home did not allow her to have one-on-one time with C.D.B.

[¶4.] The mother acknowledged that “she has made some poor decisions relating to visitation.” However, she insisted that she had matured and called the father in early October 2004 to ask him what she needed to do to start seeing her son again. Within days of the mother’s telephone call, the father married the stepmother and filed a petition for adoption. While it was true that they married on October 13, 2004, and filed the petition for adoption on that same day, the father explained that the purpose was not to prevent the mother from reestablishing her relationship with C.D.B. Instead, the father and stepmother said that they wanted to provide the child with a stable and loving home.

[¶ 5.] After learning that the stepmother had petitioned for adoption, which, if granted, would terminate the mother’s parental rights, the mother wrote a letter to the circuit, court. An evidentiary hearing was held to determine whether the mother had in fact abandoned C.D.B. and whether the best interest of the child would be served if the mother’s parental rights were terminated and the stepmother’s adoption proceeded.

[¶ 6.] At the hearing, before Judge David R. Gienapp, the court took judicial notice of the parents’ custody file and heard testimony from the father, the mother, the stepmother, and several other witnesses. The mother insisted that she did not have the requisite intent to abandon C.D.B. and that terminating her parental rights would not be in her child’s best interests. Moreover, the mother said that because she called the father in early October 2004, this fact supported a finding she had not abandoned C.D.B. for the six months “immediately prior to the filing of the Petition” as required by SDCL 25-6-4(2). She admitted, however, that for the six months prior to the filing of the petition she had not communicated with her son, who was age six at the time. In fact, she said that she had seen him “in some stores, but I have never gotten in front of him to say something to him.” Nonetheless, the mother claimed that the adoption should be denied because the father and the stepmother have had an unstable relationship, a belief the father’s own family supported.

[¶ 7.] After the circuit court considered all the evidence, it found that the mother lived a nomadic lifestyle, only sporadically visited C.D.B., never paid child support, did not ask to speak with C.D.B. when she called in early October 2004, and made no “recognition of Christmas or birthdays of the minor child dating back to at least 2002 and possibly further.” The court emphasized that the mother’s “testimony at trial as to the reasons for her non-contact [were] not deemed credible or realistic.” On the other hand, the court regarded the testimony of the stepmother as “credible and believable.” Consequently, the court held that the father had “established by clear and convincing evidence that [the] mother has abandoned the minor child.” Specifically, the court ruled that “the evidence shows that [the] father took custody of the minor child and [the stepmother] has been involved in the parental duties relating to the minor child, and has basically taken the place of his missing mother ... and that the reasons given by the natural mother as to why she failed to follow through with visitation are not credible.”

[¶ 8.] The father also filed a motion for contempt against the mother for her failure to pay child support. In that proceeding, before Judge Rodney J. Steele, the mother alleged that she had not “willfully and contumaciously” failed to pay because she did not know she was supposed to start making payments, since she never personally received the order. In addition, the mother claimed that because the father never attempted to enforce the child support order against her, she should not be held in contempt. The circuit court found that (1) an order existed, (2) the mother had actual notice of her obligation in November 2002 because she was present when the court issued the order, (3) she had the ability to pay, and (4) her failure to make any payment whatsoever was willful and contumacious.

[¶ 9.] The mother appeals raising the following issues: (1) did the trial court err when it found that the mother had abandoned C.D.B.; (2) did the trial court abuse its discretion when it determined that it was in the best interest of C.D.B. to proceed with the adoption; and (3) did the trial court err when it held the mother in contempt for not paying child support?

Analysis and Decision

[¶ 10.] “Whether a parent has abandoned a child within the meaning of SDCL 25-6-4 is a question of fact to be decided by the trial court, a decision that will not be overturned unless the finding is clearly erroneous.” In the Matter of Adoption of Bellows, 366 N.W.2d 848, 850 (S.D.1985); In the Matter of Adoption of Everett, 286 N.W.2d 810, 814 (S.D.1979); In the Matter of Adoption of Christofferson, 89 S.D. 287, 290, 232 N.W.2d 832, 834 (1975). Findings of fact are clearly erroneous when, after a careful review of the record, “we are left with a firm conviction that a mistake has been made.” In the Matter of Adoption of Baade, 462 N.W.2d 485, 488 (S.D.1990).

[¶ 11.] After a court finds abandonment under SDCL 25-6-4(2), it must exercise its discretion to determine whether the child’s best interests will be served by terminating the rights of the parent so that an adoption can proceed without that parent’s consent. “When reviewing whether a court has abused its discretion, we do not decide whether we would have made the same ruling, but only if a judicial mind could have made a similar decision in view of the law and the circumstances.” Meldrum, v. Novotny, 1999 SD 127, ¶ 11, 599 N.W.2d 651, 653 (citing Johnson v. Johnson, 468 N.W.2d 648, 650 (S.D.1991)). An abuse of discretion occurs when a court has made “a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.” Arneson v. Arneson, 2003 SD 125, ¶ 14, 670 N.W.2d 904, 910.

1. Abandonment

[¶ 12.] The mother maintains that her call to the father in early October 2004 clearly supports her intent to reestablish, not abandon, her relationship with C.D.B. However, the father contends that even if the mother’s call is construed as an attempt, it should not negate the finding of abandonment under SDCL 25-641(2). We have previously determined that “[t]o constitute abandonment under our code it must appear by clear and convincing evidence that there has been by the parents a giving-up or total desertion of the minor child.” Mastrovich v. Mavric, 66 S.D. 577 287 N.W. 97, 97 (1939); see also, Adoption of Bellows, 366 N.W.2d at 850; In the Matter of Adoption of Ernst, 318 N.W.2d 353, 354 (S.D.1982); Adoption of Everett, 286 N.W.2d at 814; Adoption of Christofferson, 89 S.D. at 290, 232 N.W.2d at 834. In addition, “[t]here must be a showing of an intent on the part of the parent to abandon and to relinquish parental obligations; this intent may be inferred from conduct.” In the Matter of Adoption of Sichmeller, 378 N.W.2d 872, 873 (S.D.1985) (citing Adoption of Christofferson, 89 S.D. at 290, 232 N.W.2d at 834). When examining intent, the court should consider “a parent’s presence, love, care and affection, and monetary support.” Id. (citation omitted).

[¶ 13.] It is undisputed that the mother has not contacted C.D.B. during the last six months before the filing of the petition for adoption and that the last actual contact was in January 2003. Even when she saw him in stores, she made no effort to talk to him. It is also undisputed that when the mother called in October 2004 she did not ask to speak to C.D.B. However, she asserts that her mere failure to request to speak to C.D.B., who was sleeping, is not enough to establish by clear and convincing evidence that she abandoned her son. Moreover, the mother claims that her rights should not be terminated because the father and the stepmother are trying to prevent her from maintaining a relationship as evidenced by their marriage and petition for adoption filed shortly after the mother called.

[¶ 14.] The court was entitled to infer the mother’s intent from the totality of her conduct. First, the court found that the mother “made absolutely no attempts to pay any support toward the minor child since the father took over custody.” Second, the court found that she “has not made any recognition of Christmas or birthdays of the minor child dating back to at least 2002 and possibly further.” Third, the court believed “that the' mother may not even have been interested in the contest that has evolved, but for the urging of the maternal grandparents.”

[¶ 15.] To conclude that evidence is clear and convincing, “the witnesses must be found to be credible, ... the facts to which they have testified [must be] distinctly remembered and the details thereof narrated exactly and in due order, and ... their testimony [must be] so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Adoption of Bellows, 366 N.W.2d at 851 (quoting Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 780 (1965)). Here, the circuit court found that the mother’s “testimony at trial as to the reasons for her non-contact with the minor child were not deemed credible or realistic.” But, the testimony of the stepmother was “credible and believable.” As a result, the circuit court concluded that the father and stepmother “established by clear and convincing evidence” that the mother had abandoned C.D.B. for six months or more immediately prior to the filing of the petition.

[¶ 16.] Despite these findings, the mother insists that the circuit court “erred in finding by clear and convincing evidence that abandonment occurred” because it “conducted an incomplete and inaccurate analysis of the facts at hand.” On the contrary, the evidence supports the court’s conclusions. This evidence need not be disregarded because of the mother’s eleventh-hour phone call after having made no contact with her child for much longer than six months. We understand that the seriousness and finality of this decision implicates the mother’s fundamental interests as a parent. Adoption of Bellows, 366 N.W.2d at 851 (citations omitted). However, the mother’s “right is neither absolute nor unconditional.” Id. Decisions to terminate parental rights and allow an adoption are not made to punish wayward parents, but to protect children. Here, “we are in no position to reweigh the evidence [and] ... must defer to the judge’s firsthand perception of the witnesses and the significance the judge gave to their testimony.” Zepeda v. Zepeda, 2001 SD 101, ¶ 19, 632 N.W.2d 48, 55 (citations omitted).

2. Best Interests of the Child

[¶ 17.] Before a court can grant a petition for adoption waiving the requirement for parental consent under SDCL 25-6-4, it must first consider the best interests of the child. There are no formulas to guide such decisions. SDCL 25-6-2 simply requires a court to give “paramount consideration to the best interests of the child” in adoption and termination of parental rights proceedings.

[¶ 18.] The mother suggests that our “best interest factors” from custody cases should be used. See Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 24, 591 N.W.2d 798, 807. Specifically, the mother claims that “[flailing to conduct such an analysis will infringe on the parent’s fundamental interest in the care, custody, and control of her child.” SDCL 25-6-2 validates some of the mother’s concerns. It provides that “the court shall give due consideration to the interests of the parties to the proceedings.... ”

[¶ 19.] In this case, after the court considered all the evidence, it found “that it is in the best interests of the minor child that the step-parent adoption go forward.” Although the mother maintains that the “court’s analysis focused almost exclusively on abandonment as if to infer that if the mother abandoned [C.D.B.], the termination of the mother’s parental rights and the adoption itself would automatically be in [C.D.B.’s] best interests,” the record and findings reflect differently. The court specifically found that “ever since the father took custody of [C.D.B.], the [stepmother] has been involved in the parental duties relating to the minor child, and has basically taken the place of his missing mother.” The court considered the stepmother to be credible and believable. Moreover, the court recognized that she has been “a good caregiver” for C.D.B.

[¶ 20.] Still, the mother insists that the court abused its discretion because there is “considerable evidence on the record to show that adoption is not in [C.D.B.’s] best interest because the father and stepmother’s relationship is not stable.” We do not reweigh the evidence and testimony. Trial courts have broad discretion in deciding these questions. During the court’s exercise of discretion, it stated several times that the mother’s claims are not credible or realistic. Furthermore, the court considered the responses to the mother’s allegations given by the father and the stepmother and was obviously satisfied with their explanations. The record adequately supports the court’s findings and we see no abuse of discretion in its conclusion about the best interests of C.D.B. under SDCL 25-6-2 and 25-6-4.

3. Contempt

[¶ 21.] When we review a court’s decision to hold a parent in contempt for failure to pay child support, we will not set it aside unless it is clearly erroneous. Taecker v. Taecker, 527 N.W.2d 295, 298 (S.D.1995) (citing Dougherty v. Dougherty, 482 N.W.2d 320 (S.D. 1992)). “Four elements must be met to support a contempt finding: (1) existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience.” Id. (citing Fuller v. Fuller, 312 N.W.2d 729, 730 (S.D.1981)).

[¶ 22.] In November 2002, the mother was ordered to pay the father child support of $130 per month to begin in January 2003. The mother never paid on her obligation even though she was present at the hearing establishing the order. While it is true that the father never attempted to enforce the order through the Child Support Enforcement Office, this does not reduce the mother’s conduct to something less than willful and contumacious. In fact, the mother called the Enforcement Office and thereafter obtained a copy of the order in July 2003. But she still failed to make any support payments. The court specifically concluded that the mother had actual notice of the order, “both by her presence at the hearing on November 7, 2002, and because of the fact that she picked up a copy of the order in 2003.” In addition, the court found that “she had the ability to pay child support and that she had failed and refused to pay child support.” As a result, the mother’s failure to pay was deemed willful and contumacious. We conclude that the decision was not clearly erroneous.

[¶ 23.] Lastly, the father moved for appellate attorney’s fees under SDCL 15-17-38 and 15-26A-87.3. Based on the entire record, we conclude that the award should be denied.

[¶ 24.] Affirmed.

. [¶25.] GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.

      . When the mother's husband, T.T., was nineteen he impregnated a fifteen-year old girl who thereafter sought aid from the State. He was charged and convicted of statutory rape.

      . Her parents also wrote a letter because they did not want their relationship with their grandson to change. From the time C.D.B. was born, the mother’s parents have had consistent contact and visitation with C.D.B. and feared that this relationship would cease if the stepmother was allowed to proceed with the adoption.

      . According to SDCL 25-6-4, no child may be adopted without the parents' consent unless one of the statutory exceptions is met. In addition, when an exception is met, the trial court must consider the best interests of the child before waiving the requirement for parental consent.

      . At the hearing, the father's sister and the paternal grandmother testified that they did not believe the relationship between the father and the stepmother, who had been living together for four years, was strong because the engagement was called off, then put back on, and finally the date was moved up for purposes of this adoption. The paternal grandmother wanted the father to wait to proceed with the adoption until the couple had been married for some time to be sure the marriage would work. The father’s sister expressed the same concerns.


author: TERNUS, Justice.

text:
    Robert A. BREDE and Linda L. Brede, Appellants, v. Gary G. KOOP and Annabelle J. Koop, Appellees.
    No. 04-0740.
    Supreme Court of Iowa.
    Dec. 16, 2005.

      Dale E. Goeke of Hagemann & Goeke, Waverly, for appellants.
    Christopher C. Foy of Leslie, Collins & Foy, Waverly, for appellees.
   TERNUS, Justice.

The appellants, Linda and Robert Bre-de, filed this action for trespass, injunctive relief, and a declaratory judgment against their neighbors, appellees Gary and Annabelle Koop. The Bredes claimed the Koops had no right to use a gravel driveway crossing the Bredes’ property and leading to the Koops’ residence. The Koops filed a counterclaim seeking a declaratory judgment that they had a prescriptive easement in the road. After a bench trial, the district court ruled the facts supported the establishment of a prescriptive easement and an easement by implication. Based on this conclusion, the court dismissed the Bredes’ claims.

The Bredes’ appeal was transferred to the court of appeals. That court reversed the district court’s decision that the Koops had a prescriptive easement and an easement by implication. The court of appeals also concluded the Koops were not entitled to use the gravel driveway under general equitable considerations. Finally, the court affirmed the trial court’s dismissal of the Bredes’ trespass action.

We granted further review. Upon our consideration of the issues, we vacate the decision of the court of appeals, reverse the decision of the district court, and remand this case for further proceedings consistent with this opinion.

II. Scope of Review.

This case was tried in equity. Therefore, our review is de novo. See Johnson v. Raster, 637 N.W.2d 174, 177 (Iowa 2001). In a de novo review, the appellate court examines the facts as well as the law and decides the issues anew.

Id. The district court’s factual findings are accorded weight, but are not binding.

Id. at 177-78.

III. Facts and Prior Proceedings.

The Bredes and Koops are neighbors. The Koops’ property is directly south of the Bredes’ land. Both parcels, as well as adjoining land, were originally owed by one Charles Osweiler. In 1971, Osweiler divided his property into lots. Access to the interior lots, which included the property at issue here, was provided by a perpetual easement over a thirty-three foot wide strip of land known as lot 9 or the subdivision road.

Osweiler sold two of the interior lots to his son-in-law John Fink in 1971, retaining lot 7 directly to the south of the property sold to Fink. The subdivision road abutted the east property line of Fink’s land and ended at the northeastern corner of lot 7. Osweiler intended to build a home on lot 7 and, in fact, put in a foundation for that purpose. Around the same time, Osweiler, with his son-in-law’s assistance, made substantial improvements to an old dirt path that started where the subdivision road ended at the northeast corner of lot 7, angled across lot 7, and terminated at the house site. Osweiler raised the level of the dirt path to provide for drainage and covered it with gravel to create a usable driveway.

Lot 7 and the subdivision road were eventually sold to a couple who erected a house on the foundation previously built by Osweiler. This property, including the subdivision road, was subsequently purchased by Danny and Brenda Christie in 1977. In 1979, Fink purchased the northeastern section of lot 7 from the Christies in order to make his property square and large enough for a house. This sale cut off the Christies’ access to the subdivision road. So, in the deed to Fink, the Christ-ies retained a thirty-three foot easement along the eastern edge of the conveyed land for access purposes. This easement linked the Christies’ property to the subdivision road, but was generally in a different location than the driveway that angled across the property sold to Fink.

Notwithstanding the express easement reserved in Fink’s deed, the Christies and their successors in interest continued to use the gravel driveway as the primary means of access to the house on lot 7. Fink knew part of the driveway was outside the express easement, but since he had not yet built a home on his property, he was not concerned that others used the driveway across his land.

In 1991 the Koops bought the property owned by the Christies, and in 1994 Fink sold his land to the Bredes. The Bredes assumed the gravel driveway across the corner of their property was an extension of the subdivision road. They had observed Mr. Koop drive heavy equipment that was too wide for the driveway along the eastern edge of the Bredes’ land, but the Bredes were unaware of the Koops’ thirty-three foot easement. The Bredes first learned of the express easement in 1998 when Mr. Koop stopped them from planting a tree in that area, informing them they would be obstructing the Koops’ easement. Eventually, the Bredes confirmed the existence of the thirty-three foot easement, and in August 2001, wrote to the Koops demanding that the Koops cease their use of the gravel driveway and instead use the express easement. The Koops responded that they had a prescriptive easement over the driveway.

After a period of unsuccessful negotiations, the Bredes filed this lawsuit in May 2003. They sought damages for trespass and an injunction prohibiting the Koops’ use of the gravel driveway. The Bredes subsequently added a claim for a declaratory judgment that would limit the Koops’ interest in the Bredes’ property to the thirty-three foot express easement. The Koops counterclaimed, seeking a declaratory judgment confirming the validity of a permanent easement along and over the driveway. The parties agreed that the claims for declaratory relief would be tried first to the court, and the trespass claim would be submitted to a jury later, if it remained viable.

As indicated earlier, the trial court ruled the Koops established a prescriptive easement as well as an easement by implication in the gravel driveway. Accordingly, the court entered a declaratory judgment that the Koops had a permanent perpetual easement in the driveway running across the southeastern corner of the Bredes’ property. The court denied the Bredes’ request for declaratory relief, and dismissed their petition.

On appeal, the court of appeals concluded the Koops had not shown a claim of right to the property so as to prove a prescriptive easement. In addition, the court concluded the evidence was insufficient to establish an easement by implication because the Koops’ use of the gravel road was merely convenient, and not essential, in view of the express easement that allowed them access to their land. The court of appeals also discussed the equitable interests of the parties and decided the most equitable result was for the Koops to have one easement in the location of the thirty-three foot express easement. Finally, without discussion, the court stated that the Bredes’ trespass action should not be reinstated.

This court granted further review. We will discuss the Koops’ claims of prescriptive easement and easement by implication. We do not consider the general equities of the situation as an independent basis to grant relief. See Simonsen v. Todd, 261 Iowa 485, 495, 154 N.W.2d 730, 736 (1967) (“ ‘There are usually no equities in favor of one who claims property of another by adverse possession and his acts are to be strictly construed.’ ” (Citation omitted.)).

IV. Prescriptive Easement

A. General principles of law. An easement by prescription “is similar to the concept of adverse possession.” Johnson, 637 N.W.2d at 178; accord Simonsen, 261 Iowa at 495, 154 N.W.2d at 736. It “is created when a person uses another’s land under a claim of right or color of title, openly, notoriously, continuously, and hostilely for ten years or more.” Johnson, 637 N.W.2d at 178. The facts relied upon to establish a prescriptive easement “must be strictly proved. They cannot be presumed.” Simonsen, 261 Iowa at 495, 154 N.W.2d at 736.

The requirements of hostility and claim of right are closely related. Hostility refers to declarations or acts that show the declarant or actor claims a right to use the land. Johnson, 637 N.W.2d at 178. “Similarly, a claim of right requires evidence showing an easement is claimed as a right.” Collins Trust v. Allamakee County Bd. of Supervisors, 599 N.W.2d 460, 464 (Iowa 1999). It must also be established that the servient owner had express notice of the claim of right, not just the use of the land. Phillips v. Griffin, 250 Iowa 1350, 1355, 98 N.W.2d 822, 825 (1959). This notice may be actual or established by “known facts of such [a] nature as to impose a duty to make inquiry which would reveal [the] existence of an easement.” Anderson v. Yearous, 249 N.W.2d 855, 861 (Iowa 1977).

A claim of right must be shown by evidence independent of the use of the easement. Collins Trust, 599 N.W.2d at 464; Simonsen, 261 Iowa at 496, 154 N.W.2d at 736. That is because permissive use of land is not considered to be hostile or under a claim of right. See Collins Trust, 599 N.W.2d at 464 n. 1. Moreover, “[continued use does not, by mere lapse of time, become hostile or adverse.” Mensch v. Netty, 408 N.W.2d 383, 387 (Iowa 1987).

This court has relaxed the traditional requirements for a prescriptive easement “in those situations in which the party claiming the easement has expended substantial amounts of labor or money in reliance upon the servient owner’s consent or his oral agreement to the use.” Simon-sen, 261 Iowa at 489, 154 N.W.2d at 733. Prescriptive easements based on this relaxed standard “are determined either on the theory of a valid executed oral agreement or on the principle of estoppel.” Id. Under this exception to the strict rules governing prescriptive easements, an easement by prescription may arise

in those instances in which the original entry upon the lands of another is under an oral agreement or express consent of the servient owner and the party claiming the easement expends substantial money or labor to promote the claimed use in reliance upon the consent or as consideration for the agreement.

Id. at 495, 154 N.W.2d at 736; accord Collins Trust, 599 N.W.2d at 464 n. 1; Mensch, 408 N.W.2d at 387.

B. Application of law to this case. Because we think the proof in this case fails to establish the Koops used the gravel driveway for the requisite period of time under a claim of right of which the ser-vient owners had notice, our discussion is focused primarily on those requirements. The Koops contend they used the driveway under a claim of right because they believed from the time they purchased the property that the driveway “was theirs and that they had a right to use [it] for access purposes.” They also rely on the fact that the Christies used the driveway without ever asking for or receiving permission from Fink to do so. We do not think these facts are sufficient to establish an easement by prescription.

Although the Koops assert they always thought they had a right to use the driveway, as opposed to mere permission to use it, there is no evidence this claim of right was ever made known to Fink or the Bredes prior to 2001. It is undisputed that neither the Koops nor their predecessors in interest ever spoke with Fink about the gravel driveway. It was not until 2001 that the Koops contacted the Bredes and asserted a right to use the driveway. Although this express notice of the Koops’ claim of right was sufficient to start the running of the prescriptive ten-year period, it cannot support a prescriptive easement here because the notice came too late: the present lawsuit was filed in 2003, less than ten years after the Bredes received actual notice of the Koops’ claim. Even if we assume the Koops’ use and maintenance of the driveway was sufficient to give the Bredes inquiry notice, the Bre-des did not purchase this property until 1994. So again, the ten-year requirement was not met before suit was filed in 2003. We turn then to the other evidence upon which the Koops rely to establish their claim of right: their use, maintenance, and improvement of the driveway.

The evidence clearly establishes that the Christies’ initial use of the driveway after selling a portion of their property to Fink was permissive. As noted earlier, the evidence shows Fink knew the driveway was generally outside the thirty-three foot express easement, but it was fine with him that the Christies and subsequent owners used the driveway. Over the years, there- was no change in the nature of the use of the easement so as to indicate that its use had changed from permissive to adverse. See Casady v. Ca-sady, 184 Iowa 1241, 1249, 169 N.W. 683, 686 (1918) (“In the absence of proof to the contrary, the right under which the possession and use were originally taken will be presumed to have continued.”). Consequently, we think the facts show the use of the driveway during Fink’s ownership of the servient estate was permissive only. The Christies’ and Koops’ permissive use of the gravel road does not establish a claim of right.

The Koops also rely on their efforts and those of their predecessors to maintain and improve the gravel driveway as evidence of a claim of right. These efforts consisted of adding gravel or road rock to the surface and of grading the surface as necessary. (The labor and expense of the initial construction of the gravel driveway is irrelevant because that occurred when the property was under common ownership.) We do not think these acts are independent of the use of the road by the Koops and their predecessors in interest. The occasional placement of gravel and grading simply ensured that the driveway would be passable and hence, usable. See Hicks v. Franklin County Auditor, 514 N.W.2d 431, 441 (Iowa 1994) (concluding claimants’ act of filling in a ditch on the disputed land so they could farm it was not independent of their use of the land so as to support a prescriptive easement). Because the Christies’ and Koops’ maintenance of the driveway was consistent with their permissive use, their acts were not sufficient to put Fink on notice that they claimed an easement in the driveway.

This determination is not inconsistent with our decision in Collins Trust, a case upon which the Koops rely. In Collins Trust, a county claimed a prescriptive easement in a road. 599 N.W.2d at 463. The evidence showed the county had “removed downed trees, placed gravel in wet spots, and installed culverts to improve drainage in the area” of the disputed road. Id. at 462. We concluded the expenditure of public funds in this manner was “of such a nature to support the public’s claim of ownership.” Id. at 465. This conclusion rested in part on the unique facts of that case, namely, that a public body would not devote public money to a private road. See id.; accord Barnes v. Robertson, 156 Iowa 730, 733-34, 137 N.W. 1018, 1019 (1912) (holding county had acquired road by prescription because “in using the way actually traveled, and in working and improving the same, the authorities and the public were undoubtedly acting under a claim of a right to such use”). That distinctive circumstance supported a finding of a claim of right and notice; that circumstance is not present here.

We also think the facts do not establish an easement by prescription under the relaxed requirements recognized in Simonsen. Even if we assume the Koops expended substantial amounts of labor or money to maintain and improve the road, those expenditures were not “in reliance upon the servient owner’s consent or his oral agreement to the use.” Si-monsen, 261 Iowa at 489, 154 N.W.2d at 733. That is because there was no proof that the Christies’ original entry onto the land in 1979 was “under an oral agreement or express consent of the servient owner” — Fink. Id. at 495, 154 N.W.2d at 736. Thus, there was no showing that the Christies’ or Koops’ maintenance of the easement was consideration for an oral agreement with Fink or was detrimental conduct in reliance upon Fink’s express consent. Consequently, their labor and expenses are not sufficient to create an easement by prescription.

We hold the Koops have failed to establish a prescriptive easement under either the traditional or relaxed requirements recognized in Iowa. We turn, then, to a consideration of the doctrine of easement by implication.

Y. Easement by Implication.

“An easement by implication is one which the law imposes by inferring the parties to a transaction intended that result, although they did not express it.” Schwob v. Green, 215 N.W.2d 240, 242-43 (Iowa 1974). An easement by implication arises under the following conditions:

(1) a separation of the title; (2) a showing that, before the separation took place, the use giving rise to the easement was so long continued and obvious that it was manifest it was intended to be permanent; and (3) it must appear that the easement is continuous rather than temporary, and (4) that it is essential to the beneficial enjoyment of the land granted or retained.

Bray v. Hardy, 248 Iowa 794, 797, 82 N.W.2d 671, 673 (1957). An easement is “essential” when it is reasonably necessary, as distinguished from being merely convenient. Id. at 799, 82 N.W.2d at 674. “The intent to grant or reserve an easement by implication must be determined as of the time of the severance of the unity of ownership.” Id. at 801, 82 N.W.2d at 675.

The separation of title here occurred in 1979 when Fink purchased a portion of the property owned by the Christies. The issue, then, is whether the circumstances of the transaction evidence an intent by these parties to reserve an easement in the land the Christies conveyed to Fink. See id. at 799, 82 N.W.2d at 674 (“Whether an easement by implied reservation is created is primarily a question of the intent of the parties ... to be inferred by the circumstances of the transaction.”). Considering the circumstances at the time of this conveyance, we cannot infer that the parties to the transaction intended to create an easement in the gravel driveway. The Christies and Fink were aware that the Christies’ property would become landlocked upon Fink’s purchase of that portion of the Christies’ land adjoining the subdivision road. Rather than provide for an easement in the location of the gravel driveway, the parties expressly contracted for a thirty-three foot easement along the eastern edge of the parcel purchased by Fink. See id. (stating “the terms of the conveyance” are an important consideration “governing the determination of whether an easement by implied reservation has been created”). Consequently, an easement over the gravel road, while clearly convenient, was not a reasonable necessity. Cf. id. at 800, 82 N.W.2d at 675 (finding easement over sidewalk on servient land'was reasonably necessary because it was the only way of reaching the plaintiffs front door). Therefore, the Koops have not proven an easement by implied reservation.

VI. Summary and Disposition.

The district court erred in concluding the Koops had established a prescriptive easement and an easement by implication in the gravel driveway. Consequently, the district court erred in dismissing the Bre-des’ request for a declaratory judgment that the Koops’ only interest in the Bre-des’ property is the thirty-three foot express easement established in 1979. Therefore, we remand this case for dismissal of the Koops’ counterclaim and for entry of a declaratory judgment in favor of the Bredes.

The court of appeals erred in effectively dismissing the Bredes’ claim for trespass. That claim was not tried in the district court, but was dismissed by that court solely on the basis of its determination that the Koops had an easement in the disputed route across the Bredes’ land. The merit of the trespass claim was not otherwise raised as an issue on appeal. Therefore, we remand this case to the district court for further proceedings on the Bredes’ claims for trespass and injunc-tive relief.

COURT OF APPEALS DECISION VACATED. DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

All justices concur except CARTER, J., who takes no part.

      . There was some suggestion by the parties in this case that the relaxed requirements for a prescriptive easement discussed in Simonsen became even more relaxed in Collins Trust. Our decision in Collins Trust did not rest, however, on the relaxed requirements, but rather on the traditional elements giving rise to a prescriptive easement.