author: KAPSNER, Justice.

text:
    2008 ND 148
    In the Matter of the ESTATE OF Harry Wayne CONLEY, Deceased. Margaret York, Petitioner and Appellee v. Albert E. Conley and Colin H. Conley, Co-Personal Representatives of the Estate of Harry Wayne Conley, Deceased, Respondents and Appellants.
    No. 20070321.
    Supreme Court of North Dakota.
    July 23, 2008.

      James A. Reisnour (argued), Mackenzie & Reisnour, Jamestown, ND, for petitioner and appellee.
    Joseph F. Larson II (argued), Larson Law Firm, Jamestown, ND, for respondents and appellants.
   KAPSNER, Justice.

[¶ 1] Albert and Colin Conley, as personal representatives of the estate of Harry Wayne Conley, appeal a district court order determining testacy in the estate of Harry Wayne Conley. Because the district court erroneously failed to apply the common law presumption that a missing will is revoked, we reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] Harry Wayne Conley died on April 21, 2001, in Jamestown, North Dakota. Harry Wayne Conley never married and had no children. He was survived by his brother, Clayton Conley, and his sisters, Margaret York and Merle McKinney. His parents and one brother, Wesley Conley, predeceased him. Wesley Conley was survived by two sons, Albert Conley and Colin Conley.

[¶ 3] Harry Wayne Conley executed a will on January 19, 1982. Harry Wayne Conley’s original 1982 will could not be found at the time of and after his death, but a conformed copy was obtained from the files of the lawyer who prepared it. Under the provisions of this missing will, Harry Wayne Conley’s sister, Margaret York, would receive his entire estate. If Harry Wayne Conley’s estate passed under the laws of intestacy, rather than the terms of his last known will, Harry Wayne Conley’s estate would pass to and be shared among his brother, Clayton Conley, his two sisters, Margaret York and Merle McKinney, and Albert Conley and Colin Conley, the children of Harry Wayne Conley’s deceased brother, Wesley Conley.

[¶ 4] Four years after Harry Wayne Conley’s death in 2001, Harry Wayne Conley’s nephews, Albert Conley and Colin Conley, initiated the probate of Harry Wayne Conley’s estate and moved the district court to appoint them co-personal representatives of Harry Wayne Conley’s estate. The district court granted their appointments in September 2005. Albert Conley and Colin Conley served a Notice and Information to Heirs and Devisees on all interested parties in September 2005.

[¶ 5] In May 2006, Margaret York filed a Petition to Establish Testacy and Right of Succession to the Estate Assets, and she requested that a conformed copy of Harry Wayne Conley’s 1982 will be admitted into probate. The co-personal representatives responded by motion, stating, in part, that no original will had been found and that it is presumed that Harry Wayne Conley had revoked all prior wills and died intestate.

[¶ 6] The district court conducted a hearing on the estate in December 2006. During the hearing, Harry Wayne Conley’s brother, Clayton Conley, and Harry Wayne Conley’s nephew, Albert Conley, testified. Margaret York did not testify, nor did she present any witnesses, though she did cross-examine Clayton Conley. Before the hearing was conducted, the co-personal representatives filed the affidavits of Clayton Conley and Albert Conley and the notarized Certificate of Alma Lu-lay. Margaret York filed her affidavit and the depositions of Carol Nelson and the attorney who drafted Harry Wayne Conley’s 1982 will.

[¶ 7] Clayton Conley’s affidavit provided that he knew of the existence of the will and had seen it as late as Christmas 2000. His affidavit provided that he helped Harry Wayne Conley take care of his paperwork, that the original will had been placed inside a particular folder in a filing box, and that until Christmas 2000, Clayton Conley saw the will there a few times each year. Clayton Conley’s affidavit provided that in early 2001, Harry Wayne Conley requested Clayton Conley take him to a lawyer so he could make a new will. Before Harry Wayne Conley contacted a lawyer or made a new document, he died. Clayton Conley’s affidavit provides that he thinks perhaps Harry Wayne Conley may have destroyed the will, because when Clayton Conley asked Harry Wayne Conley about the original will, Harry Wayne Conley said he had “taken care of it.”

[¶ 8] Albert Conley’s affidavit provided that he and his brother, Colin Conley, had been appointed co-personal representatives of Harry Wayne Conley’s estate. It also provided that Margaret York’s attorney sent a letter stating Harry Wayne Conley’s 1982 will could not be found and the estate would be distributed under an intestacy proceeding.

[¶ 9] Alma Lulay provided that she had been in custody of documents that belonged to Harry Wayne Conley’s mother, Winnifred Conley, from May 1981 to September 1982, she thoroughly reviewed the documents in her possession, and she did not find an original or copy of the 1982 will.

[¶ 10] Margaret York’s affidavit provided she was aware Harry Wayne Conley had created a will in 1982, and Winnifred Conley had given her a signed copy of Harry Wayne Conley’s original will shortly after it was created. Margaret York’s affidavit provided she had kept the copy of Harry Wayne Conley’s signed will in her closet, along with some of her personal documents, but the will and several other documents were removed from her closet, without her permission or knowledge, sometime after Harry Wayne Conley’s death. Margaret York’s affidavit stated Clayton Conley had a key to her apartment, and Clayton Conley was the only person who would have had an interest in taking the documents. Margaret York’s affidavit provided Harry Wayne Conley never told her about any intention to revoke his will, but rather that he intended the property in the will go to her.

[¶ 11] The deposition testimony of Carol Nelson related to the storage and retention of documents by the attorney who drafted the will, a conformed copy of which was admitted in this proceeding. The attorney who drafted the 1982 will provided deposition testimony related to the creation of the 1982 will.

[¶ 12] All of the affidavits, depositions, and notarized certificate were considered by the district court, along with briefs from the parties, filed both before and after the hearing.

[¶ 13] The district court issued its memorandum decision and order determining testacy dated August 24, 2007. The district court’s memorandum decision and order reads, in part:

Margaret’s attorney correctly points out that the North Dakota courts have never adopted the common law presumption of revocation of a lost will. The Court agrees with his contention that since the issue of whether or not there is a presumption of revocation of a lost will, has never been an “issue of first impression in this state” it follows that that presumption has never been adopted as a common law of this state. Thus, until North Dakota adopts a position regarding that issue, the law in North Dakota is unsettled. North Dakota common law is found in the decisions of the North Dakota courts, not the courts of other states. North Dakota’s common law can only be created by our Supreme Court. In summary, the Court concludes that there is no common law presumption in North Dakota that there is a presumption that a lost will has been revoked. There being no such presumption, it follows that there is likewise no burden on the proponent to initially offer clear and convincing evidence to rebut such presumption.
There is no dispute in this case that there has been a thorough search by all the relatives of Wayne and that the original has not been able to be produced. There is also evidence that the original will was properly executed on January 19, 1982 and was still in existence as late ■as January, 2001. There is no direct showing that the will was actually ever destroyed by Wayne. There is direct evidence that it was and is lost. The Court finds that it is proper to admit the conformed copy of the will as the Last Will and Testament of Wayne Conley and the Court further finds that the proponents have shown a prima facie case of proper execution and there has been no specific conduct to evidence revocation of the will as set forth in N.D.C.C. § 30.1-08-07. There being no showing of revocation by the opponents of the will and there being no statutory rebuttable presumption in North Dakota that the failure to find the original will creates a presumption of revocation, the Court finds that under the evidence and the circumstances in this case, Wayne did not revoke his January 19, 1982 will and the conformed copy presented to the Court is entitled to be admitted to probate.

[¶ 14] Based upon the district court’s analysis, Harry Wayne Conley’s 1982 will was not presumed to be revoked, and the terms of his will governed the terms under which his estate was devised. The district court awarded Margaret York the entirety of Harry Wayne Conley’s estate as provided by his will. Following the order, the co-personal representatives filed a notice of appeal, arguing the district court improperly determined the terms of the will, rather than North Dakota’s intestacy laws, controlled the distribution of his estate.

II

[¶ 15] The legal conclusions of a district court are fully reviewable upon appeal. Darling v. Gosselin, 1999 ND 8, ¶ 6, 589 N.W.2d 192. The interpretation and application of a statute is a question of law, which is also fully reviewable on appeal. Estate of Allmaras, 2007 ND 130, ¶ 13, 737 N.W.2d 612 (citing Estate of Glee-son, 2002 ND 211, ¶ 7, 655 N.W.2d 69). “We interpret uniform laws in a uniform manner, and we- may seek guidance from decisions in other states which have interpreted similar provisions in a uniform law.” Allmaras, at ¶ 13 (citing N.D.C.C. § 1-02-13; Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594). When we interpret and apply provisions in the Uniform Probate Code (“Code”), we may look to the Code’s Editorial Board Comments. Estate of Gleeson, 2002 ND 211, ¶ 7, 655 N.W.2d 69 (citing Estate of Zimmerman, at ¶ 14).

[¶ 16] Statutory interpretation also requires that “[w]ords used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears_” N.D.C.C. § 1-02-02. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. “In construing a statute, our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. We construe statutes as a whole and harmonize them to give meaning to related provisions.” Estate of Kimbrell, 2005 ND 107, ¶ 9, 697 N.W.2d 315 (citation and internal quotation omitted). There is no common law in any case where the law is declared by code. N.D.C.C. § 1-01-06.

[¶ 17] North Dakota has adopted section 2-507 of the Code as N.D.C.C. § 30.1-08-07, which reads, in relevant part:

Revocation by writing or by act.

1. A will or any part thereof is revoked:
a. By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
b. By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction. For purposes of this subdivision, “revocatory act on the will” includes burning, tearing, canceling, obliterating, or destroying the will or any part of it, A burning, tearing, or canceling is a “revocatory act on the will”, whether or not the burn, tear, or cancellation touched any of the words on the will.

N.D.C.C. § 30.1-08-07(l)(a) and (b). This statute does not specifically speak to the effect of losing or misplacing a will; rather, this section discusses physical acts or acts of writing that may be used by a testator to revoke a will. No portion of N.D.C.C. ch. 30.1-08 provides a specific provision explaining the effect of factual circumstances in which a testator loses or misplaces a will. Section 30.1-08-07, N.D.C.C., does not lack clarity, nor does it conflict with another statute on point. This provision is merely silent as to the loss of a will. The commentary in N.D.C.C. § 30.1-08-07(l)(a) and (b) does not deliver any guidance on this point.

[¶ 18] While N.D.C.C. § 30.1-08-07 does not speak to admitting a lost will, the drafter’s of the Code did contemplate the probate of lost wills; this intent is evidenced by the commentary contained in other sections. See N.D.C.C. § 30.1-14-03. The commentary in N.D.C.C. § 30.1-14-03 states, “Lost or destroyed wills must be established in formal proceedings.” The commentary in N.D.C.C. § 30.1-14-03 further directs that the probate of a lost, destroyed, or “otherwise unavailable” will be conducted under N.D.C.C. § 30.1-15-02, which reads:

1. Petitions for formal probate of a will, or for adjudication of intestacy ... must be directed to the court, request a judicial order after notice and hearing, and contain further statements as indicated in this section. A petition for formal probate of a will:
c.States whether the original of the last will of the decedent is in the possession of the court or accompanies the petition.
If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition must also state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.

N.D.C.C. § 30.1-15-02(l)(c).

[¶ 19] Neither N.D.C.C. §§ 30.1-14-03 nor 30.1-15-02 provide specific presumptions for admitting a missing will, but these statutes clearly indicate the drafter’s intent to allow, under certain circumstances, the probate of lost or missing wills.

[¶ 20] To date, this Court has not had an opportunity to interpret any of the statutes related to the probate of missing wills, and thus there is no clear authority on how to probate such a will. An exploration of North Dakota case law, in existence prior to the enactment of N.D.C.C. § 30.1 — 08—07(1)(a) and (b), shows that North Dakota, unlike a majority of jurisdictions, has not formally adopted or discussed the presumption of animo revocan-di which presumes a missing will has been intentionally destroyed and thus revoked by the testator, since the adoption of the Code. See Estate of Phillips, 359 Ill.App.3d 114, 295 Ill.Dec. 689, 833 N.E.2d 895, 901 (2005) (citations omitted) (“ “Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi.’ ”); see also Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892, 899-903 (2001) (discussing the animo revo-candi presumption).

[¶ 21] The animo revocandi presumption is founded upon the observation that

Matter of Hartman’s Estate, 172 Mont. 225, 563 P.2d 569, 571 (1977) (citations and internal quotations omitted). The presumption intends to protect the testator’s right to “change [his will] at pleasure” and recognizes “that wills are almost always destroyed secretly.” Tipton’s Estate, 173 Neb. 520, 113 N.W.2d 644, 647 (1962). Consequently, when a will cannot be found upon the death of the testator, the presumption arises that the testator secretly chose to revoke the missing will. Id. The fact that a conformed copy of the missing will is in the office of the attorney who drafted it does not alter the rationale for the presumption.

[¶ 22] Before adopting the Uniform Probate Code, North Dakota, like several other jurisdictions, had a statutory provision that provided the manner in which a lost will may be probated. The pre-Code statute read: “ ‘No will shall be prov[ ]ed as a lost or destroyed will unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently destroyed’ during his lifetime.” Merrick v. Prescott, 48 N.D. 195, 183 N.W. 1011, 1012 (1921) (quoting Comp. Laws § 8643 (1913)). North Dakota’s pre-Code missing-will statute served as a bar against admitting a missing will for probate, unless evidence showed (1) the will was in existence at the time of the death of the testator, or (2) the will was fraudulently destroyed by a person other than the testator. Merrick, at 1012. The pre-Code statute codified two specific methods of overcoming the presumption, which presumption was implicitly recognized, but not codified, by the pre-Code statute. See Matter of Hartman’s Estate, 172 Mont. 225, 563 P.2d 569, 572 (1977) (analyzing a Montana’s pre-Code provision and explaining Montana’s pre-Code “statute recognize[d] the former common law rule, by requiring proof either that the will was in existence at the time of the death of the testator, or that the legal presumption that the testator destroyed it animo revocandi be overcome by satisfactory proof that it was fraudulently destroyed in the lifetime of the testator”) (citations and internal quotations omitted).

[¶ 23] Montana had a pre-Code statutory provision nearly identical to that of North Dakota:

No will of any testator, who shall die after this chapter shall take effect as a law, shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the death of the testator or be shown to have been fraudulently destroyed in the lifetime of the testator....

Matter of Hartman’s Estate, 172 Mont. 225, 563 P.2d 569, 572 (1977). In Hartman’s Estate, the Montana Supreme Court examined whether the animo revocandi presumption survived repeal of their pre-Code law on lost or destroyed wills, and whether it survived the adoption of the Uniform Probate Code. Id. at 570-73. In doing so, the court looked at whether the pre-Code law and the animo revocandi presumption were one and the same so that repeal of the law also revoked the presumption. Id. at 571. After reviewing its statutes and case law, Montana reasoned “this Court was speaking of two separate and distinct rules of law when they considered the statute, on one hand, and the presumption on the other.” Id. at 572. The Montana Supreme Court discussed consistent decisions from other jurisdictions and ultimately concluded “the repeal of [the pre-Code laws] did not abolish the rebuttable presumption of revocation, which arises when a duly executed will, last seen in the testator’s possession, cannot be found at his death.” Id. at 573.

[¶ 24] Like Montana, we conclude the repeal of the pre-Code statute did not repeal the common law presumption of animo revocandi. To interpret and apply Uniform Laws uniformly, we therefore join the majority of jurisdictions that have adopted the Code and that have concluded the presumption of animo revocandi can be and will be used with the Code. See Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892, 899-903 (2001); Estate of Phillips, 359 Ill.App.3d 114, 295 Ill.Dec. 689, 833 N.E.2d 895, 901 (2005).

[¶ 25] The district court reasoned that because this Court has not yet had the opportunity to consider the applicability of this presumption in North Dakota, the

presumption has never been adopted as a common law of this state. Thus, until North Dakota adopts a position regarding that issue, the law in North Dakota is unsettled. North Dakota common law is found in the decisions of the North Dakota courts, not the courts of other states. North Dakota’s common law can only be created by our Supreme Court.

The district court erred in defining and applying the common law in this case. North Dakota incorporates the common law as part of the law of North Dakota. “The decisions of the tribunals enforcing those rules, which, though not enacted, form what is known as customary or common law.” N.D.C.C. § 1-01-03(7).

“The common law is therefore adopted by statute as the basic law applicable to civil rights and remedies not defined by the statute. Where there is no express constitutional or statutory declaration upon the subject the common law is applied.”

Tarpo v. Bowman Pub. Sch. Dist., 232 N.W.2d 67, 70 (N.D.1975) (quoting McLaughlin Oil Co. v. First State Bank of Buffalo, 79 N.D. 525, 57 N.W.2d 860, 864 (1953) (internal citations omitted)). In this case, because there is no express law regarding the animo revocandi presumption, the common law is applied. Zueger v. Carlson, 542 N.W.2d 92, 95-96 (N.D.1996).

[¶ 26] Section 1-01-05, N.D.C.C., states that “[t]he evidence of the common law is found in the decisions of the tribunals.” Section 1-01-05, N.D.C.C., does not provide that the common law is derived only from the decisions of North Dakota tribunals. This Court has been called upon to discuss the source and breadth of the common law:

In determining the common law of this state we are not restricted to the law as it has evolved over the centuries in England. The common law, which is based on reason and public policy, can best be determined by studying the decisions of our federal and state courts and the writings of past and present students of our country’s law over all the years of American judicial history. This is not to say that help in determining the common law may not be found by studying the ancient law of England, but we are in no wise limited to such a study for a determination of the common law of North Dakota.

Lembke v. Unke, 171 N.W.2d 837, 842 (N.D.1969).

[¶ 27] Here, the district court erred in determining this common law presumption did not exist in North Dakota because the issue has not been before this Court. As noted above, the animo revo-candi presumption was an English common law rule, which was carried over and adopted by a majority of jurisdictions in the United States. The presumption exists at common law, and the district court erred in deciding such a presumption could not and did not exist because that issue had not been adjudicated by this Court. We adopt the presumption and must turn to the question of what standard of evidence is required to rebut the presumption.

[¶ 28] In a majority of jurisdictions, the courts employ something akin to a clear-and-convincing evidence standard. See Estate of Richard, 556 A.2d 1091, 1092 (Me.1989); Estate of Glover, 744 S.W.2d 939, 940 (Tex.1988); Harris v. Harris, 216 Va. 716, 222 S.E.2d 543, 545 (1976); Estate of Newman, 164 Mont. 15, 518 P.2d 800, 803 (1974); Estate of Willis v. Willis, 207 So.2d 348, 349 (Miss.1968); Briscoe v. Schneider, 97 Or.App. 352, 775 P.2d 925, 926-27 (1989). We note a elear-and-con-vincing standard is consistent with several evidentiary standards required in the North Dakota Uniform Probate Code for rebutting other presumptions. See Estate of Wagner, 551 N.W.2d 292, 295 (N.D.1996) (providing an attestation clause is presumed to be true unless overcome by clear and convincing evidence); N.D.C.C. § 30.1-08-07(3) (providing that a new will, which completely disposes of the testator’s estate, is presumed to replace an earlier will unless this presumption is rebutted by clear and convincing evidence); N.D.C.C. § 30.1-08-07(4) (a new will that does not completely dispose of the testator’s estate is presumed to supplement an earlier will unless this presumption is rebutted by clear and convincing evidence). However, N.D.R.Evid. 301(a) provides that in presumptions arising in civil proceedings not otherwise provided for by statute, the party against whom a presumption arises “has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.” Because the presumption in the instant case is one derived of the common law, and not one in a statute that provides its own evidentiary burden, N.D.R.Evid. 301(a) requires the party seeking to probate the missing will to demonstrate, by a preponderance of the evidence, that the testator did not destroy or revoke the missing will animo revocan-di.

[¶ 29] A party requesting the probate of a missing will must first comply with the procedures required under N.D.C.C. § 30.1-15-02(1X0), which requires the party petitioning to probate the missing will to “[s]tate[ ] whether the original of the last will of the decedent is in the possession of the court or accompanies the petition[,]” and “[i]f the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will, and indicate that it is lost, destroyed, or otherwise unavailable.” See also Matter of Hartman’s Estate, 172 Mont. 225, 563 P.2d 569, 571 (1977) (providing a statutory provision, identical to N.D.C.C. § 30.1-15-02(l)(c), and explaining that the party seeking the probate of the lost will must comply with such requirements in the petition). After meeting the requirements of the petition provided in N.D.C.C. § 30.1-15-02(l)(c), the party petitioning for the probate of a missing will must demonstrate, by a preponderance of the evidence, that the will existed at the time of the testator’s death, that the will was fraudulently destroyed in the lifetime of the testator, or by other evidence demonstrating the testator did not intend to revoke the missing will. N.D.R.Evid. 301(a) (stating the preponderance standard for presumptions); Estate of Mason v. Mason, 289 S.C. 273, 346 S.E.2d 28, 31 (Ct.App.1986) (citing Lowe v. Fickling, 207 S.C. 442, 36 S.E.2d 293, 295 (1945) (emphasis in original) (“Once this presumption arises, the proponent of the missing will has the burden of rebutting it by showing either that: the will existed at the time of the testator’s death, was lost after his death, or was destroyed by a third party without the testator’s knowledge or consent.”)); Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892, 901 (2001) (providing that the presumption may be rebutted by several methods, so long as the missing will’s proponent provides “circumstantial or other evidence to the contrary”). Only after the petitioners meet the requirements for the petition, as provided in N.D.C.C. § 30.1-15 — 02(1)(c), and rebut, by a preponderance of the evidence, the presumption that a missing will is revoked, may a conformed copy of the will be probated.

Ill

[¶ 30] We reverse the district court order determining testacy in the estate of Harry Wayne Conley, concluding the district court erroneously failed to apply the common law presumption that a missing will is revoked, and we remand for further proceedings consistent with this opinion.

[¶ 31] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and DANIEL J. CROTHERS, JJ., and ALLAN L. SCHMALENBERGER, D.J., concur.

[¶ 32] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2008 SD 54
    Kenneth M. TONSAGER, Sr. and Darlene M. Tonsager, Plaintiffs and Appellants, v. David Leroy LAQUA, Defendant and Appellee, Wall Lake Sanitary District, Third Party Defendant and Appellee.
    No. 24602.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 7, 2008.
    Decided June 25, 2008.

      Michael E. Unke of Unke Law Office, Salem, South Dakota, Attorney for plaintiffs and appellants.
    Jennifer L. Larsen of Hagen, Wilka & Archer, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee David Laqua.
    Paul H. Linde of Schaffer Law Office, Prof., LLC, Sioux Falls, South Dakota, Attorneys for defendant and appellee Wall Lake Sanitary District.
   KONENKAMP, Justice.

[¶ 1.] This is a dispute between adjoining landowners on the extent and meaning of an easement granted to a sanitary sewer district. The circuit court concluded that the easement was private, and therefore, the neighboring landowner could not access the public sewer system through the adjoining landowner’s property. Because the easement was granted to a sanitary sewer district, a governmental entity, and the district clearly accepted the grant by its use of the sewer facilities, the court erred in declaring the easement private. We reverse and remand.

Background

[¶ 2.] Kenneth, Sr. and Darlene Ton-sager (plaintiffs) brought suit against their neighbor David Laqua (defendant), seeking a permanent injunction and damages for covenant and easement violations. Defendant counterclaimed for a permanent injunction and damages on allegations that plaintiffs’ sewer pipes passed under his property without his permission and without an easement allowing the encroachment. Both properties are served by a centralized sanitary sewer system, owned and maintained by the Wall Lake Sanitary District. Just inside defendant’s lot line there is a sewer lift station dedicated to the Sanitary District. When plaintiffs bought their property in 1998, plaintiffs’ sewer line was connected to that lift station, as required by the Sanitary District. Defendant acquired his property in 2004 from his father, who purchased it from Donald E. Larson, the owner who executed the easement in question.

[¶ 3.] Plaintiffs responded to defendant’s counterclaim by bringing a third-party complaint against Wall Lake. They asserted that Wall Lake was hable for any damages plaintiffs suffered as a result of Wall Lake’s failure to obtain the proper easement for the sewer lines. Wall Lake moved for summary judgment on plaintiffs’ third-party complaint, contending that plaintiffs failed to provide notice as required by SDCL 3-21-2, the statute of limitations had expired, and sovereign immunity barred the suit. All parties moved for summary judgment.

[¶ 4.] In its grant of summary judgment to defendant on his counterclaim, the court ruled: “I find that the easement granted to Wall Lake is an easement in gross. There is no language in the easement dedicating the easement to public use and it can be inferred that [defendant] did not intend and would not want this easement to Wall Lake to be extended to the public at large.” In so holding, the court concluded that only a private easement existed. Plaintiffs were ordered to immediately disconnect and remove all sewer piping on defendant’s property. As to Wall Lake’s motion, the circuit court granted summary judgment against plaintiffs for all the reasons asserted by Wall Lake. Plaintiffs appeal both grants of summary judgment. Because we conclude that the court erred in granting summary judgment to defendant, the summary judgment for Wall Lake becomes moot.

Analysis and Decision

[¶ 5.] Plaintiffs assert error in the circuit court’s decision to grant summary judgment on defendant’s sewer line counterclaim. According to plaintiffs, the Wall Lake easement unambiguously dedicates defendant’s property to the public. They point out that Larson, the previous owner of defendant’s property, “knew that two other property owners would connect” to the sewer line on his property. Plaintiffs also argue that because the easement’s purpose is for Wall Lake to construct and maintain sewer facilities for the benefit of multiple users, “the nature of the enjoyment by which [the easement] was acquired” gives them the right to cross defendant’s property to connect to those facilities. See SDCL 43-13-5. Wall Lake Sanitary District joins in plaintiffs’ position, noting that “the trial court’s order essentially prevents Wall Lake from providing access to a necessary sewer system.”

[¶ 6.] An easement’s extent must be ascertained from the document itself: if its words are plain and unambiguous, “the matter is concluded.’ ” Salmon v. Bradshaw, 84 S.D. 500, 505-06, 173 N.W.2d 281, 284 (1969) (citation omitted). “The terms of the grant, as they can be learned either by words clearly expressed, or by just and sound construction, will regulate and measure the rights of the grantee.” Id. (citation omitted). When the terms are “clear, definite and unambiguous” it is “unnecessary to resort to extrinsic facts or circumstances to determine its meaning or extent.” Id.

[¶ 7.] In support of his motion for summary judgment, defendant submitted an affidavit stating, “At no time have I granted an easement for the public use of the sewer facilities located on my property, and have no knowledge that any prior owner of my property has granted an easement dedicated to the public use for such purposes.” In 1991, however, the prior owner of defendant’s property, Donald E. Larson, executed a “Sewer System Easement,” which states in part:

GRANTOR, hereby grant [sic] to the Wall Lake Sanitary District, ... a permanent easement for the purpose of surveying, locating, staking, constructing, installing, maintaining and inspecting sewer lines, manholes, cleanouts, pump vaults, valves and other facilities related thereto over, under, across and through the following described real property in Minnehaha County, South Dakota ... together with the right of ingress and egress over such lands and any adjacent lands owned by GRANTOR, his successors and assigns for the purposes of this easement.
The rights, conditions and provisions of this easement shall inure to the benefit of, and is binding upon, the heirs, successors and assigns of the parties hereto and shall constitute a covenant running with the land for the perpetual benefit of the GRANTEE, its successors and assigns.

From reading this document, our question is whether a plain reading or a “just and sound” construction will render this easement a public dedication.

[¶ 8.] Wall Lake Sanitary District is a political subdivision incorporated expressly to provide a sewage system for the residents of its district. See SDCL 34A-5-1; SDCL 34A-5-14; SDCL 34A-5-26(4). Although the word “public” cannot be found in the easement, the language of this document clearly grants a “perpetual” easement to a public entity. Binding on the grantor’s “heirs, successors and assigns,” the easement is specifically for “constructing, installing, maintaining and inspecting sewer lines, manholes, clean outs, pump vaults, valves and other facilities thereto over, under, across and through” defendant’s property.

[¶ 9.] An easement may be dedicated to public use if the owner clearly acts to so dedicate it and the public entity accepts the dedication. Tinaglia v. Ittzes, 257 N.W.2d 724, 728-29 (S.D.1977) (citations omitted); see also Bergin v. Bistodeau, 2002 SD 53, ¶¶ 15-17, 645 N.W.2d 252, 255-56. Defendant concedes that in certain circumstances, when the grantee of an easement is a public entity, such easement may grant rights to public use. Nonetheless, defendant contends that a dedication to public use was not plainly manifested in this easement. But this Court has long recognized “the universal rule of law that no particular form of dedication is necessary!;] if the same is in writing, no particular wording is necessary.” City of Watertown, v. Troeh, 25 S.D. 21, 125 N.W. 501, 503 (1910) (citation omitted). Moreover, as Justice Whiting wrote in Troeh, “the intent to dedicate may be shown by the use of the land in question.” Id. (citing Mason v. City of Sioux Falls, 2 S.D. 640, 51 N.W. 770 (1892).) While the grantor of the easement, Larson, still owned the property defendant now occupies, plaintiffs hooked their sewer pipe to the lift station on Larson’s land.

[¶ 10.] Still, defendant persists that Wall Lake Sanitary District never accepted the public dedication of the easement. Although a minority of courts have required a formal acceptance, the “well-bedded” rule, acknowledged in South Dakota for almost a century, is that “if the principals have, by their conduct, accepted the dedication, it is of no great importance that the agents have taken no action in the matter.” Id. No one questions that Wall Lake has continued to use the sewer lines and facilities here since the easement was granted.

[¶ 11.] To accept defendant’s claim that this “easement is for the benefit of the Sanitary District only” is to forsake the very reason the sanitary district exists— for the benefit of its residents. See SDCL 34A-5-1. The circuit court erred as a matter of law in granting summary judgment to defendant on his sewer pipe counterclaim. We remand for entry of an order of summary judgment for plaintiffs on this issue.

[¶ 12.] Reversed and remanded.

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

      . Under our familiar standard, ''[w]hen reviewing a grant of summary judgment, we decide only whether there were genuine issues of material fact and whether the law was correctly applied.” Heib v. Lehrkamp, 2005 SD 98, ¶ 19, 704 N.W.2d 875, 882 (citing SDCL 15 — 6—56(c); Keystone Plaza Condominiums Ass'n v. Eastep, 2004 SD 28, ¶ 8, 676 N.W.2d 842, 846). "We view the evidence in a light most favorable to the nonmoving party.” Toben v. Jeske, 2006 SD 57, ¶ 9, 718 N.W.2d 32, 35 (citing Wilson v. Great Northern R.R. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). The moving party has the burden of showing "the absence of any genuine issue of material fact and entitlement to judgment as a matter of law.” Yarcheski v. Reiner, 2003 SD 108, ¶ 15, 669 N.W.2d 487, 493 (citing S.D. Dept. of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989)).

      . As further proof for the existence of a public dedication, plaintiffs point to the plat filed by defendant with the Minnehaha Register of Deeds office. This plat was only submitted by plaintiffs after the court granted summary judgment against them, when they moved for reconsideration. The court denied the motion. Defendant objects to our consideration of this plat because it was not considered by the circuit court. In keeping with our longstanding policy, we will not accept evidence not considered by the circuit court.

      . This document was prepared by the engineering firm of DeWild Grant Reckert and Associates Company of Rock Rapids, Iowa, presumably on behalf of the Sanitary District.

      . SDCL 34A-5-14 provides: “Such sanitary district, created and established under this chapter, shall be a governmental subdivision of this state and a public body, corporate and politic.”

      . See also Wildwood Ass’n v. Harley F. Taylor, Inc., 2003 SD 98, ¶ 16, 668 N.W.2d 296, 302:
      A dedication may occur by express grant or by legal implication. Brown v. Bd. of County Comm'rs for Pennington County, 422 N.W.2d 440, 442 (S.D.1988) (citation omitted). A dedication is implied where "it arises by operation of law from the owner's conduct and the facts and circumstances of the case.” Tinaglia v. Ittzes, 257 N.W.2d 724, 729 (S.D.1977) (quoting McQuillin, Municipal Corporations § 33.02 (3rd Rev. Ed.)).


author: KONENKAMP, Justice. MEIERHENRY, Justice

text:
    2008 SD 53
    STATE of South Dakota, Plaintiff and Appellant, v. John Scott LEIGH, Defendant and Appellee.
    No. 24560.
    Supreme Court of South Dakota.
    Considered on Briefs on March 26, 2008.
    Decided June 25, 2008.

      Casey N. Bridgman, Jerauld County State’s Attorney, Jeff Adel, Jerauld County Deputy State’s Attorney, Wessington Springs, South Dakota, Attorneys for plaintiff and appellant.
    Jeff Burns of Churchill, Manolis, Freeman Kludt, Shelton & Burns, Huron, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] During a routine traffic stop, a highway patrol officer asked the driver, “You mind if I pat you down to make sure you don’t have any knives or anything?” The driver replied, ‘Yeah.” Taking this ambiguous response as consent, the trooper patted down the driver’s pockets. When the trooper felt a hard object, he reached in to retrieve it. He removed a hollow part of a pen containing a white powder residue, later tested to be methamphetamine. After he was arrested and charged with unauthorized possession of a controlled substance, the driver moved to suppress the evidence on the ground that he did not consent to the search of his person. The circuit court granted the motion. We affirm in part, and remand in part for further proceedings to determine if the patdown could have been justified on grounds of officer safety.

Background

[¶ 2.] On June 16, 2006, John Scott Leigh was pulled over by South Dakota Highway Patrolman Brian Biehl because the trailer Leigh was pulling did not have working taillights. As Trooper Biehl approached Leigh’s vehicle, he noticed that the taillights were not working because they were not properly connected. He also noticed that Leigh did not have a front license plate. Leigh showed the trooper a valid Arizona temporary license plate located on the back ledge of the vehicle, by the rear window. It was not affixed in accord with SDCL 32-5-98.

[¶ 3.] Trooper Biehl asked Leigh to accompany him to his patrol car. During the walk to the car, Leigh placed his hands in his pockets. What occurred next is in dispute. According to Trooper Biehl, when he noticed Leigh put his hands in his pockets, he asked him to remove them. Leigh complied. The trooper later recounted that after Leigh put his hands in his pockets a second time, he asked Leigh what was in his pockets. Leigh replied, “Nothing.” Trooper Biehl testified that he asked Leigh, “Do yon mind if I pat you down to make sure you don’t have any knives or anything then?” Leigh responded, “Yeah.” Trooper Biehl took this response as consent.

[¶4.] According to Trooper Biehl, before the patdown neither one of them was in the patrol car. During the patdown the trooper felt a hard object in Leigh’s pocket that the trooper thought could be a weapon. He removed the object from Leigh’s pocket, and saw it was part of a hollow pen tube. Trooper Biehl examined the tube twice, and during the second visual examination, noticed a white powder residue. The residue later tested positive for methamphetamine.

[¶ 5.] Leigh related a different version of events. According to Leigh, Trooper Biehl never asked him to remove his hands from his pockets. He also insisted that before the search, he and the trooper were in the patrol car, at which time Trooper Biehl asked him what was in his pockets. Leigh agreed that he responded, “Nothing,” but then contended that Trooper Biehl said, ‘You’ve got something right there.” After that remark, Leigh said the trooper asked to pat him down “to make sure no knives or anything.” Leigh agreed that he replied, “Yeah,” but insisted that he meant “yeah, I mind.”

[¶ 6.] There is no dispute that Trooper Biehl placed his hand in Leigh’s pocket and removed the pen tube. After this, and the search of his vehicle, Leigh was arrested and charged with unauthorized possession of a controlled substance. He moved to suppress the evidence, asserting that Trooper Biehl performed an illegal search of his person, extended the traffic stop without specific and articulable suspicion of a violation, and questioned him in custody without giving him Miranda warnings. After a hearing, the circuit court granted Leigh’s motion to suppress on the ground that the State failed to establish that Leigh consented to the search. The State appeals contending that (1) the court’s findings of fact were clearly erroneous, (2) the court applied the wrong legal standard, and (3) the search should have been upheld because Trooper Biehl’s patdown was for safety reasons.

Standard of Review

[¶ 7.] We review decisions on motions to suppress for a violation of a legal right under the de novo standard. State v. Tiegen, 2008 SD 6, ¶ 14, 744 N.W.2d 578, 585 (citing State v. Stevens, 2007 SD 54, ¶ 5, 734 N.W.2d 344, 346 (quoting State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319 (quoting State v. Herrmann, 2002 SD 119, ¶ 9, 652 N.W.2d 725, 728 (citations omitted)))). “We will not disturb a circuit court’s findings of fact unless they are clearly erroneous in light of the entire record.” State v. Lockstedt, 2005 SD 47, ¶ 14, 695 N.W.2d 718, 722 (citing State v. Guthrie, 2001 SD 61, ¶ 56, 627 N.W.2d 401, 423 (citation omitted); SDCL 23A-32-9).

Analysis and Decision

[¶ 8.] The State argues that the circuit court’s findings of fact omit important and relevant facts, and as a result, do not reflect what actually happened. Although the State asserts that the court’s findings are “technically true,” it argues that they are nevertheless clearly erroneous because they are incomplete. According to the State, the court failed to find, among other things, that (1) Trooper Biehl was concerned for his safety and the patdown was necessary to check for the presence of concealed weapons, (2) the trooper was alone at the time of the stop, (3) during the patdown, Leigh neither by words nor gestures indicated that he was not consenting, and (4) when he patted Leigh down, Trooper Biehl felt a hard object in Leigh’s pocket.

[¶ 9.] With Trooper Biehl’s testimony, the videotape, and the parties’ submissions, the court made the following findings:

1. On June 16, 2006, Trooper Bryan Biehl made a routine traffic stop as Defendant’s lights on a trailer he was pulling were not working.
2. Upon making contact with the Defendant, the parties immediately determined the tail lights were not working because they were not properly plugged into the vehicle and the situation was remedied.
3. Trooper Bryan Biehl also observed that there was no visible license plate on the vehicle.
4. Trooper Bryan Biehl asked the Defendant for his driver’s license and requested that he walk back to the patrol car with him.
5. It was a rainy day and the Defendant was dressed in a tank top and shorts.
6. On the way to the patrol car the Defendant put his hands in his pockets.
7. Once the parties were inside the patrol car, Trooper Bryan Biehl asked the Defendant what he had in his pockets and also asked him if he minded if he patted him down for weapons?
8. The Defendant answered “yeah”.
9. Trooper Bryan Biehl then patted him down and inserted his hand inside the Defendant’s front pant pocket and found a piece of a pen.

[¶ 10.] Although there is a videotape of the stop, it does not show the interaction between Trooper Biehl and Leigh. Because the parties disputed what physically occurred in relation to the audio account of the stop, the findings of the court are in part premised on credibility. “When a court ‘bases a finding of consent on the oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong since the [court] had the opportunity to observe the demeanor of the witnesses.’ ” State v. Castleberry, 2004 SD 95, ¶ 12, 686 N.W.2d 384, 388 (quoting United States v. Sutton, 850 F.2d 1083, 1086 (5thCir.l988)) (alteration in Castleberry).

[¶ 11.] At the suppression hearing, Trooper Biehl testified that neither he nor Leigh was in the patrol car when the trooper asked for consent to search. Trooper Biehl also testified that after he asked Leigh to remove his hands from his pockets, Leigh did so, but immediately put them back in. The trooper said this made him uncomfortable, and he asked Leigh for consent to pat him down. During cross examination, Trooper Biehl testified that he did not recall specifically asking for consent to search Leigh’s pockets, but possibly for consent to conduct a patdown search. After the videotape was played for the court during the trooper’s cross examination, the trooper explained that Leigh was starting to get into the vehicle and placed his hands in his pockets, but neither of them was inside the vehicle yet. Trooper Biehl testified that before getting into the vehicle he asked Leigh what he had in his pockets and requested consent to conduct a patdown search.

[¶ 12.] Whether the trooper and Leigh were inside the vehicle during the patdown, as the circuit court found, cannot be determined conclusively from the videotape. Trooper Biehl and Leigh can be seen walking back to the patrol car. The sound of rain and wind can be heard. After the trooper and Leigh walk outside the camera’s visual range, it is possible that they entered the patrol car because the ability to hear the rain and wind is greatly diminished, as if the two were inside the vehicle. Therefore, the court’s finding that they were in the patrol car is supportable.

[¶ 13.] The court’s other findings are also supported in the record. The court found that Leigh put his hands in his pockets, as is evident from the videotape. The court then found that Trooper Biehl asked Leigh if he minded if he patted him down for weapons. On the videotape, Trooper Biehl asked Leigh, “What have you got in your pockets, Sir?” Leigh replied, “Nothing.” Trooper Biehl stated, “Nothing (inaudible) ... you’ve got something right here. Hang on just a second. K. K, You mind if I pat you down to make sure you don’t have any knives or anything?” Leigh responded, “Yeah.” Trooper Biehl then conducted the search. Based on our review of the record, the court’s findings are not clearly erroneous. That the court did not include findings that Trooper Biehl was alone at the time of the search, was concerned about his safety, or felt a hard object in Leigh’s pockets does not render the court’s ultimate findings incomplete.

[¶ 14.] Next, the State contends that the court applied an incorrect legal standard. The court noted that the State had “the burden of establishing voluntariness by a preponderance of the evidence.” However the State insists that voluntariness was , not at issue. Rather, the issue was whether consent was given at all, which requires an examination of Leigh’s words and conduct to determine if those words and that conduct would lead a reasonable person to believe that Leigh consented. See Castleberry, 2004 SD 95, ¶ 10, 686 N.W.2d at 387.

[¶ 15.] In Castleberry, the defendant claimed that he did not consent to a search of his vehicle. Id. ¶ 8. The State argued that Castleberry consented when he responded to the officer’s request to search with, “Um, yeah, why, did you smell something?” or, “Um, well sure, why did you smell something?” Id. ¶ 14. On appeal, we examined the totality of the circumstances to determine whether the alleged consent was freely and voluntarily given. Id. ¶ 9. Castleberry had prior experience with the legal system. Id. ¶ 13. There was nothing intimidating or coercive to indicate he was acting against his will. Id. Although the officer could not confirm whether Castleberry said, “Um, yeah, why did you smell something,” or, “Um, well sure, why did you smell something,” he was consistent that consent was given. Id. ¶ 14. Furthermore, at no time during the search did Castleberry protest. Id. In light of the circumstances and the court’s ability to judge the credibility of the witnesses, we upheld the court’s decision that Castleberry consented under our clearly erroneous standard of review.

[¶ 16.] Here, we are faced with a similar equivocal answer to an officer’s request to conduct a warrantless search. However, we have a different result: the circuit court found no valid consent. Our standard of review remains the same. We will not reverse “[e]ven if we were convinced that the opposite finding would have been made had we been the fact finders,” unless in light of the entire record we are left with a definite and firm conviction that a mistake has been made. Id. ¶ 11; see also Lockstedt, 2005 SD 47, ¶ 14, 695 N.W.2d at 722. Moreover, we Anew the evidence in a light most favorable to the court’s findings. Lockstedt, 2005 SD 47, ¶ 14, 695 N.W.2d at 722 (citing State v. Tilton, 1997 SD 28, ¶ 21, 561 N.W.2d 660, 665).

[¶ 17.] Searches conducted Avith consent are permitted as an exception to the warrant requirement. Castleberry, 2004 SD 95, ¶ 8, 686 N.W.2d at 387. When the State relies on consent for a search, it must prove that the consent was valid by a preponderance of the evidence. Id. ¶ 15. Whether consent was given depends not on “whether [defendant] consented subjectively, but whether his conduct would have caused a reasonable person to believe that he consented.” Id. ¶ 10 (quoting United States v. Jones, 254 F.3d 692, 695 (8thCir.2001)) (alteration in Castleberry). “‘Consent can be inferred from words, gestures, and other conduct.’ ” Id. (citation and alteration omitted). The process of determining whether consent was valid (i.e., given at all) requires an examination of the totality of the circumstances. See id. ¶ 9.

[¶ 18.] Although the court did not state that it was examining Leigh’s conduct and words to determine if they would lead a reasonable person to conclude that there was consent, the court did find that Leigh’s answer of “yeah” was ambiguous and required “further clarification.” Moreover, the court ruled that the State failed to meet its “burden to establish that the search performed by Trooper Bryan Biehl was consensual.” These are, in effect, conclusions by the court that Leigh’s words and conduct would not have led a reasonable person to believe consent was given.

[¶ 19.] Nonetheless, the State contends that the totality of circumstances surrounding the trooper’s request indicate that Leigh’s response constituted consent. Specifically, the State asserts that during the search Leigh did not protest or object when Trooper Biehl searched him. The court did not make a finding on this point. Yet, even if we assume the truth of the State’s claim, an absence of protest or objection alone does not necessitate a conclusion that consent was given. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). The State had the burden of establishing valid consent by a preponderance of the evidence and “mere acquiescence to a show of lawful authority is insufficient to establish voluntary consent.” Id. Based on our review of the record, the court’s conclusion that the State failed to meet its burden does not leave us with a definite and firm conviction that a mistake was made.

[¶ 20.] The State also claims that if consent is not found, the search was legal based on Trooper Biehl’s expressed safety concerns with the possible presence of a concealed weapon. This issue was not argued to the court at the motion hearing, nor is there a ruling for us to review. “We have long held that issues not addressed or ruled upon by the trial court will not be addressed by this Court for the first time on appeal.” City of Watertown v. Dakota, Minn. & E.R.R. Co., 1996 SD 82, ¶ 26, 551 N.W.2d 571, 577 (citing Keegan v. First Bank of Sioux Falls, 519 N.W.2d 607, 615 (S.D.1994)) (additional citations omitted).

[¶ 21.] Still, the State preserved this issue by inserting in its proposed findings of fact and conclusions of law that Trooper “Biehl reasonably believed his safety might be compromised by the presence of weapons concealed on” Leigh, and Leigh’s “action in putting his hands in his pockets gave Patrolman Biehl reasonable grounds to believe that his safety might be compromised by the presence of concealed weapons, so that a pat-down search of [Leigh] was justified even without consent.” See Jager v. Ramona Bd. of Educ., Ramona Sch. Dist., 444 N.W.2d 21, 26-27 (S.D.1989) (issue preserved by filing proposed findings and conclusions and objections). Therefore, although we affirm the court’s decision on the issue of consent, we remand for a determination by the court on whether, absent consent, the search was valid on the ground that the circumstances gave rise to a reasonable belief that the trooper’s safety may have been compromised by a concealed weapon. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Sleep, 1999 SD 19, 590 N.W.2d 235.

[¶ 22.] Affirmed in part and remanded in part for further proceedings.

[¶ 23.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur.

[¶ 24.] SABERS and MEIERHENRY, Justices, concur in part and dissent in part.

MEIERHENRY, Justice

(concurring in part and dissenting in part).

[¶ 25.] I agree with the conference opinion that Judge Erickson’s order to suppress based on lack of consent should be affirmed. I disagree that we should remand for additional findings as to whether the search was valid because of officer safety issues. Even though the State may have preserved the issue on appeal, the State’s evidence to the circuit court does not support its proposed finding.

[¶26.] The officer, in an answer to a question from the court, stated that Leigh’s behavior or actions were not threatening. He testified that when Leigh put his hands in his pockets it made him uncomfortable as to whether or not he had a weapon or something in his pockets. However, when the court questioned him further he indicated as follows:

Court: Other than he put his hands in his pockets, and took them out when requested and then put them back in, was there anything else, any suspicion that came at that your mind?
Officer: No.
Court: Nothing else? I mean he wasn’t acting nervous?
Officer: He was acting nervous, but as far as threatening wise, no.

The court also made the following comments regarding the officer’s suspicion:

My concerns go back to the very beginning. I mean this is a routine stop for a taillight violation. It’s pretty clear immediately that they knew what the reason was. It was unplugged. They plugged it in. It’s getting a warning ticket at best.
And as the guy walks back to the vehicle, he sticks his hands in his pocket. And I remember his thumbs on the outside of the pants. The officer testified that he asked him to take his hands out of his pockets and the guy did and put them back in. I don’t remember hearing the officer ask him to do that [on the tape]. And looking at the way it was done — or the way the hands were in the pockets, I certainly don’t think any suspicion about that.
So I’m going to let you brief it, folks. It’s — my first concern is whether there was even a valid reason based upon that scenario, that the officer had a right to even ask for a pat down. That’s what starts this whole thing and — I know that at a certain point in time an officer can ask for a pat down search, but I don’t know that there was enough information to rise to the level where you can even do that in this case.
There are times and reasons why an officer can do a pat down, but watching the way the gentleman walked back to the vehicle, with his hands in his pocket, that’s something all of us do. It’s a cold rainy day. So I want to you brief that question.

The evidence, as the State presented it at the suppression hearing, does not support a finding that the search was valid due to officer safety concerns. Consequently, there would be no reason to remand on this issue. The circuit court’s order should be affirmed.

[¶ 27.] SABERS, Justice, joins this special writing.


author: ZINTER, Justice. SABERS, Justice

text:
    2008 SD 60
    CLARK COUNTY, a political subdivision of the State of South Dakota, and State of South Dakota Petroleum Release Compensation Fund, Plaintiffs and Appellants, v. SIOUX EQUIPMENT CORPORATION, a South Dakota corporation, Defendant, Third Party Plaintiff and Appellee, v. Eaton Corporation and Snap-Tite, Inc., Third Party Defendants and Appellees.
    No. 24462.
    Supreme Court of South Dakota.
    Argued on Feb. 12, 2008.
    Decided July 2, 2008.

      Judith K. Grunewaldt of Judith K. Gru-newaldt Law, Prof. LLC, Pierre, South Dakota, Attorney for plaintiff and appellant SD Petroleum Release Comp.
    Naomi R. Cromwell Richard Tieszen of Tieszen Law Office, Prof. LLC Pierre, South Dakota, Attorneys for plaintiff and appellant Clark County.
    Arthur M. Hopper of Austin, Hinderaker, Haekett, Hopper, Strait & Bratland, Watertown, South Dakota, Attorneys for defendant, third party plaintiff and appel-lee Sioux Equipment.
    Robert B. Anderson of May, Adam, Gerdes & Thompson, LLP Pierre, South Dakota, Attorneys for third party defendant and appellee Eaton Corporation.
    Ronald A. Parsons, Jr., of Johnson, Hei-depriem, Janklow, Abdallah & Johnson, LLP, Sioux Falls, South Dakota, Attorneys for third party defendant and appel-lee Snap-Tite, Inc.
   ZINTER, Justice.

[¶ 1.] Sioux Equipment installed a fuel storage and dispensing system on real property owned by Clark County (County). County and the State of South Dakota Petroleum Release Compensation Fund (PRCF) sued Sioux Equipment when the system leaked and released diesel fuel into the environment. Sioux Equipment moved for summary judgment on the ground that a ten-year statute of repose barred County’s and PRCF’s claims. The circuit court granted Sioux Equipment’s motion, concluding that Sioux Equipment’s work was “an improvement” to real property within the meaning of the statute of repose. The circuit court also concluded that the federal Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) preempted state statutes of limitations, but not the statute of repose. We affirm.

I

[¶ 2.] Sioux Equipment is in the business of installing petroleum storage and distribution equipment, including above-ground fuel storage tanks. County is a political subdivision of the State of South Dakota. County owns real property used as a highway shop. PRCF is a state agency that reimburses petroleum tank owners for certain costs of remediating the release of petroleum and petroleum-containing products into the environment.

[¶ 3.] In November 1991, County contracted with Sioux Equipment to install the fuel storage and dispensing system, which included three 10,000 gallon above-ground fuel tanks, piping, and related equipment for the County’s highway department. The scope of the work was described in Sioux Equipment’s permit application, which was submitted to the South Dakota Department of Environment and Natural Resources (DENR). The application described the work as follows:

SCOPE OF WORK
Existing Tanks and pump to be Removed and Disposed of under Separate Contract. ... Tanks shall consistent of 3 — 10,000 gal 11' X 15' New Single Wall Steel Aboveground tanks, 2 tanks shall store Class #2, Diesel Fuel, the other shall store Class # 1, Gasoline_Esti-mated cost of this project (Excluding Excavation) is $15,000.

(Emphasis in original). When Sioux Equipment arrived to begin its work, the site had already been excavated. There is no dispute that Sioux Equipment did not perform the excavation, and that a preexisting fuel system was removed before Sioux Equipment arrived.

[¶ 4.] Sioux Equipment’s installation was substantially completed by January 7, 1992, with Sioux Equipment’s submission of a Certificate of Compliance to DENR. Sioux Equipment did no further work at the site until it was notified of a 4,000 gallon fuel leak in February of 2003. As a result of this leak, County and PRCF incurred significant remediation expenses. PRCF asserts that the County and PRCF will incur additional expenses in the future.

[¶ 5.] In February of 2006, County and PRCF sued Sioux Equipment for negligence, breach of implied and express warranties, and breach of implied warranty of fitness for a particular purpose. County sought $139,985.34 in damages and prejudgment interest. PRCF sought $182,113.64 in damages for remediation costs, attorney fees and prejudgment interest.

[¶ 6.] Sioux Equipment moved for summary judgment, asserting the affirmative defense that a ten-year statute of repose had expired. County and PRCF responded arguing that the statute of repose issue involved a question of fact for the jury; i.e., whether Sioux Equipment’s work was “an improvement” to real property within the meaning of the statute. County and PRCF alternatively argued that if the statute of repose applied, it was preempted by CERCLA — a federal statute imposing liability for releasing hazardous materials into the environment.

[¶ 7.] The circuit court concluded that Sioux Equipment’s work was an improvement to property, and therefore, the claim was barred by the statute of repose. Following the most recent authority from federal court interpretations of CERCLA, the circuit court also concluded that CERCLA preempted state statutes of limitations, but not statutes of repose. County and PRCF appeal both conclusions.

II

[¶ 8.] “In reviewing a grant or denial of summary judgment ... we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law.” Behrens v. Wedmore, 2005 SD 79, ¶ 18, 698 N.W.2d 555, 565. “ ‘[T]hose resisting summary judgment [must] show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.’ ” Bordeaux v. Shannon County Sch., 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765 (citation omitted)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986) (stating that entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which party will bear the burden of proof at trial). Mere general allegations and denials that do not set forth specific facts will not prevent issuance of summary judgment. Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876.

III

[¶ 9.] SDCL 15-2A-3 is the applicable statute of repose. It provides a ten-year period after substantial completion of a project to bring an action for “an improvement” to real property:

No action to recover damages for any injury to real ... property ... arising out of any ... construction, of an improvement to real property ... may be brought against any person performing or furnishing the design, planning, supervision, inspection, and observation of construction, or construction, of such an improvement more than ten years after substantial completion of such construction. The date of substantial completion shall be determined by the date when construction is sufficiently completed!.]

SDCL 15-2A-3.

[¶ 10.] County and PRCF argue that Sioux Equipment’s installation was a mere replacement of the prior underground storage tanks, and therefore, it could not have been an improvement to real property within the meaning of the statute. This argument requires us to first determine the meaning of “an improvement” to real property, a question of law we review de novo. We must then apply that definition to determine whether Sioux Equipment’s work involved an improvement to real property. This second determination is a mixed question of law and fact because the historical facts are established, the rule of law will be established by the court, and the dispositive issue is “whether ... the rule of law as applied to the established facts is or is not [favorably satisfied].” In re Dorsey and Whitney Trust Co., LLC, 2001 SD 35, ¶ 6, 623 N.W.2d 468, 471 (citations omitted). Because the application of a legal test to the historical facts of this case requires us to consider legal concepts and “exercise judgment about the values that animate legal principles,” we review the second determination de novo. Id.

[¶ 11.] Although this Court has not defined an “improvement to real property” in the context of SDCL 15-2A-3, most courts considering the issue have adopted what has been described as a “common sense approach.” In Jamagin v. Fisher Controls Int’l, Inc., 573 N.W.2d 34 (Iowa 1997), the Iowa Supreme Court affirmed summary judgment in favor of manufacturers of LP gas regulators, concluding that the regulators, which were used in a home heating system, were an improvement to real property. The Jamagin court adopted the following definition

A permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.

Id. at 36.

[¶ 12.] In State Farm Fire and Cas. v. Aguila Inc., the Minnesota Supreme Court adopted the same definition, concluding that an underground natural gas pipeline system constituted an improvement to real property. 718 N.W.2d 879, 884 (Minn.2006). Similarly, the Supreme Court of Wisconsin applied that definition in a case questioning whether an underground oil pipeline was an improvement to real estate within the meaning of the Wisconsin statute of repose. United States Fire Ins. Co. v. E.D. Wesley Co., 105 Wis.2d 805, 313 N.W.2d 833, 835 (1982). Notably, that case also involved a petroleum storage facility. The court held that, “as a matter of law, [ ] when the pipeline was connected to the equipment located on the ... real property, that pipeline became an improvement to the ... property.” Id. The New Mexico Supreme Court adopted essentially the same definition as the Iowa, Minnesota, and Wisconsin Supreme courts. Delgadillo v. City of Socorro, 104 N.M. 476, 723 P.2d 245 (1986). In Delgadillo, the court defined an improvement as “the enhancement or augmentation of value or quality: a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.” Id. at 478, 723 P.2d at 247.

[¶ 13.] In this case, the circuit court cited some but not all of these factors, ultimately concluding that under the undisputed facts, Sioux Equipment’s work was an improvement within the meaning of SDCL 15-2A-3. The circuit court reasoned:

In this case the [County] contracted with [Sioux Equipment] to undertake a substantial project for $15,000. There is no evidence presented that the work performed by [Sioux Equipment] in any way was in the capacity of replacing an existing unit. It is also clear that the system amounted to an improvement of [County]’s existing property. Therefore, it is apparent that in the present case the work completed by [Sioux Equipment] constituted an improvement to [County’s] property as contemplated by SDCL 15-2A-3.

[¶ 14.] We essentially agree. When Sioux Equipment arrived at the site, no fuel dispensing system existed. According to the scope of the work document, whatever system had been previously on site had been removed under a separate contract. The addition of the Sioux Equipment fuel system, for which County paid $15,000, clearly enhanced the use of the property. County and PRCF concede that the addition involved the expenditure of money and labor. Finally, the fuel system added value to County’s property, as a county highway shop with a fuel dispensing system is worth more than one without such a system. See Delgadillo, 104 N.M. at 479, 723 P.2d at 248 (noting, “[a] parcel of land that has service available is more valuable than a comparable parcel without such service”).

[¶ 15.] County and PRCF, however, argue that Sioux Equipment’s installation was a mere replacement of the prior system. To the extent County and PRCF argue this as a matter of law, their argument is misplaced. Courts have rejected the suggestion that a replacement of analogous infrastructure cannot qualify as an improvement. Delgadillo involved the question whether a replacement of previously existing utility equipment constituted an improvement to real property within the meaning of that state’s similar statutes of repose. 104 N.M. at 479, 723 P.2d at 248. The work involved the relocation and extension of existing utility services (water, sewer, gas) to facilitate the construction of a new highway. The New Mexico Supreme Court stated: “Whether there was a previously existing [utility] service is unimportant, so long as the additions improved the realty[.]” Id. The court concluded that notwithstanding the previously existing utility infrastructure, “the installation of the gas lines was a permanent addition to real property, involving the expenditure of labor and money and making the property more useful and valuable,” thereby making it an improvement to real property. Id. The court stated: “[W]e find no logical basis for concluding that improvements to utility systems, such as new pipe lines, cannot constitute physical improvements to real property.” Id. See also Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (N.J.1972) (finding improvement for the repavement of a road); Yakima Fruit and Cold Storage Co. v. Cent. Heating & Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972) (finding improvement that involved reinstallation of pipe, coils, hangers, and rods for a previously existing refrigeration system); Pinneo v. Stevens Pass, Inc., 14 Wash.App. 848, 545 P.2d 1207 (1976) (finding improvement where company replaced certain portions of an already existing ski lift). Thus, replacements are not, as a matter of law, disqualified from being considered an improvement to real property. Under the “common sense” test previously discussed, the question is whether the addition is designed to make the property more useful or valuable as distinguished from ordinary repairs or replacements. See supra ¶¶ 11-12.

[¶ 16.] County and PRCF argue, however, that a material issue of disputed fact exists whether this work was an ordinary repair or replacement. They specifically argue that the circuit court erred in granting summary judgment on the ground that County and PRCF presented no evidence that the work performed by Sioux Equipment was more than an ordinary repair or replacement. They contend that: “Sioux Equipment retained] the burden to establish that no genuine issue of material fact exists” on this issue. We disagree.

[¶ 17.] Although defendants bear the initial burden of showing entitlement to affirmative defenses in summary judgment proceedings, the burden of identifying facts in avoidance of the statute of repose shifted to County and PRCF in this case. A statute of repose is an affirmative defense, and the burden of proof to establish an affirmative defense is on the party who seeks to rely on it. Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d 295, 297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d 863, 865 (1959)). The burden of production, however, shifts in summary judgment proceedings. For the sole purpose of analyzing this procedural aspect of burden shifting in summary judgment proceedings, we consider the statute of repose in the same manner as we would consider a statute of limitations. Therefore, where a defendant, by motion for summary judgment, asserts this type of affirmative defense that bars an action “and presumptively establishes the defense by showing the case was instituted beyond the statutory period, the burden then shifts to the plaintiff to establish the existence of material facts in avoidance of the statute ... [.] ” Conway v. Conway, 487 N.W.2d 21, 23 (S.D.1992). See also Huron Center, Inc. v. Henry Carlson, Co., 2002 SD 103, ¶ 11 n. 2, 650 N.W.2d 544, 548 n. 2 (providing: “Only when Defendants have presumptively established their defense by showing the action was brought beyond the statutory period ... does the burden shift to [Plaintiff] to demonstrate material facts in avoidance of the defense.”) (citing Wissink v. Van De Stroet, 1999 SD 92, ¶ 9, 598 N.W.2d 218, 215).

[¶ 18.] In this case, Sioux Equipment met its initial burden of presumptively showing that the action was brought beyond the statutory period. In support of its motion for summary judgment, Sioux Equipment submitted Dale Peltier’s affidavit. Peltier was an employee of Sioux Equipment who relied on the “Scope of Work” document and established that more than ten years had expired since substantial completion of work. His affidavit farther established that any equipment that existed on the site prior to Sioux Equipment’s work was removed by a third party before Sioux Equipment arrived. Peltier finally stated that Sioux Equipment’s work “was not maintenance or a mere replacement of something that already existed. Our work was to install a completely new fuel storage and dispensing facility.” This was sufficient to presumptively show entitlement to the statute of repose as a defense.

[¶ 19.] Because Sioux Equipment made its presumptive showing that the suit was not timely and that its work was not a mere ordinary repair or replacement, the burden shifted to County and PRCF to set forth specific facts refuting or disputing Sioux Equipment’s showing. In response, however, County and PRCF only submitted Peltier’s “Scope of Work” document that provided existing tanks were to be removed under a separate contract. County and PRCF did not introduce any facts suggesting that Sioux Equipment’s work, even though it involved installation of a new fuel storage and delivery system, was a mere ordinary repair or replacement that did not also constitute an improvement to the real property. Instead, County and PRCF only argued that point. County and PRCF’s argument was insufficient to prevent summary judgment.

[¶ 20.] County’s and PRCF’s argument was insufficient because SDCL 15 — 6—56(e) requires a response setting forth specific facts. “When a motion for summary judgment is made and supported as provided in 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in 15-6-56, must set forth specific facts showing that there is a genuine issue for trial.” SDCL 15-5-56(e) (emphasis added). In Bordeaux, this Court stressed:

We require “those resisting summary judgment [to] show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.” In fact, “SDCL 15-6-56(e) requires the opposing party to be diligent in resisting a motion for summary judgment, and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.”

2005 SD 117, ¶ 14, 707 N.W.2d at 127 (citations omitted). County and PRCF did not, therefore, meet their responsive burden of presenting specific facts precluding summary judgment.

IV

[¶21.] In the alternative, County and PRCF argue that CERCLA preempts the statute of repose and imposes a discovery statute of limitations under which they may bring a cause of action. See 42 U.S.C. § 9658. Commonly known as “Su-perfand,” CERCLA was enacted by Congress in 1980. CERCLA imposes liability on persons responsible for the release of hazardous waste, and it applies to eases that are brought under state law for property damage caused by environmental contaminants that are released into the environment. 42 U.S.C. § 9658(a)(1). In such cases, CERCLA provides that, notwithstanding any contrary state “statute of limitations,” the time for bringing an action does not start to run until the plaintiff knew or reasonably should have known that the damages were caused by the hazardous substance. 42 U.S.C. §§ 9658(a)(1) and (b)(4)(A).

[¶ 22.] Applying CERCLA to the present case, County and PRCF argue that the date the statute of limitations began to run was when the fuel leak was discovered on County’s property, February 20, 2003. The circuit court disagreed, relying on the latest federal court decisions holding that the plain language of CERCLA only applies to statutes of limitations, and because a statute of repose is substantively different than a statute of limitations, CERCLA does not apply to statutes of repose.

[¶ 23.] The highest federal court to consider this issue is the Fifth Circuit Court of Appeals. See Burlington N. & Sanie Fe Ry. Co. v. Poole Chemical Co., Inc., 419 F.3d 355 (5th Cir.2005). The Fifth Circuit was presented with virtually identical facts and the same issue. In Burlington, a chemical storage tank leaked, and Burlington Northern conducted an emergency clean-up of the railroad right-of-way. The railroad then sought reimbursement from the owner of the storage tanks, and the owner brought a third-party claim against the seller of the tanks. The action was brought after the expiration of a Texas fifteen-year statute of repose, and the seller of the storage tanks moved for summary judgment based upon that statute.

[¶ 24.] The Fifth Circuit concluded that CERCLA preempts statutes of limitations, but not statutes of repose. In doing so, it pointed out the substantive difference between a statute of limitations and a statute of repose:

A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy.... A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued.

Id. at 363. Acknowledging that this difference was “substantive” and not a matter of “semantics,” and further acknowledging that Congress had failed to include statutes of repose within CERCLA’s preemptive provision, the Fifth Circuit applied the plain language of the federal statute, concluding that statutes of repose are not included within CERCLA’s preemptive language. The Burlington court explained,

[T]he reach of the plain language of § 9658 does not extend to statutes of repose like [the Texas statute]. Literally, § 9658 states that it only preempts state law when the applicable state statute of limitations “provides a commencement date which is earlier than the [federally required commencement date] — [there is] no mention of peremptory statutes or statutes of repose.” The provision defines “commencement date” as the “date specified in a statute of limitations as the beginning of the applicable limitations period.” [The Texas statute of repose,] however, is not a statute of limitations; it is a statute of repose, and the differences between statutes of limitations and statutes of repose are substantive, not merely semantic.

Id. at 362.

[¶ 25.] All recent federal district courts agree. See German v. CSX Transp. Inc., 510 F.Supp.2d 630, 633 (S.D.Ala.2007) (concluding: “As discussed in Burlington, the text of § 9658 does not mention statutes or rules of repose but instead discusses only statutes of limitations. Under the principles of statutory construction, the plain language of § 9658 should be given effect.”); McDonald v. Sun Oil Co., 423 F.Supp.2d 1114, 1127 (D.Or.2006) (concluding: “This court agrees with the analysis of the Burlington court that there is a substantive difference between a statute of limitations and a statute of repose, and that ... CERCLA extends only to statutes of limitations.”).

[¶ 26.] County and PRCF argue that notwithstanding this authority, two other courts have determined that CERCLA preempts state statutes of repose. Those federal district court and state court of appeals cases were, however, decided in 1994, well before the Fifth Circuit Court of Appeals and all subsequent federal district courts held otherwise. The later decisions have recognized that the earlier decisions like Buggsi v. Chevron U.S.A. Inc., 857 F.Supp. 1427 (D.Or.1994), were decided prior to Burlington, and did not consider the difference between a statute of repose and a statute of limitations. The more recent McDonald decision specifically noted Buggsi’,s omission, stating: “The Burlington court acknowledged that courts have sometimes failed to distinguish a statute of repose from a statute of limitations when analyzing the applicability of this section of CERCLA, and [.Burlington ] cited Buggsi and other cases. Nevertheless, the [Burlington] court noted that these types of statutes are quite different.” 423 F.Supp.2d at 1127. County and PRCF’s other opinion, Chatham Steel Corp. v. Brown, 858 F.Supp. 1130, 1150 (D.Fla. 1994), was also decided prior to Burlington and it, too, failed to distinguish between statutes of repose and statutes of limitations. Furthermore, the debate in Chat-ham Steel was limited to whether South Carolina’s statute of repose was preempted because it conflicted with CERCLA’s liability provisions. 858 F.Supp. at 1151. Under the circumstances, we do not find County and PRCF’s authorities persuasive. We find the Fifth Circuit and the more recent federal district court decisions more instructive.

[¶ 27.] County and PRCF argue that notwithstanding the federal authority on this subject, the legislative history of CERCLA requires a different result. This argument was considered in Burlington. Burlington acknowledged the apparent legislative intent behind CERCLA, but nevertheless concluded that plain language controlled over purported legislative intent. After first acknowledging Congress’s apparent intent to extend statutes of limitations for long-latent diseases caused by the release of hazardous substances, the Fifth Circuit nevertheless concluded that the plain language of the statute prevailed:

CERCLA’s legislative history indicates Congress intended for § 9658 to preempt a state statute of limitations that deprives a plaintiff who suffers a long-latency disease caused by the release of a hazardous substance of his cause of action, but not to preempt a state statute of repose like [the Texas statute],

Burlington, 419 F.3d at 364 (citations omitted). Burlington explained that unlike discovering long-latent diseases under statutes of limitations, statutes of repose are not concerned with when a party may discover an injury:

Typically, a statute of limitations for an action sounding in tort starts to run on the date of the plaintiffs legal injury. When an injury is inherently undiseoverable, however, states often use the discovery rule to toll the running of the limitations period until the plaintiff “discovers, or in exercising reasonable diligence should have discovered, facts that indicate he has been injured.” In contrast, awareness of injury is not a factor in determining when the time period of a statute of repose starts to run. Unlike a statute of limitations, “a statute of repose creates a substantive right to be free from liability after a legislatively determined period.” In other words, a statute of repose establishes a “right not to be sued,” rather than a “right to sue.” Thus, with the expiration of the period of repose, the putative cause of action evanesces; life cannot thereafter be breathed back into it. In Texas, such statutes “represent a response by the [Texas] legislature to the inadequacy of traditional statutes of limitations and are specifically designed to protect [manufacturers] ... from protracted and extended vulnerability to lawsuits.”

Id. at 363-64.

[¶ 28.] In addition to this substantive distinction, deferring to plain language over purported legislative purpose and intent is a predominant theme in statutory interpretation in federal and state courts. Burlington noted:

In cases involving statutory construction, a court begins with the plain language of the statute. A court assumes that the legislative purpose of a statute is “ ‘expressed by the ordinary meaning of the words used.’ ” A court considers the language used in a statute as conclusive unless Congress has clearly expressed a contrary intent.... Here, the reach of the plain language of § 9658 does not extend to statutes of repose[.]

Id. at 362 (citations omitted). We follow similar rules of statutory construction:

[W]e adhere to two primary rules of statutory construction. The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.

Goetz v. State, 2001 SD 138, ¶ 15, 636 N.W.2d 675, 681. Therefore, “[t]he intent of the statute must be determined from what the legislature said, rather than what this [C]ourt thinks the legislature should have said, and this determination must be confined to the plain, ordinary meaning of the language used by the legislature.” Hagemann ex rel. Estate of Hagemann v. NJS Engg., Inc., 2001 SD 102, 5, 632 N.W.2d 840, 843 (citing M.B. v. Konenkamp, 523 N.W.2d 94, 97 (S.D.1994)). See also Faircloth v. Raven Indus., Inc., 2000 SD 158, 6, 620 N.W.2d 198, 201 (providing: “Intent is ordinarily ascertained by examining the express language of the statute. We therefore defer to the text where possible.”); Delano v. Petteys, 520 N.W.2d 606, 608 (S.D.1994) (declaring: “In applying legislative enactments, we must accept them as written. The legislative intent is determined from what the legislature said, rather than from what we or others think it should have said.”). In this case, the plain language of CERCLA only preempts state law when the applicable “state statute of limitations” provides a commencement date that is earlier than the federally required commencement date. See 42 U.S.C. §§ 9658(a)(1) and (b)(4)(A). Congress failed to include substantively different statutes of repose within this preemptive rule. Accordingly, the plain text controls.

[¶29.] For the foregoing reasons, we affirm the circuit court’s conclusion that Sioux Equipment’s work was an improvement to real property and County’s and PRCF’s claims were barred by the statute of repose.

[¶ 30.] Affirmed.

[¶ 31.] GILBERTSON, Chief Justice, and KONENKAMP, and MEIERHENRY, Justices, concur.

[¶ 32.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting on Issue 2).

[¶ 33.] I respectfully dissent on Issue 2 as CERCLA preempts SDCL 15-2A-3, the statute of repose. Generally, remedial statutes are construed liberally in favor of a remedy or in favor of those entitled to the benefit of the statute. See Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431, 59 S.Ct. 262, 266, 83 L.Ed. 265 (1939); see also Remedial Statutes, generally, 73 Am.Jur.2d Statutes § 185 (updated March 2008). We should avoid the technical, strict construction the majority opinion applies, in favor of a liberal construction to promote justice and the intention of Congress.

[¶ 34.] CERCLA was enacted to “impose[ ] liability on persons responsible for the release of hazardous waste.... ” Supra ¶ 21. Moreover, CERCLA preempts “the applicable limitations period for such action (as specified in the State statute of limitations or under common law)” and replaces the limitation period with a “federally required commencement date.” 42 U.S.C. § 9658(a)(1). In this case, the statute of repose is a limitation on the action and should be replaced with the federal commencement date. If Congress amended CERCLA because “certain State statutes deprive plaintiffs of their day in court,” see HR Conf Rep No 99-962 at 261, reprinted in 1986 U.S.C.C.A.N. 3276, 3354, then a statute of repose should be interpreted to be “the applicable limitations period for [the] action.” See 42 U.S.C. § 9658(a)(1). If the statute was properly interpreted liberally, then Congress’ intent of giving “plaintiffs ... their day in court” would be fulfilled.

[¶ 35.] The majority opinion’s strict interpretation of CERCLA thwarts Congressional intent. We should use common sense and hold that CERCLA preempts the statute of repose. Because the majority opinion reaches a decision contrary to the purpose of CERCLA, I dissent.

      . There was an occasion when the Clark Highway Department called Sioux Equipment to the site in May of 1997, complaining that a dispensing pump was not running properly. Sioux Equipment inspected the pump and determined that the storage tank was low of fuel and the pump would run properly when the tank was filled. This visit is not relevant in this litigation.

      . Sioux Equipment also brought third-party claims against manufacturers Eaton Corporation and Snap-Tite for breach of warranty, product liability, and indemnity. Both third-party defendants cross-claimed each other.

      . In such cases involving mixed questions of law and fact:
      Where the analysis turns on the fact finder’s " ‘experience with the mainsprings of human conduct,' ” it is essentially a factual question to which we apply the clearly erroneous standard. If, however, "the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles ..we apply the de novo standard.

        In re Dorsey, 2001 SD 35, ¶ 6, 623 N.W.2d at 471 (citations omitted).

      . In Van Den Hul v. Baltic Farmers Elev. Co., 716 F.2d 504 (8th Cir.1983), the Eighth Circuit Court of Appeals determined that installation of an underground pipe to carry LP gas from a tank on one side of the street to a grain dryer on the other side of the street was an improvement to real property under the predecessor to SDCL 15-2A-3 (SDCL 15-2-9) (repealed 1985). In reaching its conclusion, the Van Den Hul court predicted that South Dakota courts would adopt a common sense definition of the word "improvement.” Id. at 508. It applied an essentially identical definition as that adopted by the Iowa, Minnesota, Wisconsin and New Mexico Supreme Courts, examining: "whether the modification or addition enhances the use of the property, involves the expenditure of labor or money, is more than mere repair or replacement, adds to the value of the property, and is permanent in nature.” Id.

      . CERCLA provides, in pertinent part:
      (a)(1) In the case of any action brought under State law for ... property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.
      (b)(4)(A) [T]he term "federally required commencement date” means the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.
      42 U.S.C. 9658(a)(1) and (b)(4)(A).

      . This Court also recognizes this substantive difference. Because a statute of repose begins to run from a date that is unrelated to the date of an injury:
      [The statute of repose] is not designed to allow a reasonable time for the filing of an action once it arises. Therefore, a statute of repose may bar the filing of a lawsuit even though the cause of action did not even arise until after it was barred and even though the injured person was diligent in seeking a judicial remedy.

        Peterson, ex rel. Peterson v. Burns, 2001 SD 126, ¶ 41, 635 N.W.2d 556, 570.