author: MEIERHENRY, Justice. SABERS, Justice

text:
    2004 SD 105
    VIVIAN SCOTT TRUST, Jean Wasserman, Trustee, Plaintiff and Appellee, v. Lynn R. PARKER, Defendant and Appellant.
    No. 23020.
    Supreme Court of South Dakota.
    Considered on Briefs June 1, 2004.
    Decided Sept. 15, 2004.

      Daniel J. Nichols of Nichols & Rabuck, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Leo T. Flynn, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] This case is an appeal from the trial court’s determination of a prescriptive easement. The action was brought by Vivian Scott Trust (Trust) against adjacent landowner Lynn Parker (Parker). Parker’s property is business commercial property; Trust’s property is residential rental property. Trust’s renters drive across Parker’s property to gain access to the parking at the rear of the rental property. Parker appeals the prescriptive easement determination. We affirm.

FACTS

[¶ 2.] Parker rented her property from 1989 to 1994 and purchased it in 1994. Parker’s property is located at the corner of 11th Street and Prairie Avenue in Sioux Falls, South Dakota. On 11th Street immediately adjacent to Parker’s property, Trust owns a century old four-plex with a garage and a parking area behind the property. On the Parker property are five businesses, including Parker’s own insurance business, and a parking lot with 16 marked parking spaces. Parker’s parking lot has entrances from both 11th Street and Prairie Avenue. Parker’s parking lot abuts Trust’s rear parking area. Trust’s renters have historically accessed the parking area by driving across Parker’s parking lot from either Prairie Avenue or 11th Street. Between two of the parking spaces, Parker kept an area of approximately 10 feet for Trust’s renters to access the parking area behind Trust’s property. The reserved area was marked with an “X.”

[¶ 3.] In anticipation of selling the rental property, Trust attempted to formalize the access easement with Parker. Trust’s attorney wrote a letter to Parker asking her to grant a 22 foot access easement to Trust. Parker declined the request in writing. Subsequently, Trust brought this declaratory action.

ISSUES

[¶ 4.] Parker raises the following issues on appeal:

I. Whether the trial court erred in finding that Trust had a prescriptive easement or erred in its determination of the extent of the prescriptive easement.

II. Whether the trial court erred by admitting into evidence a letter written by Parker to Trust’s attorney as part of settlement negotiations.

DECISION

Prescriptive Easement

[¶ 5.] The trial court concluded Trust had a prescriptive easement for ingress and egress over Parker’s property and enjoined Parker from blocking 22 feet of access from her parking lot to Trust’s parking area. Parker claims this conclusion and the findings on which it is based are clearly erroneous.

[¶ 6.] The burden is on the claimant to prove an easement exists. As was recently stated in Thompson v. E.I.G. Palace Mall, LLC, 2003 SD 12, 657 N.W.2d 300:

a prescriptive easement occurs from a use of another’s land adverse to the owner of that land or the owners interest in the land against which a servitude is sought. See Restatement of Property (Third) § 2.16, Servitudes Created By Prescription; cf. Blacks Law Dictionary 1183 (6th ed. 1991). To prove a prescriptive easement, one must show an “open, continued, and unmolested use of the land in the possession of another for the statutory period ... of 20 years.” Steiner v. County of Marshall, 1997 SD 109, ¶ 18, 568 N.W.2d 627, 631; Wolff v. South Dakota Game, Fish Parks Dept., 1996 SD 28, 28 n. 5, 544 N.W.2d 531, 536 n. 5; Travis v. Madden, 493 N.W.2d 717, 720 (S.D.1992).

Id. at ¶ 6. Additionally, “a party seeking the easement must use the property in a manner that is hostile or adverse to the owner.” Id. at ¶ 7. Therefore, “a use that is merely permissive and not adverse to the interests of the property owner will not become a prescriptive easement.” Id. In asserting a prescriptive right, a prima facie case is established by (1) showing an open and continuous use of another’s land (2) with the owner’s knowledge. Id. at ¶ 8. Such showing creates a presumption the “use is adverse and under a claim of right.” Id. The presumption may be overcome by proof that the use was permissive or not under a claim of right. Id.

7.] The trial court found Trust had accessed its rear parking area “by driving across [Parker’s] property continuously for over forty (40) years.” Trial testimony supports this finding. Parker offered no evidence contradicting this finding. As to the owner’s knowledge, Parker admitted knowing Trust used her property to access its rear parking. Therefore, Trust made a prima facie showing of a prescriptive right, creating a presumption that the use was adverse or under a claim of right.

[¶ 8.] The burden then shifted to Parker to show the use was permissive or not under a claim of right. Hofmeister v. Sparks, 2003 SD 35, ¶ 17, 660 N.W.2d 637, 642 (explaining that a “party asserting the defense of permissive use to prevent the creation of a prescriptive right ... bears the burden of proof to show that the use was only permissive”). The trial court found “Plaintiff has never sought nor obtained permission to use the Defendant’s property for ingress and egress, from Defendant or her predecessors in interest.” No evidence was presented by either party indicating the present or previous property owners had obtained permission to use the Parker property. Parker had the burden to show the use was only permissive; the trial court did not err in finding Parker failed to meet this burden. Therefore, the trial court’s conclusion that Trust has a prescriptive easement for ingress and egress is supported by the evidence.

Extent of Easement and Injunctive Relief

[¶ 9.] Parker also argues the trial court was clearly erroneous in finding the prescriptive easement was 22 feet wide. This argument is misplaced. Although the trial court’s findings refer to a 22 foot easement, the judgment does not. The judgment only declares the existence of a prescriptive easement and is silent as to the nature or width of the easement. The judgment does two things: first, it grants a prescriptive easement and second, it enjoins Parker from blocking the rear entrance to Trust’s rear parking area. The judgment states:

NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

That an easement by prescription exists for the benefit of Plaintiffs property legally described as follows:
The West 50 feet of Lots 7, 8 and 9 in Block 29 of Pettigrew’s Addition to the City of Sioux Falls, Minnehaha County, South Dakota, also known as 816 West 11th Street, Sioux Palls, South Dakota

Across Defendant’s property legally described as follows:

The East 100 feet of Lots 7, 8 and 9 in Block 29 of Pettigrew’s Addition to the City of Sioux Falls, Minnehaha County, South Dakota, also known as 227 North Prairie Avenue, Sioux Falls, South Dakota. Defendant, her employees, customers and invitees are hereby enjoined from blocking the 22 foot entrance to rear parking area of Plaintiffs property by parking their vehicles in the entrance or obstructing the easement in any other manner.

[¶ 10.] Under South Dakota law, a judgment is “the final determination of the rights of the parties in an action or proceeding.” SDCL 15 — 6—54(a). The judgment declares the existence of a prescriptive easement. It also includes an injunction prohibiting Parker “from blocking the 22 foot entrance to [Trust’s] rear parking area.” We review injunctive relief under an abuse of discretion standard and will not reverse “unless we find an abuse of discretion.” Ladson v. BPM Corp., 2004 SD 74, ¶ 15, 681 N.W.2d 863, 867 (citing Hendrickson v. Wagners, Inc., 1999 SD 74, ¶ 14, 598 N.W.2d 507, 510). “In this context, abuse of discretion ‘can simply be an error of law or it might denote a discretion exercised to an unjustified purpose, against reason and evidence’ ”. Id. Trust presented testimony of the need for a 22 foot entrance to enter and exit its rear parking area. The witnesses pointed out the difficulty of being limited only to the 10 foot opening when snow accumulated in the winter. Additionally, the trial court had before it several aerial photos depicting the two properties and the width of the opening to Trust’s parking area. Based upon the evidence, we are unable to say that the trial court abused its discretion in granting the injunction. The judgment is affirmed.

Settlement Negotiation Evidence

[¶ 11.] Before this lawsuit was commenced, Trust wrote to Parker requesting Parker to give Trust a formal easement of 22 feet. Parker’s written reply was entered into evidence. The contents of the letter are as follows:

I have read over your proposal and then did some research of my own concerning this property.
I contacted the Planning & Zoning offices in Sioux Falls. According to code, I have the minimum amount of parking places in my lot that is required. I cannot give up an additional 12' of parking space for the sole benefit of your client.
Therefore, I cannot sign your proposal which only benefits the Scotts and puts me in violation of city code, prohibits expansion of my own business and limits the type of current or future tenants of my building.
I will continue to honor the prescriptive easement, which is the 10' wide space, marked with an “X” in the parking lot. This past, verbal agreement, is vague at best. What parties made the agreement? The landowners or the tenants? When did this happen? When did the Scott family acquire 816 W 11th? Was it before 1919, or after 1939? Did anyone witness the verbal agreement?

Parker resisted the entry of this letter into evidence. She claimed it was part of settlement negotiation and not admissible under SDCL 19-12-10 (Rule 408). The trial court ruled that if Parker testified that a prescriptive easement did not exist, the letter would come in for impeachment purposes as a prior inconsistent statement. The letter was admitted as part of Parker’s cross-examination. Parker argues admission of the letter was prejudicial error because the trial court based its decision, in part, on Parker’s acknowledgment of a prescriptive easement in the letter. Trust fails to answer or address this issue in its brief.

[¶ 12.] Based on the trial court’s memorandum decision and findings of facts, it appears the trial court used the information in the letter as it related to Parker’s knowledge of Trust’s adverse use of her property. The trial court included in its findings that Parker was aware the easement existed prior to purchasing the property. The trial court found, “In 1994, Defendant purchased her property and she has since acknowledged the easement in a letter to Attorney Nichols, dated March 13, 2002.” Parker’s knowledge was one of the elements Trust was required to prove in order to establish a prescriptive easement.

[¶ 13.] It is a rule that documents written in an attempt to settle a dispute are not admissible to prove the validity of the issue in dispute. SDCL 19-12-10. SDCL 19-12-10 provides:

Evidence of:
(1) Furnishing or offering or promising to furnish; or
(2) Accepting or offering or promising to accept,
a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This section does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This section also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution.

Id. (emphasis added). One basis for this rule is the public policy of encouraging settlement. Roso v. Henning, 1997 SD 82, ¶ 13, n. 3, 566 N.W.2d 136, 142 n. 3 (citing 2 J. Strong, McCormick on Evidence § 194 (4th ed. 1992)). Offers of compromise to prove liability would discourage settlement. Id. Here, the letter was offered to show Parker had previously admitted the existence of an easement. Clearly, this is the kind of evidence the rule seeks to protect. Although the statute provides that negotiation material may be used for another purpose, it may not be used to impeach or to prove the disputed issue. Discussing Federal Rule of Evidence 408, the federal counterpart of SDCL 19-12-10, McCormick states:

Use of statements made in compromise negotiations to impeach the testimony of a party ... is fraught with danger of misuse of the statements to prove liability, threatens frank interchange of information during negotiations, and generally should not be permitted.

2 J.W. Strong, McCormick on Evidence § 266 (5th ed. 1999). Admitting the letter to show a prior inconsistent statement or to prove a disputed issue undermines the policy reason behind the rule of encouraging settlement through open negotiation. See EEOC v. Gear Petroleum, Inc., 948 F.2d 1542, 1545-46 (10th Cir.1991). Admitting the letter into evidence was error.

[¶ 14.] Parker claims the error is prejudicial warranting reversal. “Prejudicial error is that which, in all probability, has produced some effect upon the final result and to have affected the rights of the party assigning that error.” State v. Eagle Hawk, 411 N.W.2d 120, 126 (S.D.1987); see also State v. Bittner, 359 N.W.2d 121, 125; State v. Dace, 333 N.W.2d 812, 816 (S.D.1983); Matter of M.B., 288 N.W.2d 773, 776 (S.D.1980); Larson v. Locken, 262 N.W.2d 752, 757 (S.D.1978). Where inadmissible evidence admitted at trial is cumulative only and other admissible evidence supports the re-suit, the cumulative evidence, though inadmissible, is nonprejudicial. Matter of N.J.W., 273 N.W.2d 134, 138 (S.D.1978); Matter of D.T., 89 S.D. 590, 599, 237 N.W.2d 166, 171 (1975); Alberts v. Mutual Service Casualty Insurance Co., 80 S.D. 303, 315,123 N.W.2d 96, 103 (1963).

[¶ 15.] A review of the letter evidence indicates it was cumulative. Additionally, the issue for which it was considered was not disputed by Parker. The trial court refers to Parker’s letter of negotiation as it relates to Parker’s knowledge of Trust’s use of her property for ingress and egress. Parker did not dispute she had knowledge. In fact, Parker’s proposed findings include a finding that admits Trust “had been using [Parker’s] parking lot, open to the public, as a driveway onto its property.” Since Parker’s knowledge was not in dispute in this case, the letter was cumulative and nonprejudicial. Significant also is that this was a court trial. We have previously stated that “[w]hen an action is tried to the court, the presumption is that improperly admitted testimony is disregarded. In a trial to the court in which ‘admissible evidence supports the findings, [additional] evidence, though inadmissible, is nonprejudicial.’ ” Matter of R.S.S., 474 N.W.2d 743, 750 (S.D.1991) (citing Achtien v. City of Deadwood, 408 N.W.2d 756, 758 (S.D. 1987)). Although admitting the letter was error, under the facts of this case, the error was harmless.

[¶ 16.] Parker raised other issues that will not be addressed because they were not preserved for appeal.

[¶ 17.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 18.] SABERS, Justice, concurs with a writing.

SABERS, Justice

(concurring).

[¶ 19.] I concur.

[¶ 20.] I agree with the determination of an easement for ingress and egress of an undetermined width. I write specially to make clear such easement is limited to one vehicle at a time.

[¶ 21.] In my view, the position of the Scott Trust could only be sustained if there was evidence that Scott and its predecessors drove three vehicles side by side in and out at least annually over the required period. There is no such evidence and such evidence is required before obtaining a 22' wide easement on someone else’s property. In fact, there is no evidence that on even one occasion two vehicles entered or exited simultaneously.

      . Trust’s letter is not part of the record.

      . Trust’s pleading requested an easement by necessity. In answers to interrogatories, Trust also referenced an easement by implication. On the day of trial, Trust changed its claim to an easement by prescription. Although Parker objected to the last minute change of the claim, the court did not rule on the objection and the trial proceeded. Without a ruling by the court, this objection was not preserved for appeal. Jameson v. Jameson, 1999 SD 129, ¶ 25, 600 N.W.2d 577, 583.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    Mwati P. McKENZIE, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C3-03-321.
    Supreme Court of Minnesota.
    Oct. 21, 2004.

      Mwati P. Mckenzie, Bayport, MN, Pro Se.
    Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

In October 1993, Mwati P. Mckenzie was convicted of first-degree murder for his role in the shooting death of Minneapolis Police Officer Jerome Haaf. In State v. McKenzie, we affirmed the conviction on direct appeal and the underlying facts of the case were set forth in that decision. 532 N.W.2d 210, 213-17 (Minn.1995). In 1997 and 1999, Mckenzie petitioned for postconviction relief. The 1997 petition was denied and on appeal we affirmed. McKenzie v. State, 583 N.W.2d 744 (Minn. 1998). The 1999 petition was denied and no appeal was taken.

In August 2002, Mckenzie filed his third petition for postconviction relief wherein he asserted that the trial court improperly handled two jury notes sent to the judge during deliberations. Mckenzie claimed that this violated his right to be present at every stage of trial. The petition was denied by the postconviction court without an evidentiary hearing. On appeal, we remanded to the postconviction court with instructions to hold an evidentiary hearing with respect to how the trial court handled ■ the notes in question, as well as when Mckenzie and/or his counsel first knew or should have known about the issues raised by the handling of those notes. Mckenzie v. State, 670 N.W.2d 582 (Minn.2003).

On remand, the postconviction court heard testimony from the two attorneys who represented Mckenzie at trial, the prosecutor who represented the state, and the trial court judge who presided over Mckenzie’s trial. The postconviction court also accepted into evidence portions of the trial court judge’s log book from Mcken-zie’s trial and a July 25, 2002, letter from Mckenzie’s appellate counsel responding to an inquiry from Mckenzie about the notes.

In this appeal, Mckenzie contends that the postconviction court committed error when it denied him a new trial or a reduced sentence. We conclude that Mcken-zie’s claim is barred by our holding in. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). We further conclude that, even if Knaffla did not apply to Mckenzie’s claims, the postconviction court did not abuse its discretion when it denied Mckenzie’s petition.

Evidence taken at the postconviction hearing can be summarized as follows. Mckenzie’s trial court judge testified that he kept a trial log book in which he made notes of events that occurred during Mckenzie’s trial. That log book and the trial court record indicate that there were four notes sent from the jury to the judge during the course of deliberations. The first note, received on October 20, 1993, at 2:00 p.m., requested individual copies of the jury instructions for each juror. The log book indicates that the trial judge-“complied and notified counsel.” The second note was received on October 20,1993, at 2:25 p.m. It reads, “Judge Lynn, we would like some clarification on some of the by laws if possible — pretaing [sic] to first degree murder charge — Aiding & Abeting [sic] Forman Juror # 8.” The log book indicates that the trial court judge contacted Mckenzie’s lead defense attorney and the prosecutor about that note; the log book reads “phoned McGlennen [defense attorney] he wants me to just to say [sic] they have the law — phoned— Streitz [prosecutor] — ok.” The entry continues with the notation, “2:40 — Answer: you have the instructions on the issue.” The trial court judge testified that after talking with counsel for the defense and the state they agreed with him that the response should be that the jury already had instructions on the issue and that no further instruction would be provided. In response to a question as to how the answer was communicated to the jury, the trial court judge testified, ‘Well, I know it was not face to face.” The third note, received October 21, 1993, at 9:15 a.m., reads, “Judge Lynn, Would it be possible to get the original police statements of Loverine Harris, Richard * * * and Olivia Gregory? The Jury Forman # 8.” The trial court judge testified that, as indicated in his log book, he spoke with counsel for both parties and the answer was to give no additional evidence. The fourth note, received October 21, 1993, at 1:55 p.m., requested information regarding premeditated murder and was discussed in open court with Mckenzie present. The first and fourth notes are not at issue in this case.

The trial court record reveals that each of the notes is date-stamped as having been filed with the district court administrator on October 26, 1993. The record also reveals that Mckenzie’s trial counsel referred to one of the notes in a November 26, 1993, motion for a new trial and that in the July 25, 2002, letter in response to the inquiry from Mckenzie, Mckenzie’s appellate counsel indicated that he was likely aware of the notes at the time of direct appeal.

In its findings of fact, the posteonviction court found that Mckenzie’s trial court judge consulted with Mckenzie’s trial counsel, as well as the prosecutor, before responding to the questions raised in the jury’s notes. The posteonviction court reached this conclusion based on the testimony presented at the hearing, the entries from the trial court judge’s log book introduced at the hearing, and defense counsel’s November 26, 1993, new trial motion. The posteonviction court further found that there were no new jury instructions given and that the responses did not favor either the prosecution or the defense. Finally, the posteonviction court found that Mckenzie was not present when Judge Lynn communicated the agreed-upon responses to the jury.

The posteonviction court concluded that Mckenzie was not entitled to a new trial based on the trial court’s handling of the notes because, to the extent that any error was committed in responding to the notes “without either counsel’s or Mckenzie’s presence in court, such error would be harmless, since responses given to the notes did not result in any information being given to the jury.” The posteonviction court further concluded that Mcken-zie’s counsel knew about the jury’s questions contained in the notes at the latest on the date the notes were sent to the trial court judge and that Mckenzie should have known about the notes no later than November 26, 1993, the date on which the new trial motion was made.

“A petitioner seeking posteonviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case.” State v. Rainer, 502 N.W.2d 784, 787 (Minn.1993). Our review of posteon-viction proceedings is limited to whether there is sufficient evidence in the record to sustain the posteonviction court’s findings. Id. Absent an abuse of discretion, the post-conviction court’s decision will not be disturbed. Id.

Once direct appeal has been taken, “all matters raised therein, and all claims known but not raised will not be considered upon a subsequent petition for posteonviction relief.” Knaffla, 309 Minn, at 252, 243 N.W.2d at 741. This includes all claims that the appellant should have known of at the time of appeal. King v. State, 649 N.W.2d 149, 156 (Minn.2002). There are two exceptions to the Knaffla rule. One exception applies to any claim that is “so novel that its legal basis was not reasonably available at the time of the direct appeal.” Greer v. State, 673 N.W.2d 151, 155 (Minn.2004). The other applies when fairness would require a review of the claim in the interest of justice and there was no deliberate or inexcusable reason for the failure to raise the issue on direct appeal. Id.

Having carefully reviewed the record, we are satisfied that there is sufficient evidence in the record to support the post-conviction court’s conclusion of law that “Mckenzie’s counsel knew of the [jury] ■ questions on the date they were made. Mckenzie himself should have known no later than the date of bringing the motion for a new trial [November 26, 1993].” Thus, we conclude that Mckenzie and his counsel either knew or should have known of the issues raised by the notes at the time Of his direct appeal. That conclusion is buttressed by the evidence that the jury notes were filed with the district court administrator on October 26, 1993; by Mckenzie’s appellate counsel’s letter indicating that “[since] my practice is to review that record completely, if they were in the district court file I would have reviewed the notes”; and by the absence of anything suggesting that the notes have not been part of the record since filed. Therefore, we can- only conclude that Mckenzie’s claims with respect to the jury notes are barred under Knaffla.

Notwithstanding our conclusion that Mckenzie’s claims are barred under Knaffla, we are also satisfied that the post-conviction court did not abuse its discretion in denying Mckenzie’s postconviction petition on the merits. It is clear from the record that the trial court erred when it responded to the jury’s October 20, 1993, 2:25 p.m., and October 21, 1993, 9:15 a.m., notes without requiring Mckenzie’s presence or obtaining his waiver. State v. Sessions, 621 N.W.2d 751, 755-57 (Minn. 2001). However, it is well settled that “[e]ven if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless.” Id. at 756. To determine whether an error was harmless, “we consider the strength of the evidence and substance of the judge’s response.” Id. (internal citation omitted).

In this case, before the trial court judge responded to the notes, he conferred with Mckenzie’s defense counsel and then responded consistent with defense counsel’s input. Further, our review of the record indicates that the responses given were appropriate for the questions asked by the jury. Moreover, there was no new information given to the jury and the responses were neutral in that they did not favor either the prosecution or the defense. Thus, we conclude that the trial court’s error in responding to the notes without Mqkenzie being present or obtaining his waiver of the right to be present was harmless beyond a reasonable doubt. In that the error was harmless beyond a reasonable doubt, we also conclude that Mckenzie failed to meet his burden of establishing, by a preponderance of the evidence, facts that warrant a reopening of the case. See Rainer, 502 N.W.2d at 787.

Affirmed.

ANDERSON, G. BARRY, J„ not having been a member of the court at the time of submission, took no part in the consideration or decision of this case.

      . The statements of Loverine Harris, Richard * * * and Olivia Gregory had not been admitted into evidence at trial.

      . Neither exception applies in this case. There is nothing novel about Mckenzie's claim, nor is there anything in the record to suggest that the interest of justice requires review of the claim.


author: GILBERTSON, Chief Justice.

text:
    2004 SD 106
    Stacey & Marilyn TITUS, Plaintiffs and Appellees, v. Sandra CHAPMAN, Defendant and Appellant.
    No. 23116.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 23, 2004.
    Decided Sept. 22, 2004.

      Courtney R. Clayborne of Johnson Eies-land Law Firm, Rapid City, South Dakota, Attorneys for plaintiffs and appellees.
    James W. Olson of Wilson, Olson & Nash, Rapid City, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Stacey and Marilyn Titus filed suit against Sandra Chapman to determine the boundary between their adjoining lots located in Pennington County, South Dakota. Both parties agreed on the proper legal boundary line, but differed as to its location based on competing surveys.. Following a hearing on opposing motions for summary judgment, the trial court granted Tituses’ motion. The trial court also held Chapman did not establish a claim of adverse possession. The trial court did not grant Chapman’s motion to join necessary parties. Chapman appeals all three issues. We affirm.

FACTS AND PROCEDURE

[¶ 2.] The land in dispute is located in rural Pennington County, South Dakota. In 2001, Tituses purchased a parcel of, land commonly known as Lot A, located in the Northwest Quarter of the Southeast Quarter, Section 12, Township One North, Range Six East of the Black Hills Meridian. The land was unoccupied at the time the law suit was filed.

[¶3.] On July 5, 1989, Chapman purchased the property commonly known as Lot 2, located in .the Northeast Quarter of the Southeast Quarter, Section 12, Township One' North, Range Six East of the Black Hills Meridian. Throughout her ownership of the land, Chapman has maintained a mobile home on the property. Prior to Chapman’s ownership of Lot 2, the property was unoccupied, unenclosed by a substantial fence or other natural barrier, and uncultivated.

[¶ 4.] The two lots have a common property line both parties agreed is the l/16th section line of Section 12. Surveys of the area indicated the Chapman lot’s western edge terminated at the l/16th section line, while the Tituses lot’s eastern edge terminated at the l/16th section line. However, competing surveys indicated two different locations for the l/16th section line. The dispute centered on a 34 foot strip of land claimed by both parties, and upon which Chapman had located a mobile home, cistern and portions of an old fence that never substantially enclosed the property.

[¶ 5.] The U.S. Forest Service originally surveyed the area in question in April of 1879 and August of 1886. The survey resulted in. a plat of Section 12, Township One North, Range Six East of the Black Hills Meridian. The general practice at the time was to locate artificial or natural monuments to indicate section corners and quarter section corners.

[¶ 6.] Section 12 was next surveyed in 1946 by Stein Bangs for the purpose of subdividing the Northwest Quarter of the Southeast Quarter of Section 12, together ■with other property. The Bangs survey platted Lot A of the Northwest Quarter of Southeast Quarter of Section 12 with an eastern boundary collinear with the l/16th line of Section 12. The eastern boundary of Lot A was not monumented by Bangs. However, the Bangs survey indicated an artificial monument, an iron pin, on the southern portion of the l/16th line of Section 12 at the southern quarter corner between the Southwest Quarter of the Southeast Quarter and the Southeast Quarter of the Southeast Quarter. The record is unclear if Bangs set the iron pin, or merely located it when conducting his survey.

[¶ 7.] A third survey of the area was conducted in October of 1970 by Stuart Ferguson for the purpose of further subdividing the Northeast Quarter of the Southeast Quarter of Section 12 into Tracts A, B, and C. The Chapman lot was not platted at the time, but was eventually to be further subdivided in 1983 from Tract B. The western boundary of Tract B was intended to terminate at the l/16th section line according to the Ferguson survey.

[¶ 8.] However, Ferguson did not follow the original U.S. Forest Service Black Hills monuments to determine the original location of the l/16th line. Instead, Ferguson located an iron pin or pipe without a surveyor’s cap at the southwest corner of Tract C. Ferguson assumed the iron pipe was the same pin indicated on the Bangs survey as the l/16th line. There were no facts to indicate the origins of the iron pin, or to identify it as denoting the original l/16th section as located by the U.S. Forest Service survey. Despite the absence of clear and convincing evidence as to the identity of the pin, Ferguson accepted it as the l/16th line and conducted measurements to locate the western edge of Tract B, which would eventually become the western edge of Lot 2. Ferguson indicated he marked the other three corners of Tract B with 5/8th inch rebar. The end result was the addition of approximately 34 feet to Tract B on its western boundary.

[¶ 9.] On April 18, 1983, a plat subdividing Tract B into lots, including Lot 2 which was eventually purchased by Chapman, was filed by surveyor David Land-guth. Landguth relied on the Ferguson survey and set the western edge of Lot 2 at the l/16th section line. However, the l/16th section line was platted at the same location as the Ferguson survey rather than the original location as designated by the U.S. Forest Service survey. Landguth then marked the western boundary corners of Lot 2 with 5/8th inch rebar.

[¶ 10.] Following their purchase of Lot A in 2001, Tituses commissioned a survey of their property prior to beginning construction of a new home. The survey, conducted by Dean Scott, retraced the original footsteps of the U.S. Forest Service survey and called upon the three remaining original corner stones placed around the perimeter of Section 12 by the U.S. Forest Service in 1879 and 1886, which monumented the southeast, southwest and northwest corners of Section 12. Instead of using the iron pin of unknown origin as the location of the l/16th section line as had Ferguson and Landguth before him, Scott attempted to locate the missing northeast corner stone in order to properly divide Section 12 in its entirety by aliquot portions to arrive at the original location of the l/16th section line as required by the Manual of Instructions for the Survey of Public Lands of the United States.

[¶ 11.] When Scott was unable to ascertain the exact location of the northeast corner due to the obliteration of the monument, he extended his survey out one additional mile north from the vicinity of the missing northeast corner stone to a replacement monument located at the northeast corner of adjoining Section 1 placed by the U.S. Forest Service surveyors. Using methods prescribed by the Manual of Instructions for the Survey of the Public Lands of the United States, the location of the northeast corner of Section 12 was computed. Once the complete exterior boundary of Section 12 was determined, Scott properly computed the aliquot divisions to arrive at the original location of the 16th section line as intended by the U.S. Forest Survey.

[¶ 12.] Tituses moved for summary judgment, and the trial court granted the motion. By order the trial court established the l/16th line as originally set by the U.S. Forest Service as the property line common to Tituses and Chapman. The trial court also entered an order denying Chapman’s motion for summary judgment on the issue of adverse possession. The trial court held the markings used to establish Chapman’s property line were not open, visible, notorious, continuous or hostile occupation of the property, and in the alternative, Chapman had not been in possession of the property for 20 years as required by statute. Chapman’s motion to join necessary parties was also denied by the trial court.

STANDARD OF REVIEW

[¶ 13.] Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). We will affirm when no genuine issues of material fact exist, and the legal questions have been correctly decided. Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791 (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990) (additional citations omitted). The burden is on the moving party to clearly show the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Id. Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court’s conclusions of law. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

[¶ 14.] The ultimate conclusion of whether the facts are sufficient to constitute adverse possession is a question of law. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. Conclusions of law are reviewed under the de novo standard for which this Court gives no deference to the circuit court. Sherbum, 1999 SD 47, ¶ 4, 593 N.W.2d at 416 (additional citations omitted).

[¶ 15.] A party’s status as an indispensable party is a conclusion of law. See Thieman v. Bohman, 2002 SD 52, ¶ 14, 645 N.W.2d 260, 262. As such, a trial judge has no discretion whether to join an indispensable party, as the language of SDCL 15-6-19(a) is mandatory. Smith v. Albrecht, 361 N.W.2d 626, 628 (S.D.1985) (citing Kapp v. Hansen, 79 S.D. 279, 286, 111 N.W.2d 338, 337 (S.D.1961)). As a conclusion of law it is reviewed by this Court de novo, giving no deference to . the circuit court. Sherbum, 1999 SD 47, ¶ 4, 593 N.W.2d at 416 (citations omitted).

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the trial court erred when it established the boundary line as the l/16th line set by the U.S. Forest Service.

[¶ 17.] Government surveys, not surveys conducted by private individuals, create, rather than merely identify, boundaries. Cox v. Hart, 260 U.S. 427, 436, 43 S.Ct. 154, 157, 67 L.Ed. 332, 337 (1922). The term “original survey” refers to the official government survey performed under the laws of the federal government by its official agency. See Id.; Block v. Howell, 346 N.W.2d 441, 444-45 (S.D.1984); Walter G. Robillard & Lane J. Bouman, Clark on Surveying and Boundaries § 4.12 (5th ed 1976).

[¶ 18.] A subsequent survey by a private individual or non-government entity is more accurately described as a retracing or resurvey. Block, 346 N.W.2d at 444; Randall v. Burk Tp., 4 S.D. 337, 347, 57 N.W. 4, 10 (1893). In a retracing or resurvey, a surveyor must “take care to observe and follow the boundaries and monuments as run and marked by the original survey.” Block, 346 N.W.2d at 444. Boundaries as established by original government surveys are unchangeable and must control disputes. Christianson v. Daneville Tp., 61 S.D. 55, 58, 246 N.W. 101,102 (1932).

[¶ 19.] Original monuments, those located ' by the original surveyor, mark true corners. Lawson v. Viola Tp., 50 S.D. 555, 557-558, 210 N.W. 979, 980 (1926). “Where the location of the original monument can be found, or can be established by evidence, such location shall be held to be the true corner, regardless of the fact that resurveys may show that it should have been located elsewhere.” Id. (citing Byrne v. McKeachie, 34 S.D. 589, 149 N.W. 552 (1914); Hoekman v. Iowa Civil Township, 28 S.D. 206, 132 N.W. 1004 (1911); Randall, 4 S.D. 337, 57 N.W. 4; Beardsley v. Crane, 52 Minn. 537, 54 N.W. 740 (1893); Ogilvie v. Copeland, 145 Ill. 98, 33 N.E. 1085 (1893); Nesselroad v. Parrish, 59 Iowa 570, 13 N.W. 746 (1882). Where the original monument is obliterated, that is it cannot be located nor established by evidence, then a corner can be established by a new survey. Lawson, 50 S.D. at 558, 210 N.W. at 980 (citing Randall, 4 S.D. at 355, 57 N.W. at 10; Washington Rock Co. v. Young, 29 Utah 108, 80 P. 382 (1905)). Only upon obliteration of an original corner may a new survey be made from points that can be determined in accordance with the original surveyors field notes. Id. However, if the point at which an original monument was located can be ascertained by the court, the line as indicated by the government survey prevails. Dowdle v. Cornue, 9 S.D. 126, 127, 68 N.W. 194, 194-195 (1896).

[¶ 20.] SDCL 43-18-7 provides:

In retracing lines or making the survey the surveyor shall take care to observe and follow the boundaries and monuments as run and marked by the original survey, but shall not give undue weight to partial and doubtful evidence or appearances of monuments, the recognition of which shall require the presumption of marked errors in the original survey, and he shall note an exact description of such apparent monuments.

[¶ 21.] The 1970 Ferguson survey located an iron pipe or pin without a survey cap. The surveyor assumed the pin indicated the l/16th section line as intended by the U.S. Forest Service. The Ferguson survey failed to “walk in the footsteps” of the original surveyor in order to obtain clear and convincing evidence of the identity of the iron pipe as the l/16th line based on its location in relation to the true section corners established by the original government survey. Instead, Ferguson conducted some retracing of the original corners of Section 12 in the field, but the majority of the measurements were calculated on paper and based on the location of the iron pin or pipe which Ferguson assumed denoted the location of the l/16th section line. The subsequent surveys relied upon by Chapman and her predecessors in interest all relied on the same erroneous assumption utilized by Ferguson in 1970.

[¶ 22.] The Tituses survey conducted in 2002 did “walk in the footsteps” of the original government surveyor. The Titus-es surveyor, Scott, located three original corner monuments, and retraced the original U.S. Forest Service survey in order to ascertain the location of the final missing corner monument and accurately determine the exterior perimeter of Section 12. Scott then properly computed the aliquot divisions, including the l/16th section line, in compliance with the Manual of Instructions for the Survey of the Public Lands of the United States.

[¶ 23.] Chapman contends Titus-es were required to use the Ferguson survey in order to determine the boundary line. Their argument relies on the term “original survey” in SDCL 43-18-7 as indicating the first survey to plat the tracts from which Chapman’s Lot 2 was subdivided. Reliance on the 1970 Ferguson retracing is fatal to Chapman’s claim. The “original survey” in SDCL 43-18-7 refers to the original U.S. Forest Service survey conducted in the 1800s, not the first private survey to plat the subdivision of the tracts in question.

[¶ 24.] The record indicates that Titus-es survey complied with the requirements of SDCL 43-18-7 in that it retraced the footsteps of the original government surveyor. Conversely, the record indicates that Chapman’s surveys did not follow the requirements for retracing an original survey.

[¶ 25.] There are no disputed questions of material fact. Thus, the choice of selecting between the two differing sets of surveys is a question of law. For the reasons set forth above we conclude the trial court made the correct decision. Ti-tuses were entitled to judgment as a matter of law.

[¶ 26.] 2. Whether the trial court erred when it denied Chapman’s motion for summary judgment on the issue of adverse possession.

[¶ 27.] The record owner of disputed property is presumed to have been possessed of the property within the time presumed by law unless adverse possession is proven. Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980). To establish title by adverse possession, the claimant must be in actual, open, visible, notorious, continuous and hostile occupation for the statutory period. Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D. 1994). Although the statutory period for adverse possession is 20 years under SDCL 15-3-1, tacking allows a party to add its own claim to that of previous adverse possessors in interest, and under whom the party claims a right of possession. Estate of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138, 141 (S.D.1993) (citing Walker v. Sorenson, 64 S.D. 143, 148, 265 N.W. 589, 591 (1936)).

[¶ 28.] The burden of proving adverse possession by clear and convincing evidence is upon the party asserting the claim. Summit, Inc., 2000 SD 29, ¶ 15, 607 N.W.2d at 26 (citations omitted). The party asserting a claim under SDCL 15-3-12 must engage in “actual, open, visible, notorious, continuous and hostile” occupation of the property for the statutory period. Id. (citations omitted). Occupation must rise to the level of a substantial enclosure or usual cultivation or improvement. Schultz v. Dew, 1997 SD 72, ¶ 12, 564 N.W.2d 320, 323.

[¶ 29.] Chapman argues her adverse possession claim is by virtue of a claim of title under SDCL 15-3-1. Chapman further contends the 20 year statutory period was satisfied by virtue of the Ferguson survey of 1970 and the resurvey and subdivision in the Landguth survey of 1983, which both predate the filing of the current action by Tituses in 2003. Chapman argues the filing of the plat as surveyed in 1970 and the placement of 5/8th inch rebar corner markers by Ferguson the same year on the western boundaries of what was at that time Tract B, constituted open, visible and notorious occupation for the requisite 20 year period.

[¶ 30.] The trial court concluded the markings used to establish Chapman’s property line were insufficient evidence of actual, open, visible, notorious, continuous and hostile occupation for the statutory period. ■ Alternatively, the trial court concluded Chapman was not in possession of the property for 20 years, as Tituses granted permissive use of the property on January 18, 2003.

[¶ 31.] We are convinced the uncontested facts as presented in the record are insufficient to constitute' adverse possession, and Tituses are entitled to judgment as a matter of law. Chapman did not own the property until 1989, and the property itself was not platted as an individual lot until April 18, 1983 by Landguth. Additionally, the plat noted the l/16th section line as the western boundary. Despite indicating the location of the l/16th section line by the iron pin found by Ferguson, there were no other markings to denote actual, open, visible, notorious, continuous and hostile occupation as required by SDCL 15-3-12 until 1989 when Chapman located her mobile home on the property.

[¶ 32.] We agree the iron rebar markers were insufficient to constitute an enclosure within the meaning of SDCL 15-3-13. An enclosure need not be absolutely secure to satisfy the “substantial enclosure” statutory requirement. Schultz, 1997 SD 72, ¶ 13, 564 N.W.2d at 323. While we have held a fence or natural barrier such as a tree line is sufficient, we have never held something as meager as two 5/8th inch iron rebar denoting lot corners as sufficient to satisfy the enclosure requirement under a claim of adverse possession. See Schultz, 1997 SD 72, ¶ 13, 564 N.W.2d at 323 (holding a tree line along a driveway was sufficient to constitute an enclosure within the meaning of the statute). We decline the invitation to do so today.

[¶ 33.] 3. Whether the trial court erred when it denied Chapman’s motion to join necessary parties.

[¶ 34.] Chapman contends the trial court’s failure to join the owners of Tract B and C as necessary parties requires this Court to set aside the motion for summary judgment and order the trial court to join the owners of Tracts B and C as necessary parties to the litigation. Chapman argues the issue of the western boundary line between the Chapman and the Tituses lots cannot be determined without joinder of the adjacent lot owners who also use the l/16th line as their western boundary line. In the alternative, Chapman argues that determining the common boundary line between the Titus-es and Chapman lots would impair the ability of the adjacent Tract B and C owners to protect their respective interests in the 34 foot section in dispute between Ti-tuses and Chapman. We address the issue as a contention that the adjoining landowners were indispensable parties to the litigation.

[¶ 35.] SDCL 15-6-19(a) provides in relevant part:

A person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be accorded among those already parties; or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.

[¶ 36.] The determination of whether or not a person is an indispensable party is one which must be made on a case-by-case basis and is dependent upon the facts and circumstances of each case. Provident Tradesmens Bank Trust Co. v. Patterson, 390 U.S. 102, 119, 88 S.Ct. 733, 743, 19 L.Ed.2d 936, 950 (1968). Persons who might conceivably have an interest in the outcome of litigation are not to be considered indispensable parties. Kapp, 79 S.D. at 286, 111 N.W.2d at 337 (citation omitted). “The proper remedy for failure to join parties is the joinder of the parties, and not dismissal of the lawsuit, so long as it is possible to join the parties.” Agar School District No. 58-1 Bd. of Educ., Agar, S.D. v. McGee, 527 N.W.2d 282, 287 (S.D.1995) (quoting Johnson v. Adamski, 274 N.W.2d 267, 268 (S.D.1979) (citing SDCL 15 — 6—19(b))).

[¶ 37.] We agree with the trial court that the owners of adjacent Tracts B and C are not indispensable to the litigation within the meaning of SDCL 15-6-19(a), as none of the enumerated prerequisites apply. First, complete relief can be granted to Tituses and Chapman on the issue of the correct location of the l/16th section line as it relates to the boundary of their adjacent lots.

[¶ 38.] Second, neither of the owners of Tract B and Tract C have claimed an interest in the boundary dispute between Tituses and Chapman. The resolution of the boundary dispute between Tituses and Chapman does not impede the ability of these landowners with western boundaries adjacent to Tituses from bringing suit in the future. The trial court’s order locating the l/16th section line as originally surveyed by the U.S. Forest Service is limited to the common boundary between Tituses and Chapman. The order does not address the boundary between Tituses’ lot and Tract B and C.

[¶ 39.] There is no danger that either Tituses or Chapman, parties to the present litigation, would be at a substantial risk of incurring multiple or inconsistent obligations by reason of their claimed interests. Chapman’s property is only adjacent to Tituses’ property on its western boundary and neither Tracts B nor C share the 1/16& section line in common with Chapman. While Tracts B and C do share the l/16th line in common with Tituses, again, the trial court’s order addressed only the issue of the boundary between Tituses and Chapman.

[¶ 40.] We find the trial court did not abuse its discretion when it did not join the owners of Tracts B and C, as neither owner was an indispensable party to the litigation. We find no abuse of that discretion by the trial court. Affirmed.

[¶ 41.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . In surveying and subdividing townships, government surveyors were required to establish section corners by “a mound, four pits and a stake; and a quarter section corner by a mound, two pits and a stake or post; the stakes or posts to be properly marked, to indicate the corner represented.” Randall v. Burk Tp. of Minnehaha County, 4 S.D. 337, 351, 57 N.W. 4, 9 (1893).
      "Visible marks or indications left on natural or other objects indicating the lines and boundaries of a survey, are monuments. They include posts, pillers, [sic] stone markers, cairns, fixed natural objectsL] blazed trees and watercourses. Any natural or artificial physical object on the ground which helps establish the location of a line is a monument.” Block v. Howell, 346 N.W.2d 441, 444 n1 (SD 1984) (citing Black’s Law Dictionary 909 (1979)).

      . SDCL 15-3-1 provides:
      No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.