Invisible-Line Boundaries Fail Adverse Possession; Encroaching Garages Earn Only Limited Prescriptive Easements; Late-Raised Access Easements Are Waived

1. Introduction

Luzier v. Hemmah, 2026 S.D. 30 (S.D. May 13, 2026), is a lake-lot boundary dispute in the Ramona Beach subdivision on Pickerel Lake. Thomas and Marsha Luzier (plaintiffs/appellants) owned Lot 9 and backlot 6A; Andrew and Jennifer Hemmah (defendants/appellees) owned neighboring Lot 8 and backlot 5A. The Luziers claimed they had acquired a strip of the Hemmahs’ record-titled property by adverse possession, using a “use of land line” running along a retaining wall/driveway rock wall and other features.

Two of the Luziers’ garages encroached onto the Hemmahs’ property: (1) a “small garage” created from an older cabin moved in 1948, and (2) a “large garage” built in 1997. After a bench trial, the circuit court rejected adverse possession but granted prescriptive easements for the encroaching garages. The Supreme Court affirmed, also addressing (i) how a trial court may deal with conflicting deposition testimony and (ii) waiver of a belatedly asserted additional access easement.

Key issues

  • Factfinding/credibility: Whether the circuit court clearly erred by not specifically analyzing credibility for witnesses presented by deposition.
  • Adverse possession: Whether the Luziers proved the elements—especially the threshold “occupation” requirement—by clear and convincing evidence.
  • Prescriptive easements: (a) Whether easements were properly granted for structural encroachments and (b) whether the easements should be expanded (including to protect earth anchors and to add a five-foot lake-access corridor).

2. Summary of the Opinion

The Supreme Court of South Dakota affirmed across the board:

  • No adverse possession: The Luziers failed to prove the threshold “occupation” element under SDCL 15-3-12 and SDCL 15-3-13 (no substantial enclosure and no clear-and-convincing proof of usual cultivation or improvement). This failure preempted the claim.
  • Prescriptive easements affirmed: The two garage encroachments satisfied the 20-year open/continuous use requirement; hostility was not rebutted by permission evidence.
  • Scope of easements: The circuit court properly limited the easements to the garages’ occupied footprint plus only the “immediate adjacent area” necessary for maintenance and operation as historically used; no expanded 15-foot buffer was required on this record.
  • Waiver: The Luziers’ post-decision request for an additional five-foot lake access easement was waived because it was not pleaded or timely developed.

3. Analysis

A. Precedents Cited (and how they shaped the result)

1) Appellate review, clear error, and credibility deference

  • Kirwan v. City of Deadwood, 2023 S.D. 20: Reinforced the “definite and firm conviction” formulation for clear-error review, limiting appellate reweighing of evidence.
  • Adrian v. McKinnie, 2002 S.D. 10 (citing In re Regennitter, 1999 S.D. 26): Emphasized that credibility assessments belong to the trial court and receive “considerable deference.”
  • Chicago, B. & Q.R. Co. v. Wheaton, 80 N.W.2d 868 (S.D. 1957) (citing Houck v. Hult, 258 N.W. 142 (S.D. 1934)): In a court trial, it is the trial court’s role to accept or reject testimony; appellate intervention is limited.

These cases framed the Court’s response to the Luziers’ demand that the circuit court “weigh” deposition testimony credibility in a more explicit, factor-by-factor manner. The Court refused to impose a required methodology, emphasizing deference and the limited scope of appellate review under SDCL 15-6-52(a).

2) Adverse possession framework and the “occupation” prerequisite

  • Mohnen v. Est. of Mohnen, 2024 S.D. 35 (quoting Healy Ranch P'ship v. Mines, 2022 S.D. 44): Distinguished fact questions for individual elements from the legal conclusion of adverse possession.
  • Fuoss v. Dahlke Fam. Ltd. P'ship, 2023 S.D. 3 (quoting Gangle v. Spiry, 2018 S.D. 55): Confirmed the appellate standards (clear error for facts; de novo for legal conclusions) and recited adverse possession elements and burdens.
  • Eagle Ridge Ests. Homeowners Ass'n, Inc. v. Anderson, 2013 S.D. 21: Provided the familiar clear-error definition used in adverse possession review.
  • Underhill v. Mattson, 2016 S.D. 69 and Schultz v. Dew, 1997 S.D. 72: Treated “occupation” as requiring either a “substantial enclosure” or “usual cultivation or improvement” under SDCL 15-3-13.
  • Lewis v. Aslesen, 2001 S.D. 131: Critical here—declared SDCL 15-3-13 a prerequisite to a justiciable adverse possession claim; failure to show enclosure or cultivation/improvement “preempts the claim.”
  • Lien v. Beard, 478 N.W.2d 578 (S.D. 1991) (quoting Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419): Limited claims without written instrument to what was actually and continuously occupied under SDCL 15-3-12; reinforced the occupation requirement.
  • Titus v. Chapman, 2004 S.D. 106 (citing Est. of Billings v. Deadwood Congregation of Jehovah Witnesses, 506 N.W.2d 138): Explained tacking and reiterated the substantial enclosure/usual cultivation or improvement standard.

The Court used these authorities to “short-circuit” the adverse possession analysis: once the Luziers failed SDCL 15-3-13’s occupation prerequisite (as explained in Lewis v. Aslesen), the Court did not need to address open/notorious/continuous/hostile elements.

3) What counts as a “substantial enclosure” (and what does not)

  • Taylor v. Tripp, 330 N.W.2d 542 (S.D. 1983): A fence line can function as the enclosure marking an adverse boundary.
  • Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419: A natural barrier (like a river) can serve as an enclosure if it surrounds the area like a fence would.
  • Lewis v. Moorhead, 522 N.W.2d 1 (S.D. 1994) (quoting Klinefelter v. Dutch, 467 N.W.2d 192 (Wis. 1991)): Even a partial fence may suffice if it provides a physical/visual basis for a boundary under the circumstances.
  • Schultz v. Dew, 1997 S.D. 72: A deliberate line of trees—planted and maintained—can be a substantial enclosure.
  • Ashby v. Oolman, 2008 S.D. 26: A substantial enclosure must be more than an “invisible line” between random objects; the Court relied heavily on this concept to reject the Luziers’ “use of land line.”

Doctrinal payoff: The decision tightens the practical lesson from Ashby v. Oolman: where the claimed boundary is essentially a constructed narrative connecting scattered features (anchors, corners, trees, angled walls) rather than an enclosure that objectively signals a boundary, “substantial enclosure” fails.

4) “Usual cultivation or improvement” (mowing and landscaping)

  • Underhill v. Mattson, 2016 S.D. 69 (quoting Aslesen, 2001 S.D. 131): Regular mowing is “cultivation,” and landscaping is an “improvement” under SDCL 15-3-13(2).
  • Jutting v. Hendrix, 2000 S.D. 25: Planting/maintaining trees, cleaning debris, and regular mowing can establish cultivation.
  • Schultz v. Dew, 1997 S.D. 72: Driveways plus landscaping can be “improvements.”

The Court did not retreat from mowing/landscaping as qualifying acts; instead, it emphasized the clear and convincing evidentiary burden and accepted the trial court’s inability to resolve conflicting evidence (especially via depositions) as fatal to the claim.

5) Clear and convincing evidence explained through prior decisions

  • In re Zar, 434 N.W.2d 598 (S.D. 1989) (quoting Cromwell v. Hosbrook, 134 N.W.2d 777 (S.D. 1965)): Defined “clear and convincing” as more than preponderance and requiring evidence “so clear, direct and weighty” as to produce a clear conviction without hesitancy.

This definition underwrote the Court’s acceptance that, where the record contains genuine evidentiary conflict about mowing/maintenance, the claim may fail not because mowing is legally insufficient, but because it is not proven with the required clarity.

6) Prescriptive easements: elements, presumptions, and permission rebuttal

  • Rotenberger v. Burghduff, 2007 S.D. 19 (citing Rancour v. Golden Reward Mining Co., 2005 S.D. 28): Stated the two-part test—20 years open/continued/unmolested use plus hostility/adversity—proved by clear and convincing evidence.
  • Fuoss v. Dahlke Fam. Ltd. P'ship, 2023 S.D. 3 (quoting Helleberg v. Estes, 2020 S.D. 27): Explained that prescriptive easement elements protect the servient owner by providing notice.
  • Thompson v. E.I.G. Palace Mall, L.L.C., 2003 S.D. 12: Recognized the prima facie presumption of adversity from open and continuous use with the owner’s knowledge.

The Court used these precedents to affirm that long-standing structural encroachments (garages) can satisfy open/continuous use, and that “permission” must be supported by evidence. Here, the record did not establish permission for either the 1948 small-garage encroachment or the 1997 large-garage encroachment.

B. Legal Reasoning

1) Deposition testimony: no required “credibility-factor” checklist

The Luziers argued the circuit court erred by accepting deposition testimony as “conflicting” without “weighing” credibility. The Supreme Court rejected that approach for two reasons:

  • SDCL 15-6-52(a) demands deference to the trial court’s factfinding and credibility judgments; it does not impose a particular analytic format, especially one akin to jury instructions.
  • The trial court did assess credibility contextually—finding the deponents disinterested—but candidly noted the limitation of not observing demeanor. The Supreme Court treated this as a reasonable articulation of why the conflict could not be resolved to the level of clear and convincing proof.

The Court also refused the Luziers’ invitation to re-rank deposition credibility on appeal, because that would convert clear-error review into de novo factfinding.

2) Adverse possession: failure at the “occupation” gateway ends the case

The Court treated “occupation” under SDCL 15-3-12 and SDCL 15-3-13 as a gating requirement. The Luziers could prove occupation only by showing: (i) a substantial enclosure, or (ii) usual cultivation or improvement.

  • No substantial enclosure: The “use of land line” resembled the “invisible line” rejected in Ashby v. Oolman. Aside from the driveway rock wall, there was no enclosing feature that objectively demarcated the claimed boundary; testimony conceded there were “no enclosures.” The Court also observed the rock wall’s L-shape would, if anything, “enclose” the Hemmahs’ driveway rather than define Lot 9’s claim.
  • No clear-and-convincing proof of cultivation/improvement: While mowing and landscaping can qualify as “cultivation” or “improvement,” the evidence about who maintained the disputed strip was conflicting, much of it by deposition. Applying the heightened burden, the trial court’s conclusion that the Luziers failed to prove “usual cultivation or improvement” was not clearly erroneous.

Because Lewis v. Aslesen characterizes SDCL 15-3-13 as a prerequisite, the Court declined to analyze other adverse possession elements once occupation failed.

3) Prescriptive easements for structural encroachments: hostility not defeated by thin “permission” narratives

The Court emphasized the standard prescriptive-easement framework: 20 years open/continuous/unmolested use plus hostile/adverse use, with a presumption of adversity arising from open and continuous use with the owner’s knowledge.

  • Small garage (1948): No evidence showed permission. The Webbs learned of the encroachment only after a 2002 survey and expressed resignation (“nothing either one of us can do about that”), not a grant of permission.
  • Large garage (1997): Evidence that Robert Webb told the Johnsons “he better move it” did not establish permission; if anything, it suggested objection. He was not present during construction and later did not pursue the matter, supporting an inference of unmolested adverse use rather than permissive use.

4) Scope of the easement: footprint plus only what is necessary for historical use and maintenance

The circuit court’s easement description limited the easement to (a) the portion of the Hemmahs’ land the garages “actually occupy” and (b) the “immediate adjacent area” necessary to support maintenance and operation as historically used—expressly forbidding expansion beyond that necessity.

The Supreme Court affirmed this as an appropriate balance. The Luziers sought an additional 15-foot southerly extension to protect earth anchors and a retaining wall, but their expert could not precisely locate anchor length; the Court deemed the request potentially overinclusive and unnecessarily burdensome to the servient estate.

5) Waiver: a new lake-access easement cannot be added after the merits decision

Although prescriptive easements for the garages were litigated (prompted by the Hemmahs and the court’s request for briefing), the Luziers’ request for a separate five-foot lake access easement appeared only after the memorandum decision—via objection to a proposed judgment. The Supreme Court held that claim was waived and not properly before it.

C. Impact

1) Boundary disputes: “feature-to-feature” narratives remain risky under SDCL 15-3-13

Luzier reinforces that adverse possession in South Dakota is not established by merely showing a pattern of use or an understood “line” if the line is effectively an “invisible” construct connecting disparate objects. Claimants should expect courts to demand a boundary marker that objectively signals a claim—substantial enclosure (fence/tree line/natural barrier) or clearly proven cultivation/improvement across the exact disputed area.

2) Evidence strategy: deposition-only proof may be insufficient under a heightened burden

The decision signals a practical evidentiary point: where the burden is clear and convincing, and key maintenance facts are contested, reliance on deposition transcripts (without persuasive corroboration) may leave a trial court unable to reach the required “clear conviction.”

3) Encroaching structures: prescriptive rights may be recognized, but narrowly tailored

The Court’s approval of an easement limited to the structural footprint plus only the immediate necessary adjacent area provides a template for resolving longstanding encroachments without transferring title. This encourages remedial precision—protecting existing structures while avoiding unnecessary impairment of the servient owner’s development options.

4) Litigation discipline: easement theories must be pleaded and pursued timely

The waiver holding warns litigants not to treat post-decision objections as a vehicle for new substantive property claims. If lake access (or any non-structural use corridor) is at issue, it should be pleaded, tried, and briefed on the merits.

4. Complex Concepts Simplified

  • Adverse possession: A way to gain ownership of land by possessing it in a legally significant way for a statutory period (generally 20 years), meeting strict elements and proof standards.
  • Occupation / SDCL 15-3-13: In South Dakota, when you do not have a written instrument covering the disputed land, you must show the land was actually occupied by either (a) a substantial enclosure or (b) usual cultivation/improvement. If you cannot, the adverse possession claim fails at the threshold.
  • Substantial enclosure: Not necessarily a full fence; it can be a partial fence, a natural barrier, or a deliberate tree line—so long as it objectively signals the claimed boundary. An “invisible line” connecting unrelated features is not enough.
  • Clear and convincing evidence: A higher proof standard than “more likely than not.” The factfinder must be firmly convinced, without hesitancy.
  • Prescriptive easement: A right to use (not own) another’s land acquired through long, open, continuous, and adverse use for the statutory period.
  • Hostile/adverse vs. permissive use: “Hostile” does not mean unfriendly; it means the use occurs as a matter of right, not by the owner’s permission. Permission defeats prescription.
  • Servient estate: The land burdened by an easement (here, the Hemmahs’ lots). The easement holder’s rights are typically limited to what is necessary for the easement’s purpose.
  • Waiver: Losing the ability to raise a claim because it was not timely asserted (e.g., not pleaded or litigated before the decision).

5. Conclusion

Luzier v. Hemmah is a modern reaffirmation of South Dakota’s disciplined approach to adverse possession: without a substantial enclosure or clearly proven cultivation/improvement under SDCL 15-3-13, the claim fails regardless of long-term neighborly assumptions. At the same time, the case confirms that longstanding structural encroachments may mature into prescriptive easements, but courts will tailor the remedy tightly—protecting the existing structure and only the immediately necessary adjacent area, while rejecting speculative buffer expansions. Finally, the decision underscores procedural rigor: new easement demands—like a lake-access corridor—must be timely pleaded and tried, not added after the merits ruling.