The SD Supreme Court handed down two decisions this morning:
1) “no build” covenant for Big Horn Sheep enforced;
2) Remedy for breach of 1995 oral contract regarding real property
denied in 3-2 ruling.
Summaries follows:
SPRING CANYON PROPERTIES, LLC v. CAL SD, LLC, 2024 S.D. 68: Owner of recently-acquired property located outside
of Rapid City started construction of a fenced area for a garden, with construction
of contained an “overhead truss” structure
for anticipated “hail netting.” Owner of
neighboring lot (and prior owner of lot in question) filed suit to enforce “restrictive no build covenant.” The trial
court granted an injunction requiring the removal of the “all overhead components of the building structure in the ‘No
Build’ zone [and also] enjoin[ing Defendanst] from rebuilding or placing any
new structure in the ‘No Build’ zone that exceeds 8’ in height as measured from
ground level.” The SD Supreme Court affirmed the injunction, but
also held that on remand the 8’ height prohibition was to be removed because
the height restriction was beyond the relief requested and was not supported by
the “no build covenant,” and was not mandated by “Pennington County Ordinance.” This decision is unanimous (5-0), with opinion
authored by Justice Myren.
NOTE: The “no build” covenant
states that its provisions were created for “the
express purpose of allowing the free movement of big horn sheep in [the] wilderness
preserve and to preclude any new fencing of areas…”
A photo of the garden fence and truss structure was included
in the Court’s opinion and I have copied it at the bottom of this e-mail
message.
JOHNSON v. JOHNSON, 2024 S.D. 69: Parents deeded property to Daughter
in 1995 under oral agreement described as follows in
[Daughter]
and her family could live rent-free in [an adjoining] home. The agreement also
contemplated that [Daughter] would transfer the [deeded property] equally to
her four siblings and herself once she satisfied the mortgage on the [newly-constructed]
home [on the deeded property.]
In 2005, surviving mother
confirmed in writing that this was the intention of deceased father and mother in
1995 when making the “oral contract” with
Daughter.
Daughter brought partition suit in 2018 in regard to ownership
of adjoining property. Brother answered,
“claim[ing the 1995 oral contract] could be enforced through
specific performance and partition of the [deeded property] or, in the
alternative, an award of damages.”
Trial Court granted summary judgment for Daughter and against
brother based, inter alia, upon the 6 year statute of limitations found
in SDCL 15-2-13.
The SD Supreme Court affirmed.
This is a split decision (3-2).
The Court’s opinion is authored by Justice Salter.
Justice DeVaney filed a dissenting opinion in regard to the
application of the 6 year statute of limitations, taking issue with the
majority’s ruling in regard to when Brother (and siblings) had notice of
Daughter’s intent to breach the oral contract and when the cause of action “accrued.” Justice Kern agrees with Justice
DeVaney’s view.
These decisions may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
Attached is a photo of the “garden fence” which is the subject of
SPRING CANYON PROPERTIES, LLC v. CAL SD, LLC, 2024 S.D. 68, summarized above:
