McCook County gravel-pit case needs new trial

Capitol News Bureau

The South Dakota Supreme Court at the October 2020 session in Vermillion.

PIERRE, S.D. (KELO) — A circuit judge reached an incorrect decision in a family dispute over an access road to a gravel pit in McCook County, the South Dakota Supreme Court has ruled.

In a decision released Thursday, the state’s highest court said the matter should be heard again.

The case involved a gravel pit and an access road on private land that Cletus and Shirley Heumiller owned. They sold various parcels to their children. The parcel with the gravel pit went to one of the children, Mark Heumiller and his wife, Kelly, who sued after the parents sold the parcels with the access road to two other children and a new agreement couldn’t be reached.

Justice Mark Salter wrote the unanimous decision. He said the circuit judge didn’t follow the process that the Supreme Court laid out in several past decisions, including the standard that a common-law easement can exist in the absence of what he described as an “explicit contrary agreement.”

The high court’s 2003 Thompson decision stated that “the conveyance imparts a grant with the benefits and burdens existing at the time of the conveyance, even when such grant is not reserved or specified in the deed.”

Wrote Salter: “The (circuit) court concluded that while the road had a ‘very lengthy history,’ it is not permanent because a bridge on the road is ‘failing and in dire need of replacement.’ The actual permanency as affected by the need for prospective repairs is not the correct inquiry because it does not test the nature of the past use—it tests the extent and feasibility of the future use.”

The justices also agreed there wasn’t sufficient information presented for the circuit judge to decide whether repairing the current road or building a new road was less expensive.

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