## Facts

- Lot 1 and adjacent Lot 11 are residential lots near Rapid City, South Dakota, with Pine Tree Drive as the main road for access.
- Lot 1 had been divided into a north portion and a south portion.
- William and Nelva Blenner owned Lot 11 and the south portion of Lot 1, while Elson and Anna Leavitt and Rita Larson owned the north portion of Lot 1.
- In 1978, the Blenners granted the Leavitts/Larson a recorded easement for ingress and egress from Lot 1 North across Lot 11 to Pine Tree Drive.
- There was no evidence that the 1978 easement was ever used.
- In 1981, Thomas Vaughn purchased Lot 11, and the Blenners acquired the north portion of Lot 1, resulting in the Blenners owning both the north and south portions of Lot 1.
- Also in 1981, the Blenners obtained a second recorded easement from Vaughn running from the south portion of Lot 1 across Lot 11 to Pine Tree Drive.
- After the 1981 grant, the Blenners used the 1981 easement as their only access route to Pine Tree Drive.
- Vaughn, unaware of the earlier 1978 easement despite its recording, built a garage that blocked the route where the 1978 easement would have run.
- In 1982, the Blenners sold Lot 1 to Gary and Patricia Graves, who continued to use only the 1981 easement for access.
- In 2002, Thomas and Carla Dennis purchased Lot 11, and a dispute arose regarding the Graveses’ right to use the 1981 easement.
- The Graveses sued for declaratory and injunctive relief regarding the 1981 easement; during the lawsuit they learned of the 1978 easement and amended their complaint to seek a declaration that they could also use that route.
- After a bench trial, the circuit court found the Dennises had interfered with the Graveses’ use of the 1981 easement and ordered remedial work, but ruled that the 1978 easement had been abandoned.
- The Graveses appealed the abandonment ruling.

## Issues

1. Whether the circuit court erred in ruling that the 1978 recorded easement was abandoned.
2. Whether nonuse of the 1978 easement, combined with creation and exclusive use of the 1981 access easement and the unchallenged blocking of the 1978 route, supported a finding of abandonment under South Dakota law.

## Decision

- The Supreme Court of South Dakota affirmed the circuit court.
- The court upheld the determination that the 1978 easement had been abandoned based on the long-standing nonuse and conduct indicating it had been replaced by the 1981 easement.
- The court also left intact the relief protecting the Graveses’ use of the 1981 easement, including the order addressing interference with that access route.

## Legal Principles

- Mere nonuse of an easement, standing alone, does not terminate the easement.
- Abandonment requires conduct showing an intent to give up the easement, demonstrated by acts inconsistent with continuing to claim the right.
- Intent to abandon may be found from circumstantial evidence, including long-term exclusive reliance on a later easement serving the same access function.
- Failure to object when the servient owner constructs an improvement that blocks the older easement route can support abandonment when combined with other conduct showing the older route is no longer claimed.
- On appeal from a bench trial, the Supreme Court will sustain a factual finding of abandonment when supported by the record and not clearly erroneous.

## Conclusion

The South Dakota Supreme Court affirmed the finding that the 1978 access easement across Lot 11 was abandoned because it was never used, the landowners relied solely for many years on the later 1981 easement for access to Pine Tree Drive, and the earlier route was physically blocked by a garage without any effort to assert or preserve the 1978 easement; the court also affirmed the trial court’s protection of the Graveses’ continuing rights under the 1981 easement.


Graves v. Dennis, 691 N.W.2d 315 (2004)