## Facts

- A 45.5-by-230-foot strip along the west side of the Dews’ record-title parcel contained the Pepkas’ driveway and a grassy area with trees.
- The Pepkas acquired adjacent residential property in 1946 and treated the strip as part of their yard and access.
- Over decades, the Pepkas improved and maintained the strip by placing gravel and later paving the driveway with asphalt, mowing up to a consistent boundary line west of the driveway, and planting and caring for a line of evergreens along the driveway.
- The Pepkas used the strip without requesting or receiving permission from the Dews or their predecessors; no fence or signage was installed.
- The parties maintained generally friendly relations, and the Dews sometimes assisted with maintenance such as mowing.
- In 1993, during efforts to sell the Pepka property, a survey/title review revealed the Dews held record title to the strip; the Dews asserted ownership.
- The Pepka successors sued to quiet title, claiming ownership by adverse possession.

## Issues

1. Whether the Pepka plaintiffs established adverse possession of the disputed strip under South Dakota law, including statutory requirements of cultivation/improvement or substantial enclosure for twenty years.
2. Whether summary judgment was proper or whether genuine disputes of material fact existed on adverse possession elements.
3. Whether later discussions about purchasing the strip or obtaining an easement negated, interrupted, or defeated adverse possession that had already run for the statutory period.

## Decision

- The Supreme Court of South Dakota affirmed summary judgment quieting title to the strip in the Pepka plaintiffs.
- The court held the undisputed long-term use and physical acts (driveway improvements, mowing pattern, tree planting and maintenance) satisfied actual, open, notorious, continuous, exclusive, and hostile possession for at least twenty years.
- The court concluded the maintained tree line and established use functioned as a substantial enclosure and the land was cultivated or improved within the meaning of the statute.
- The court held that once title vested by adverse possession after the statutory period, later negotiations or acknowledgments did not divest that title.

## Legal Principles

- Adverse possession requires actual, open, visible, notorious, continuous, and hostile possession under a claim of ownership for the statutory period.
- Under SDCL 15-3-13, a claimant must show possession under a claim of title exclusive of others and that, for twenty years, the land was usually cultivated or improved or protected by a substantial enclosure.
- “Hostile” possession does not require animosity; it is possession under a claim of right inconsistent with the record owner’s title, and friendly relations or occasional assistance by the record owner do not necessarily make the use permissive.
- A substantial enclosure may be shown by physical demarcations and use patterns (including a maintained tree line) that clearly indicate exclusive control, even without a fence.
- After the statutory period runs and title vests by adverse possession, subsequent offers to purchase, efforts to obtain an easement, or similar communications do not retroactively defeat the completed adverse possession.

## Conclusion

The court affirmed quiet title by adverse possession where decades of driveway construction and maintenance, consistent mowing to a claimed boundary, and a maintained tree line established open, exclusive, hostile possession for more than twenty years, and later negotiations after the dispute arose could not undo already-vested title.


Schultz v. Dew, 564 N.W.2d 320 (S.D. 1997)