## Facts

- Restaurant owners operated Fanny Horner’s Eating Establishment on a parcel immediately adjacent to the Palace Mall parking lot in Mitchell, South Dakota, owned by E.I.G. Palace Mall, LLC.
- The restaurant parcel and mall parcel were once under common ownership, during which restaurant patrons and delivery trucks used the area that later became the mall parking lot.
- In 1974, the common owner conveyed the restaurant parcel to the plaintiffs; restaurant customers and delivery vehicles continued using portions of the mall lot thereafter.
- The owners claimed that, for more than twenty years, restaurant patrons parked in the mall lot and vehicles used it for ingress and egress, and that the owners represented to patrons that such parking was authorized.
- The mall owner planned to sell a portion of the lot to a third party for construction of an auto-parts store, prompting the owners to seek a declaratory judgment recognizing easement rights.
- The owners also asserted that large delivery trucks could reach the restaurant only by crossing the mall lot, and that this delivery route had existed since before the 1974 severance.
- The circuit court granted summary judgment against the owners on both prescriptive-easement and implied-easement theories.

## Issues

1. Whether use of a parking lot open to the general public can satisfy the adversity and notice elements required to establish a prescriptive easement for customer parking and general ingress/egress.
2. Whether summary judgment was proper on a claimed implied easement allowing large delivery trucks to cross the mall lot based on prior use or necessity at the time of severance.

## Decision

- The court affirmed summary judgment rejecting a prescriptive easement for customer parking and general access, holding the use was not shown to be adverse or to provide notice of a claim of right.
- The court reversed summary judgment on the implied-easement claim for delivery-truck access, holding that genuine issues of material fact existed as to whether an implied easement arose and, if so, its scope.
- The case was remanded for further proceedings limited to the implied-easement issue.

## Legal Principles

- A prescriptive easement requires open and notorious, continuous use for the statutory period, and adverse use under a claim of right sufficient to put the servient owner on notice.
- When land is held open for use by the general public (such as a retail parking lot), a claimant’s use in the same manner as other members of the public is ordinarily permissive and does not, without more, establish adversity or notice for prescription.
- An implied easement may arise upon severance of commonly owned parcels where, before severance, one part of the property was used to benefit another in an apparent, continuous manner that was reasonably necessary for the benefited parcel (implied by prior use).
- An implied easement by necessity may arise where access is reasonably necessary for the beneficial use of the conveyed parcel due to the configuration created by severance.
- Whether an apparent, continuous, and reasonably necessary pre-severance use existed, and whether post-severance access is reasonably necessary, are commonly fact questions that can preclude summary judgment.

## Conclusion

The court held that restaurant patrons’ use of a public-access mall parking lot could not, on the record presented, establish a prescriptive easement because it did not provide notice of adverse use, but it required trial on whether an implied easement existed for large delivery trucks based on conditions at severance and the necessity and continuity of the delivery route.


Thompson v. E.I.G. Palace Mall, LLC, 657 N.W.2d 300 (S.D. 2003)