Property II, Pages 569–572

Graves v. Dennis

Supreme Court of South Dakota, 2004


Plaintiff purchased a lot from the Blenners in 1982. The Blenners had acquired two easements on the property, one in 1978 and one in 1981, although they never used the 1978 easement. Plaintiffs were unaware of the 1978 easement's existence and their neighbor, Vaughn, built a garage on the easement. Plaintiffs did not express any problems with its construction before or after Vaughn asked them about it.

In 2002, Vaughn sold his lot to the defendants. Plaintiffs and defendants had several disputes about the 1981 easement, mainly concerning how it was used. Defendants often complained to the police about the speed at which plaintiffs traversed it. To slow down traffic, defendants dug two speed dips on the road. Plaintiffs sued for damages and a declaratory judgment on their rights to use the 1981 easement unobstructed. After filing suit, plaintiffs learned of the 1978 easement and amended their complaint to include it.

Procedural History:

Trial court ordered that the speed dips and a retaining wall within the 1981 easement be removed, but found that the 1978 easement had bee effectively abandoned when the 1981 easement was created.


Was the 1978 easement abandoned?

Plaintiff's Argument:

Plaintiffs did not know about the 1978 easement and thus could not have had the intent to abandon it.


  • Abandonment of an easement must have both exclusive use of the new right-of-way and nonuse of the old right-of-way.

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 572, Paragraph 1

    A finding of abandonment is usually based on circumstantial evidence rather than on direct expressions of intent


Neither the plaintiffs nor the Blenners used the old easement after obtaining the new one in 1981. Plaintiffs also authorized the construction of Vaughn's garage on the easement.


The 1978 easement was abandoned. Affirmed.