Thompson v. E.I.G. Palace Mall

2003 S.D. 12, 657 N.W.2d 300



For a prescriptive easement to exist, a party seeking the easement must use the property in a manner that is hostile or adverse to the owner. A prescriptive easement is much like a claim of ownership by adverse possession, except that with the former the adverse user acquires only an easement and not title. Under South Dakota statutes, the sole test for adverse possession has been said to be physical exclusion of all others under a claim of right. Thus, a use that is merely permissive and not adverse to the interests of the property owner will not become a prescriptive easement.


Plaintiffs owned a restaurant located adjacent to the mall owned by defendants. At one time, the restaurant and mall properties were owned by the same person. Because customer and delivery truck use of the mall parking lot had continued since plaintiffs purchased the restaurant in 1974, plaintiffs claimed that they had occupied the parking lot property for more than 20 years and had established open and notorious use and possession for purposes of customer parking, as well as for ingress and egress. Plaintiffs sought a judgment recognizing that they had a prescriptive right to use the parking lot for customer parking and truck deliveries. Defendants contended that the use of the parking lot by the general public, including the restaurant's customers, was permitted because it was not adverse to the mall's interests. The trial court granted summary judgment to defendants. The restaurant owners appealed, and the judgment was affirmed in part and reversed in part.


Did plaintiff restaurant owners acquire a prescriptive right to use defendant mall owners’ parking lot for customer parking when such use was merely permitted by defendants?




Defendant mall owners merely acquiesced in the use of the parking lot by members of the general public, who were permitted to use the lot and did so of their own volition. Plaintiff restaurant owners established no claim of right from which defendants could have acquired notice of the adverse claim. Therefore, the trial court properly granted summary judgment to defendants on plaintiffs' claim for a prescriptive easement.

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