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When Easements Aren’t Easy
by Ron Davis

Previous use of a shopping center parking lot by a neighboring business doesn’t mean that the owner of that business forever retains that privilege. So ruled the South Dakota Supreme Court in a lawsuit involving Palace Mall in Mitchell and an adjacent restaurant.

The restaurant’s customers had used the parking lot of Palace Mall for more than 20 years, and its owners had not objected. Palace Mall has adequate parking for its own customers.

That changed recently, however, when an auto parts company expressed an interest in building a store in the Palace Mall parking lot. The site of the proposed store would be where the restaurant’s customers now park.

Palace Mall therefore informed the restaurant owner that his customers could no longer use the center’s parking area. The restaurant owner sued, arguing that he has established “an implied easement” with regard to the shopping center property.

In response to the lawsuit, the owners of Palace Mall pointed out that the restaurant has a separate means of street access and available parking on both sides of the restaurant. Therefore, they added, the restaurant doesn’t actually need the Palace Mall parking area.

Under South Dakota law, to establish an easement over an adjacent property, the neighboring property owner must show that the easement is necessary “for the proper and reasonable enjoyment” of his own property.

The South Dakota Supreme Court, in its ruling, upheld a lower court decision that found that the restaurant has its own parking lot and separate street access and thus could not trespass further on the property of the shopping center. “Allowing cars, tour buses, and other large vehicles to park in the mall lot was more convenient than necessary,” the court explained, adding, “and the mall owners merely acquiesced in the use of the lot by members of the general public, who were permitted to use the lot and did so of their own volition.” (Thompson v. E.I.G. Palace Mall, 657 N.W.2d 300 [S.D. 2003])

Decision: February 2003
Published: May 2003



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