GILBERTSON, Chief Justice.
[¶ 1.] In 2001, the landowners of all developed lots in the Selway Estate Development in Lawrence County, filed a petition for declaratory judgment and to vacate a part of the subdivision plat depicting a "66' R.O.W. (FUTURE USE)." (See attached copy of plat). It is the legal status of this realty which is the subject of this appeal.
[¶ 2.] The Selway subdivision was developed by Pearco Partnership, which is made up of William Pearson, Pamela Cleveland and Faunille Fierro Cummings. The Pearco Partnership also owns the land adjacent to the Selway subdivision to the east, which would be connected to the Selway subdivision by this "future use right-of-way." The Lawrence County Commission denied the petition and the landowners appealed the decision to the circuit court. The circuit court reversed, holding that the realty was a private easement. The court then allowed parol evidence to determine the scope of the private easement. The circuit court held that William Pearson, acting as an agent for the Pearco Partnership, concealed material facts, and misrepresented the partnership's intentions with regards to property designated as a "future use right-of-way." The circuit court further held that the Pearco Partnership was equitably estopped from developing the "future use right-of-way" for anything other than an access road for fire protection purposes. Cummings appeals the circuit court's decision. We affirm.
[¶ 3.] In 1986 the "Pearco Partnership" submitted a proposed plat to the Lawrence County Planning and Zoning Commission (Planning Commission). The plat proposed a residential subdivision located in Lawrence County, adjacent to U.S. Highway 14. The property was described as "Lots 1-12 of the Selway Estate Development." The Planning Commission approved the plat and submitted it to the Lawrence County Commission (County Commission) for approval, which the County Commission granted on April 9, 1986.
[¶ 4.] The plat contained a main road, running north/south, and extending from U.S. Highway 14 to the southern portion
[¶ 5.] The Pearco Partnership also owned the adjacent land to the east of the Selway subdivision, which would benefit substantially if the "future use right-of-way" were developed into a public road. The minutes from the Planning Commission meeting on April 7, 1986, state "[a] 66' R.O.W., reserved for future use, had been platted between Lots 8 and 9. The road would access the Pearco Partnership land to the east." However, the "future use right-of-way" was never used as a road, and instead has been described by the parties as a hay field.
[¶ 6.] Although the disputed property was clearly delineated on the plat, several of the Selway landowners testified that William Pearson (Pearson), one of the Pearco partners, told the landowners that this "future use right-of-way" was included on the plat so that the plat would be in compliance with forest service requirements. The landowners testified that Pearson indicated to them that the partnership had no intention of developing this property into a road, unless it was necessary to access water for fire protection purposes.
[¶ 7.] The Selway landowners held meetings in February and March of 1987, at which time they discussed the "future use right-of-way." The Selway landowners voiced concerns that landowners to the east of the Selway subdivision could open it as a public right-of-way. The Selway landowners were informed at the March meeting that the disputed property could be vacated with a two-thirds vote by the Selway landowners. Pearson attended the March meeting and testified that he was "shocked" that the landowners believed they could vacate the "future use right of way" with a two-thirds vote. However, Pearson did not voice any objections, nor did he indicate that Pearco may try to open the "future use right-of-way" to access the Pearco land to the east of the Selway subdivision. Moreover, Pearson and the other members of the Pearco Partnership, including Faunille Fierro Cummings (Cummings), received the minutes to each of these meetings and the partners did not object, nor did they attempt to correct any misinformation contained in the minutes.
[¶ 8.] In 1991 and 1992, the Planning Commission and the County Commission approved plats designated as Tract 1 and Tract 2 submitted by the Pearco Partnership
[¶ 9.] Cummings testified that she owns Tract 2 and has a residence there. She further stated that for future development of her tract, the best access to Highway 14 would be through the Selway subdivision, but she also acknowledged that she has access to the highway through Tract 1, which is owned by Pamela Cleveland, her sister and fellow Pearco Partner. Furthermore, Eric Birk, the Lawrence County Planning and Zoning Administrator since 1991, testified that there is no requirement that Selway have two access points.
[¶ 10.] In October 2001, the Selway landowners filed a petition with the County Commission, asking the commission to vacate the "future use right-of-way" pursuant to SDCL ch 11-3. The petition was signed by the owners of all developed lots (eleven) within the Selway subdivision. After a hearing, the County Commission denied the petition. Although the County Commission did not state a reason for the denial, it appears from the minutes and a tape recording of the hearing that the petition was denied in order to refer the issue to the circuit court.
[¶ 11.] In December 2001, the Selway landowners simultaneously filed an appeal of the County Commission's ruling, as well as a summons and complaint commencing a declaratory judgment action to ascertain the legal status of the future use right-of-way. These actions were consolidated and tried before the circuit court. After a hearing, the circuit court held that the disputed realty had not been dedicated to the public, and was therefore a private easement. The circuitcourt further held that the plat was ambiguous as to the intentions of the Pearco Partnership with regards to the "future use right-of-way." To clear up the ambiguity, the circuit court allowed the parties to present parol evidence so that the court could determine the extent of the private easement. Based on the parol evidence, the circuit court found that the Pearco Partnership had made material misrepresentations to the Selway landowners, and the Partnership was therefore estopped from developing the "future use right-of-way" for anything other than a road for fire protection purposes. The circuit court further held that the actions by the County Commission were arbitrary and capricious and the denial of the Selway landowner's petition was reversed and remanded. Finally, the court held that Cummings was not a "proprietor" for purposes of SDCL 11-3-23.1, and therefore the "future use right-of-way" could be vacated without concern of prejudice to her or the Pearco Partnership.
[¶ 12.] Cummings appeals, raising four issues:
[¶ 13.] We affirm based on the first three Issues and as a result, need not address Issue 4.
STANDARD OF REVIEW
[¶ 14.] In the present case, Cummings failed to propose findings of fact and conclusions of law, and failed to object to the findings and conclusions proposed by Selway. Therefore, our review is significantly limited "to the question of whether the findings support the conclusions of law and judgment." Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991).
[¶ 15.] Cummings also failed to order a transcript of the circuit court proceedings.
Baltodano v. North Central Health Services, Inc., 508 N.W.2d 892, 894 (S.D.1993) (internal citations omitted).
[¶ 16.] Furthermore, with regards to a declaratory judgment action, we have held that this Court "`has an obligation to reach its legal conclusions independent from the conclusions reached by the trial court.' In addition, we review a trial court's findings of fact `under a clearly erroneous standard and its conclusions of law under a de novo standard.'" City of Rapid City v. Anderson, 2000 SD 77, ¶ 6, 612 N.W.2d 289, 291 (internal citations omitted).
[¶ 17.] Finally, our standard of review for appeals from a county commission decision is set forth in Coyote Flats L.L.C. v. Sanborn County Commission, 1999 SD 87, ¶ 7, 596 N.W.2d 347, 349.
Id. (further citations omitted).
ANALYSIS AND DECISION
[¶ 19.] The first question we must address is whether the Pearco Partnership "dedicated" the "future use right-of-way" to the public use. SDCL 11-3-12 sets forth the requirements and effect of dedicating land to the public by way of a plat.
[¶ 20.] We addressed the issue of a legally effective dedication in Knight v. Madison, 2001 SD 120, ¶ 5, 634 N.W.2d 540, 542. Dedication is similar to that of a contractual agreement between two parties. There must be an unconditional offer by the grantor to create a public highway and there must be an unconditional acceptance by the appropriate public entity that it becomes one. Tinaglia v. Ittzes, 257 N.W.2d 724, 728-729 (S.D.1977). "An easement may be dedicated to public use if the owner clearly acts to dedicate the easement and the public entity accepts the dedication." Knight, 2001 SD 120, ¶ 5, 634 N.W.2d at 542 (citing Tinaglia, 257 N.W.2d at 728-729). The requirement of public acceptance has both a common law and statutory basis. City of Belle Fourche v. Dittman, 325 N.W.2d 309, 311-312 (S.D. 1982).
[¶ 21.] We recently defined "dedication" in Bergin v. Bistodeau, 2002 SD 53, ¶ 16, 645 N.W.2d 252, 255-256.
Id. (internal citations omitted) (emphasis and bracketed portions in original). Words contained in a plat such as "dedicated as a 66 foot public right-of-way," "public highway" or "public road" are obvious terminology that the road has been offered by the land owner to be dedicated as a public highway per SDCL 31-1-1.
[¶ 22.] Limiting our review to the circuit court's findings of fact and conclusions of law we conclude that the circuit court was correct in its determination that the Selway Estates "future use right-of-way" was not expressly dedicated to the public use nor did Lawrence County as the governing public entity, accept it as dedicated. The main road was clearly dedicated by using the terms "dedicated" and "public." However, the "future use right-of-way" included neither of these terms. Instead, the "future use right-of-way" is further distinguished from the main road by the phrase "future use." If the creator of the plat had intended to dedicate this "future use right-of-way" to the public, that description would have included the same or similar language used to dedicate the main road.
[¶ 23.] Cummings would have us rely on Atlas Lumber Co. v. Quirk, 28 S.D. 643, 647, 135 N.W. 172, 174 (1912). In Atlas we held that "[w]here a plat of a town or city is made out and recorded, and lots are made and designated thereon with spaces left which fairly indicate that they are set apart to the public, the spaces thus indicated are presumptively streets." However, the presumptions indicated in Atlas do not control in this case. Presumptions such as this, are only that, and cannot survive convincing proof of contrary intent by a grantor. Herein, the "future use right-of-way" was not dedicated, and was set apart from the legally dedicated main road. Furthermore, the plat in Atlas included a certificate expressing an intention to dedicate the streets included on the plat. No such certificate was included with the Selway plat. Instead, the only dedication language is on the plat, and refers to the main road. Such dedication language was clearly omitted when the "future use right-of-way" was labeled on the disputed strip of realty.
[¶ 24.] Furthermore, because the "future use right-of-way" was not dedicated, it could not have been legally accepted by
[¶ 25.] Because the "future use right-of-way" was not dedicated, or accepted by a public entity, it is deemed a private easement. We therefore affirm the circuit court on Issue 1.
[¶ 27.] "Only when a plat is incomplete, ambiguous, or uncertain may surrounding circumstances and external evidence be considered for the purpose of determining the real intention of the platter." Tinaglia, 257 N.W.2d at 729. Because the circuit court found that the "future use right-of-way" was in fact a private easement, it allowed parol evidence to determine the extent of the easement.
[¶ 28.] We have held that the holder of a private easement has the right to limited use or enjoyment of the property only if it is consistent with the general use of the property by the owner, and "neither the physical size nor the purpose or use to which an easement may be put can be expanded or enlarged beyond the terms of the grant of the easement." Knight, 2001 SD 120, ¶ 6, 634 N.W.2d at 542.
[¶ 29.] The circuit court was correct in holding that the plat was silent as to the terms of the private easement, making the plat incomplete. Because the plat was incomplete, the trial court properly allowed parol evidence to determine the proper scope of the easement.
[¶ 30.] The circuit court found that Cummings was estopped from asserting that the "future use right-of-way" could be opened up to access her land to the east. We held in Taylor v. Tripp, 330 N.W.2d 542 (S.D.1983):
Id. at 545 (further citations omitted).
[¶ 31.] The circuit court held in its memorandum opinion,
[¶ 32.] We hold that the circuit court's decision was supported by its findings of fact.
[¶ 34.] Cummings next argues that vacation of the "future use right-of-way" would close or obstruct a public highway. She further argues that she is a "proprietor" in the Selway subdivision plat, and vacating the right-of-way would prejudice her by extinguishing property rights granted to her by statute. If these arguments were correct, each would be a violation of SDCL 11-3-17 and 23.1.
[¶ 35.] SDCL 11-3-17 provides:
(emphasis added). Furthermore, SDCL 11-3-23.1 provides:
[¶ 37.] The term "proprietor" is not defined in our code. The circuit court adopted the following definition of the term:
In the context of SDCL ch. 11-3 it appears to be an appropriate definition of the term.
[¶ 38.] With regards to whether Cummings is a proprietor within the Selway subdivision, it must be noted that at the time of this proceeding, she no longer owned any of the Selway property. It had all been previously sold to third parties. To conclude that she maintained her status as a "proprietor" solely because she had been a previous owner and participated in the creation of the plat would carry that status potentially into infinity with no basis to do so. She had previously sold her "rights and privileges" granted her under SDCL 11-3-17 and 23.1.
[¶ 39.] Moreover, the circuit court held that the disputed strip of land was created for the purpose of fire protection. It concluded that Cummings was estopped from asserting her claim that the easement is a public right-of-way.
[¶ 40.] The circuit court's conclusions of law are supported by its findings of fact. We agree that Cummings was not a proprietor within the meaning contemplated in SDCL 11-3-17 and 23.1. Therefore the circuit court did not err in vacating the disputed property labeled as "future use right-of-way."
[¶ 41.] Because of our decisions on Issues 1-3, we need not address "whether the circuit court erred in determining that the County Commission acted arbitrarily and capriciously in denying the petition to vacate when the vacation authorized the closing of a public highway laid out according to law in violation of SDCL 11-3-23.1." The circuit court did not err. We affirm.
[¶ 42.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.