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Thompson v. E.I.G. Palace Mall, LLC

Citation. 657 N.W.2d 300 (S.D. 2003)
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Brief Fact Summary.

E.I.G. Palace Mall, LLC (EIG) sued Thompson when Thompson’s restaurant opposed alternative use of a public parking lot by EIG due to a prescriptive and implied easement right exercised by the restaurant.

Synopsis of Rule of Law.

An easement can exist whether or not it is expressly created.


Thompson owned a restaurant next to a parking lot owned by E.I.G. Palace Mall, LLC (EIG). The restaurant was often used by restaurant patrons and food delivery trucks for the restaurant. EIG sought to use the parking lot for other reasons but the restaurant opposed it because they claimed to have a prescriptive easement that allowed them to use the part of the parking lot for restaurant purposes. EIG claimed that because the restaurant was for public use, the restaurant did not meet the open and notorious standard for a prescriptive right. The restaurant claimed that they had an implied easement as well because the parking lot was the only avenue by which delivery trucks could deliver to the restaurant. Summary judgment was granted to EIG.


Whether an easement can exist if it was not expressly created?


Yes. A prescriptive easement was not created because there was no way for EIG to receive notice that there was adverse use of the lot, as the lot was open to members of the public. The lower court’s ruling on the prescriptive easement is affirmed. An implied easement may have been created because large delivery trucks could only access the restaurant through the lot. The issue of an implied easement is remanded.


An easement can exist whether or not it is expressly created. A non-express easement can be classified as a prescriptive easement or an implied easement. A prescriptive easement occurs when a party makes use of the land adverse to the landowner’s interests. Implied easements occur through two forms: implied by necessity and implied by prior use. Easements by necessity when a grantor conveys a portion of land that it landlocked by property owned by the landowner. Easement implied by prior use exist when an owner uses part of the property to benefit another part of the property.

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