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Mckenzie County, A North Dakota Municipality v. Deborah Reichman A/K/A Deborah Stonecipher

January 24, 2012

MCKENZIE COUNTY, A NORTH DAKOTA MUNICIPALITY,
PLAINTIFF AND APPELLEE
v.
DEBORAH REICHMAN A/K/A DEBORAH STONECIPHER,
DEFENDANT AND APPELLANT



Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Gerald H. Rustad, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

N.D. Supreme Court

McKenzie Co. v. Reichman,

2012 ND 20

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Deborah Reichman appealed from a judgment granting McKenzie County a prescriptive easement for a road that crosses her land and ranch headquarters in McKenzie County and dismissing her counterclaim for inverse condemnation. We conclude the district court did not clearly err in finding an adverse public use of the road for the prescriptive period. We affirm the court's formal declaration for a prescriptive road, but we remand for the court to provide a description for the road.

I

[¶2] In 2006, McKenzie County sued Reichman, alleging a road that crosses her land and ranch headquarters in McKenzie County had been used by the public in an open, general, continuous, and uninterrupted manner for at least 20 successive years and seeking a prescriptive easement and formal declaration as a public road under N.D.C.C. § 24-07-01. The road, which the parties call "Flat Rock Road" or "Flat Top Rock Road," generally runs southeast from State Highway 16 before it enters Reichman's ranch's north boundary and passes through her land and ranch headquarters in a southern direction. According to Reichman, the public's use of the road through her ranch significantly increased after she purchased the ranch in 2000, including an increase in traffic attributable to the oil industry, and she sought to restrict public use of the road. The district court granted McKenzie County's ex parte motion for a temporary restraining order to restrict Reichman from interfering with public use of the road while the action was pending. After a hearing on the temporary restraining order, the court allowed Reichman to continue to use the road as needed for her livestock operation and permitted the County to maintain the road.

[¶3] Reichman thereafter answered, denying the road was a public road and claiming that after she purchased the ranch in 2000, she continuously exercised ownership rights and control over the road, including placing gates or cattle guards across the road as part of her livestock operation. She claimed any public use of the road was permissive, and there had been no continuous, adverse, hostile, and uninterrupted use of the road for the prescriptive 20-year period. She counterclaimed for damages for inverse condemnation, and she also sought damages for responding to McKenzie County's alleged improper conduct in bringing an ex parte motion for a temporary restraining order.

[¶4] At trial, McKenzie County presented evidence from prior owners of Reichman's ranch and from residents from the surrounding area and County employees. According to Robert Olson, a neighbor who lived with his parents about two miles south of the ranch from 1920 until 1952 when he moved to a location about one mile north of the ranch, there had been an unimproved one-vehicle trail through the ranch, and in the early 1950s, he and other residents in the area, including Reichman's predecessor in interest, Emmet Krueger, asked McKenzie County to construct a road on the trail to facilitate travel. Olson testified McKenzie County constructed a graded road on the trail about two months later with the knowledge and consent of the adjacent landowners, including Krueger, and the County provided maintenance for the road, including grading, plowing snow, placing scoria on the road, and installing culverts and bridges. Olson testified he traveled the road several times a week and the road was only blocked for short periods when ranchers moved livestock. According to Olson, there were some gates on the road going north from the ranch to County Road 16, but those gates were replaced with car passes, which other witnesses referred to as cattle guards and one witness testified were the same thing as cattle guards, within a year after McKenzie County constructed the road. Olson testified any use of gates across the road was to control livestock and not to prevent the public's free use of the road.

[¶5] Vernon and Fern Goldsberry purchased the ranch in 1967, and Vernon Goldsberry redesigned the ranch into its current configuration in 1974 to include a series of corrals and stud runs on the ranch headquarters, with the Flat Top Rock Road separating the corrals, stud runs, and pastures. According to Reichman, she and previous ranch owners used the road and gate panels across the road to funnel livestock into the centrally located corrals at the ranch headquarters. According to Fern Goldsberry and Robert Olson, the gate panels were used to move livestock, were not locked, and were placed across the road for a half hour to an hour two to three times per year. After Vernon Goldsberry died, Dennis Yochim purchased the ranch from Fern Goldsberry in 1981, and he reconveyed the ranch to her in 1984, but he stayed on the ranch under a management contract with her until she sold the ranch to Ed Priddy in 1995. According to Yochim, he used temporary gates and corral panels across the road to move livestock between corrals and pastures, but he did not prevent the public from using the road, and he observed the general public using the road on a daily basis. Priddy owned the ranch from 1995 until 2000, and he testified he placed gates on the road two or three times a year for about twenty minutes to move livestock, but he reopened the gates when he was finished. Priddy sold the ranch to Reichman in December 2000.

[¶6] According to Reichman, she consistently used the road and panels and gates across the road in her livestock operation after she purchased the ranch from Priddy. She testified the road within her ranch boundary was narrower and was not maintained to the same extent as the road outside her ranch boundary. Reichman presented evidence there were some permanent gates across the road in several locations until car passes were placed on the road, and prior landowners in the area consistently placed gates on the road as necessary for their cattle operations. According to Reichman, the road is an integral part of her ranch operation, Priddy had told her the road was part of the ranch, and the road physically changes at cattle guards at the north and south boundaries of her ranch. She also testified McKenzie County significantly altered the road after she purchased the ranch in 2000.

[¶7] Several McKenzie County employees testified about the extent of County maintenance for the road, including grading and blading the road, placing scoria on it, plowing snow, fixing drainage, replacing narrow car passes with wider car passes, cleaning out existing car passes, spraying cattle guards, and mowing the road. McKenzie County also presented evidence that the trail or road existed on a 1901 survey map, a 1936 and a 1942 map of McKenzie County, a 1942 soil survey map, a 1966 Midland Atlas, and a bridge inventory map published by the State.

[¶8] After trial, the district court granted McKenzie County a prescriptive easement and declared Flat Top Rock Road to be a public road as it presently existed. The court found McKenzie County constructed the road at its expense in the 1950s, when, at the request of the public, it converted a known trail to a constructed, scoria road that continued to be maintained by McKenzie County as a public roadway at its expense, including placing culverts, installing car passes and cattle crossings, grading and spreading scoria, and plowing snow. The court found the construction and location of the road was with the knowledge of the adjacent landowners, including the prior owner of Reichman's land. The court said the 20-year period for calculating a prescriptive use began when the road was constructed by McKenzie County, if not before. The court also found adjacent landowners and the prior owners of Reichman's ranch used temporary fencing to assist their ranching operations, which did not restrict the free flow of traffic on the road other than a few times per year for short periods. The court said the prior landowners' use of the road did not reserve the landowners' right to restrict public usage and found McKenzie County had proven by clear and convincing evidence that a prescriptive easement existed for the road and the County's use was adverse to the interest of Reichman and her predecessors in interest. The court thereafter dismissed Reichman's counterclaim for damages for inverse condemnation and for damages for McKenzie County's claimed improper conduct in bringing an ex parte motion for a temporary restraining order.

II

[¶9] Reichman argues the district court erred in granting McKenzie County a prescriptive easement for the road because the court failed to correctly calculate the 20-year period for a prescriptive easement backward from when McKenzie County began the lawsuit in 2006. She argues the County did not clearly and convincingly establish adverse use during that period, because the adjacent landowners, including her predecessors in interest, blocked the road for their ranching operations and any public use of the road was not continuous and uninterrupted. She contends she had no notice the County was claiming a legal interest in the road. She asserts the County failed to make a timely claim for the road and its claim should be barred by laches, or by N.D.C.C. § 28-01-04, which precludes actions "for the recovery of real property or for the possession thereof" unless the plaintiff "was seized or possessed of the premises in question within twenty years before the commencement of such action."

[¶10] Section 24-07-01, N.D.C.C., "embodie[s]" the common law rule for establishing a road by prescription in North Dakota, see Berger v. Berger, 88 N.W.2d 98, 100 (N.D. 1958), and provides:

All public roads and highways within this state which have been or which shall be open and in use as such, during twenty successive years, hereby are declared to be public roads or highways and confirmed and established as such whether the same have been laid out, established, and opened lawfully or not.

[¶11] A party claiming a road by prescription under N.D.C.C. § 24-07-01, must establish by clear and convincing evidence the general, continuous, uninterrupted and adverse use of the road by the public under a claim of right for 20 years. Home of Economy v. Burlington N. Santa Fe R.R., 2007 ND 127, ¶ 14, 736 N.W.2d 780; Fischer v. Berger, 2006 ND 48, ¶ 7, 710 N.W.2d 886; Hartlieb v. Sawyer Twp. Bd., 366 N.W.2d 486, 488 (N.D. 1985); Mohr v. Tescher, 313 N.W.2d 737, 739 (N.D. 1981); Backhaus v. Renschler, 304 N.W.2d 87, 89 (N.D. 1981); Berger, 88 N.W.2d at 100.

[ΒΆ12] In Berger, 88 N.W.2d at 100-03 (citations omitted), this Court, in the context of a de novo review of a trial court decision granting a prescriptive easement for a road, discussed the kind of adverse ...


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