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Ralph Howard and Patricia Howard v. William K. Trotter and Carla K. Trotter

December 18, 2012

RALPH HOWARD AND PATRICIA HOWARD,
PLAINTIFFS AND APPELLEES
v.
WILLIAM K. TROTTER AND CARLA K. TROTTER, KEVEN BUEHNER AND CHERYL BUEHNER, AND CODY BUEHNER,
DEFENDANTS
WILLIAM K. TROTTER AND CARLA K. TROTTER, KEVIN BUEHNER AND CHERYL BUEHNER,
APPELLANTS



Appeal from the District Court of Dunn County, Southwest Judicial District, the Honorable Zane Anderson, Judge.

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

N.D. Supreme CourtHoward v. Trotter, 2012 ND 258

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

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AFFIRMED AND REMANDED.

Opinion of the Court by Maring, Justice.

Howard v. TrotterNo. 20120221

[¶1] William and Carla Trotter and Kevin and Cheryl Buehner appeal from a judgment declaring Trotter Road a public highway and awarding Ralph and Patricia Howard damages. We conclude the trial court did not clearly err in finding a public road existed and awarding the Howards damages. We affirm the judgment, but we remand for entry of an amended judgment consistent with this opinion.

I

[¶2] In 1984, the Howards purchased the E 1/2 NW 1/4 and the W 1/2 NE 1/4 of Section 12, Township 146, Range 94 West, Dunn County. In 2006, the Trotters purchased Section 1, Township 146, Range 94 West, Dunn County immediately to the north of the Howards' land. Prior to the Trotters' purchase of Section 1, Frieda Buehner owned Section 1, but leased the land to Gene Buehner.

[¶3] The road in dispute, also known as "Trotter Road" runs from the western edge of Section 12, along the southern edge of the Trotters' land, to the eastern edge of Section 12. The section line crosses two deep ravines making the section line impassable. Presently, at those ravines, Trotter Road deviates from the section line to the north entering the Trotters' land. Since 1984, the Howards have used Trotter Road to access their farmland. In 1986 or 1987, Gene Buehner built a dam along Trotter Road at the western most deviation. This was done because the road had frequently been washed away by high water traveling through the ravine. In the fall of 2009, the road had become increasingly narrow due to high water. The width of the road made it impossible for the Howards to access their farmland with heavy farm equipment, which had previously not been a problem. Also in the fall of 2009, the Trotters erected steel poles across Trotter Road further preventing the Howards from accessing their farmland.

[¶4] In March 2011, the Howards sued the Trotters and Buehners seeking injunctive relief and money damages. The Howards alleged the Trotters and Buehners improperly denied them access to their farmland. They alleged that Trotter Road was a public highway, or in the alternative, the Howards had a right to access the road by a prescriptive easement. The Howards requested the obstructions be removed from Trotter Road, and the Trotters and Buehners be liable for damages as a result of obstructing the road.

[¶5] At trial, the Howards presented evidence that the Dunn County Board of Commissioners established Trotter Road as a public highway. They offered into evidence a certified copy of the petition and order establishing a public highway between Section 1 and 12. The Dunn County Board of Commissioners ordered the road to be 66 feet wide "beginning at the northeast corner of section 12-146-94 thence west one mile to the northwest corner of the same section and there ending." The Howards called numerous witnesses who testified that, as early as the 1940s, the section line deviated northward at the deep ravines. The Howards also offered into evidence a 1960 North Dakota Department of Transportation map that indicated Trotter Road was a primitive road. Gene Buehner testified that the installation of the dam did not change the location of Trotter Road, but merely raised the road level. Patricia Howard also testified that because the Trotters placed obstructions across Trotter Road, they were no longer able to access their pasture land. As a result, they were unable to remove their hay crop in 2009. She testified that they had to purchase additional hay and rent pasture land in 2009, 2010, and 2011.

[ΒΆ6] The trial court found Trotter Road to be a public highway as established by the Dunn County Board of Commissioners. Alternatively, the trial court found that if Trotter Road was not a public highway, then the Howards had proven the elements of a prescriptive easement and were entitled to use and access ...


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