Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable David W. Nelson, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
N.D. Supreme CourtNiles v. Eldridge, 2013 ND 52
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by VandeWalle, Chief Justice.
[¶1] Joan Eldridge appealed from a district court judgment finding Lloyd Lester, Rex Niles, and Kyle Dragseth each own a 1/4 interest in a well on Eldridge's property and an easement over the land affected by pipelines from the well to each of their houses. We affirm. I.
[¶2] In 1981, Lloyd Lester, Herman Johnson, and Karl Langwald, who were contiguous land owners, agreed to dig an artesian well to supply water to all three properties. They agreed to share the costs of digging the well and running pipelines to all three homes. The well was dug on Herman Johnson's land, and pipelines were run across Johnson's land to all three houses. Lloyd Lester was the only party to the original agreement who testified at the trial. He testified he believed the agreement was that they each owned an equal interest in the well. Lester testified, with documentation, that each party paid $3635.22 for their share of the cost of drilling the well. This apparently did not include the cost of running the pipelines. Lester testified that the parties never discussed whether there was an easement over the land, and the agreement was never reduced to a writing.
[¶3] In 1985, Herman Johnson's daughter, Joan Eldridge, took possession of Johnson's land. At some point after that, Rex Niles purchased a piece of Eldridge's land, and Langwald sold his land to Kyle Dragseth. Niles expressed interest in also drawing water from the well, and paid $908.74 each to Lester, Eldridge, and Dragseth to compensate for the original cost of drilling the well. The total amount paid by Niles, $2726.22, is almost exactly a quarter of the total cost of drilling the well. Niles paid for the whole cost of running a pipeline from the well to his house. Eldridge testified that she believed the money she received was compensation for the damage to her land for building the pipeline.
[¶4] Plaintiffs Lester, Niles, and Dragseth asked Eldridge to sign an agreement stating they have an easement over her land for a pipeline. Eldridge refused, and the plaintiffs brought a declaratory judgment action arguing that an easement was implied in the agreement to dig the well and run the pipelines. Eldridge resisted the lawsuit, arguing that because there was no agreement in writing granting the plaintiffs an easement, the action was barred by the Statute of Frauds. Eldridge argued there was no agreement concerning the use of the land, and therefore, as a matter of law, the relationship should be considered a license. The plaintiffs countered that the contract was taken out of the Statute of Frauds by part performance because they paid valuable consideration, took possession, and made significant improvements on the land.
[¶5] After a bench trial, the district court held the agreement was taken out of the Statute of Frauds by virtue of part performance and the agreement granted plaintiffs an easement. II.
[¶6] Eldridge argues the district court erred by finding there was an oral agreement giving Niles, Lester, and Dragseth partial ownership of the well and an easement over the land affected by the pipeline from the well, and erred by finding the agreement was removed from the Statute of Frauds by partial performance.
In an appeal from a bench trial, the trial court's
findings of fact are reviewed under the clearly erroneous standard of
N.D.R.Civ.P. 52(a) and its conclusions of law are fully reviewable.
Fargo Foods, Inc., v. Bernabucci, 1999 ND 120, ¶ 10, 596 N.W.2d
38. A finding of fact is clearly erroneous if it is induced by an
erroneous view of the law, if there is no evidence to support it, or
if, after reviewing all the evidence, we are left with a definite and
firm conviction a mistake has been made. Moen v. Thomas, 2001
ND 95, ¶ 19, 627 N.W.2d 146. "In a bench trial, the trial court is
'the determiner of credibility issues and we do not second-guess the
trial court on its credibility determinations.'" Id. at ¶ 20.
Fladeland v. Gudbranson, 2004 ND 118, ¶ 7, 681
[¶7] Eldridge argues the district court erred by finding the oral agreement was taken out of the Statute of Frauds by part performance because it did not discuss whether the improvements unmistakably point to the existence of an easement, rather than a license, as required by Fladeland. She argues the agreement in this case is also consistent with a license. At trial, Eldridge did not argue that the arrangement was factually consistent with a license. Rather, Eldridge argued there was no specific oral agreement for an easement, and therefore, by operation of law, the relationship was a license. At trial, Eldridge did not point to any facts that make the relationship consistent with a license. When the attorney for the plaintiffs attempted to elicit facts on cross-examination from Eldridge about her argument that the arrangement was a license, Eldridge's attorney objected, stating this was a legal argument, not a factual argument. But, Eldridge cannot claim at trial there is no factual argument that the arrangement was a license, thus preventing the plaintiffs from cross-examination on the issue, and on appeal claim that the arrangement was factually consistent with a license. "We do not address issues raised for the first time on appeal." Heng v. Rotech Medical Corp., 2006 ND 176, ¶ 9, 720 N.W.2d 54. "Issues or contentions not adequately developed and presented at trial are not properly before ...