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Moody v. Sundley

Supreme Court of North Dakota

August 24, 2015

Larry Moody and Janice Moody, Plaintiffs and Appellees
v.
Dale Sundley, Defendant and Appellant

Page 492

Appeal from the District Court of Burke County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

Jordon J. Evert (argued) and Peter H. Furuseth (on brief), P.O. Box 417, Williston, N.D. 58802-0417, for plaintiffs and appellees.

Lisa M. Dynneson (argued) and Garth H. Sjue (appeared), P.O. Box 1206, Williston, N.D. 58802-1206, for defendant and appellant.

Lisa Fair McEvers, Carol Ronning Kapsner, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

OPINION

Page 493

McEvers, Justice.

[¶1] Dale Sundley appeals from a judgment quieting title to certain real property in favor of Larry and Janice Moody and dismissing Sundley's adverse possession counterclaim. Sundley argues the district court erred in finding he did not acquire ownership of the disputed property by adverse possession and failing to find the boundary of his property was established by acquiescence. We affirm.

I

[¶2] Sundley and the Moodys own adjacent real property in Burke County in the southeast quarter of the southwest quarter of section 23, township 159 north, range 94 west, north of a railroad right-of-way. The parties dispute the ownership of a portion of the east 540 feet of the southeast quarter of the southwest quarter of section 23, located west of a fence on land owned by the Moodys.

[¶3] In 1948, Nuell Herseth acquired by quit claim deed the southeast quarter of the southwest quarter of section 23, township 159 north, range 94 west, which includes the properties currently owned by Sundley and the Moodys. A building is located on Sundley's property that was previously used as a school and later as a township community center. It is not clear from the record how, but the Powers Lake Public School District acquired the property from Herseth. Evidence shows the School District conveyed the property to Battleview Township by warranty deed in 1974. The 1974 warranty deed described the property as, " A portion of of [sic] the SE1/4SW1/4 of Section 23, Township 159 North, Range 94 West, commonly called and known as the Battleview School

Page 494

and School Grounds[.]" The deed further provided, " this conveyance is made subject to the existing agreement between the School District and NUELL HERSETH, from whom the property was acquired." In 1986, Nuell Herseth conveyed the property to Battleview Township by quit claim deed. The deed described the property as, " All that portion of the SE1/4SW1/4 of Section 23, Township 159 North, Range 94 West, lying north of the Burlington Northern Railroad's right-of-way . . . except the east 540 feet thereof, according to the attached map. (1.5 acres more or less)"

[¶4] In 2001, Sundley acquired property by quit claim deed from Battleview Township. The deed described the property as, " All that portion of the SE1/4SW1/4 of Section 23, Township 159 North, Range 94 West, lying north of the Burlington Northern Railroad's right-of-way . . . except the east 540 feet thereof, according to the attached map. (1.5 acres more or less)"

[¶5] In 1989, Herseth conveyed the east 540 feet of the southeast quarter of the southwest quarter of section 23 to Daniel Schroeder by quit claim deed. In 2005, the Estate of Daniel Schroeder conveyed the property by personal representative's deed of distribution to Eugene Schroeder, Daniel Schroeder's father. In 2006, Eugene Schroeder conveyed the property to the Moodys by warranty deed, which described the property as:

TOWNSHIP 159 NORTH, RANGE 94 WEST

SECTION 23: The East 540 feet of the SE1/4SW1/4 lying North of the Burilington [sic] Northern Railway

[¶6] In June 2012, the Moodys sued Sundley, alleging Sundley was trespassing on their property. The Moodys claimed Sundley placed two modular homes, sheds, and a septic tank on their property and refused to remove the items. They requested the district court order Sundley to remove his property and to award damages. Sundley answered and counterclaimed for adverse possession, claiming his predecessors-in-interest adversely possessed the disputed property for more than twenty years and the disputed property was part of the property he purchased from Battleview Township.

[¶7] A bench trial was held, and the parties submitted post-trial briefs. Sundley argued a governmental entity can adversely possess real property in the same manner as a private party, the School District possessed the disputed property from 1951 until 1974 and acquired the property by adverse possession under N.D.C.C. § § 28-01-10 and 28-01-11, and the School District conveyed its interest in " the Battleview School and School Grounds" to Battleview Township by the 1974 recorded warranty deed. He alternatively argued Battleview Township acquired ownership of the disputed property under N.D.C.C. § § 28-01-08 and 28-01-09, the township had a deed for " the Battleview School and School Grounds," the disputed property is part of the school grounds, the township possessed the disputed property from 1974 until 2001, and therefore the township acquired ownership of the disputed property. Sundley also argued the township acquired the property by adverse possession under N.D.C.C. § § 28-01-10 and 28-01-11, or the township acquired ownership of the property by adverse possession under N.D.C.C. § 47-06-03.

[¶8] The district court quieted title to the disputed property in favor of the Moodys and dismissed Sundley's counterclaim. The court found the Moodys are the legal owners of the disputed property and Sundley failed to meet his ...


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