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Gray v. Berg

Supreme Court of North Dakota

August 24, 2015

David B. Gray, Plaintiff and Appellant
v.
Terry Berg, Defendant and Appellee

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

David B. Gray, self-represented, Bismarck, ND, plaintiff and appellant.

Laura C. Ringsak (argued) and William C. Severin (appeared), Bismarck, ND, for defendant and appellee.

Gerald W. VandeWalle, C.J., Daniel J. Crothers, Carol Ronning Kapsner, Lisa Fair McEvers, Daniel D. Narum, D.J. Opinion of the Court by VandeWalle, Chief Justice. The Honorable Daniel D. Narum, D.J., sitting in place of Sandstrom, J., disqualified.

OPINION

Page 379

Gerald W. VandeWalle, Chief Justice.

[¶1] David Gray appealed from a final judgment dismissing his claims with prejudice against Terry Berg for unlawful hunting on posted land, unlawful hunting near occupied buildings, and trespass. We reverse the judgment and remand for further proceedings.

I

[¶2] The following facts come from testimony at trial and findings of the district court. Gray owns property located adjacent to property owned by Berg. On October 27, 2013, Berg shot a deer in season on his property. That deer traveled onto Gray's property. Berg entered Gray's property unarmed to recover the deer. He was unable to locate the deer.

[¶3] The following day, Berg entered Gray's property again with the company of his son and Cole Giese in an attempt to locate the deer. They failed to locate the deer. Giese approached Gray's home seeking permission to search closer to his residence. Gray refused to give permission to search. On November 1, Gray posted no trespass or hunting signs on his property, and Berg's subsequent requests to search the property were all denied.

[¶4] Berg contacted the North Dakota Game and Fish Department for assistance in entering onto the property to locate the deer. Game Warden Jackie Lundstrom contacted Gray informing him that she and Berg would be entering his property. On December 23, they entered Gray's property. Gray demanded they leave and contacted the Burleigh County Sheriff's office. Burleigh County Sheriff's deputies responded and did not remove Lundstrom or Berg. A short search was conducted, but no deer was found.

[¶5] Gray filed a complaint alleging Berg entered upon his legally posted property for the purpose of hunting and pursuing deer in violation of North Dakota statute. He sought monetary relief for the use of his property, costs and fees, and injunctive relief to prevent further trespass and hunting activities. He also sought to invalidate N.D.C.C. § 20.1-01-19.

[¶6] Prior to trial, Gray filed a demand for a change of judge, alleging that Judge Gail Hagerty was biased, that she had ex parte communications with possible witnesses, and that she ordered those witnesses to not communicate with Gray but provided him with no notice of such an order. Judge James Hill denied the demand stating it was not timely made under N.D.C.C. § 29-15-21.

[¶7] At the bench trial, Berg moved for a directed verdict. The district court granted the motion finding that Gray provided insufficient evidence of any trespass or damages occurring in this matter. In its findings of fact and conclusions of law, the district court found Berg had lawfully entered Gray's property to recover game shot on his property under Section 20.1-01-19, and had acted reasonably throughout the attempts to recover the deer. The court also found that ...


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