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Township v. Pfingsten

Supreme Court of North Dakota

March 8, 2018

Owego Township, Plaintiff and Appellee
v.
Leon Pfingsten, Defendant and Appellant

         Appeal from the District Court of Ransom County, Southeast Judicial District, the Honorable Jay A. Schmitz, Judge.

          Amy M. Clark (argued) and Janel B. Fredericksen (appeared), Wahpeton, ND, for plaintiff and appellee.

          Scott P. Brand, West Fargo, ND, for defendant and appellant.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 1] Leon Pfingsten appeals from a district court order granting Owego Township's motion to dismiss an appeal. We affirm the order.

         I

         [¶ 2] On March 27, 2015 several Owego Township residents petitioned for alteration of what is known as Bagoon Road. In April 2015 the Township sued Pfingsten to have that portion of Bagoon Road on Pfingsten's property declared a public road by prescriptive easement, to prevent Pfingsten from claiming any adverse interest in the road and to have damages awarded for Pfingsten's intentional injury to the road. The Township also sought access to Pfingsten's property for surveying. Pfingsten counterclaimed for trespass. The district court entered a stipulated order providing that the Township had the right to survey Pfingsten's land before December 31, 2016 and, upon completion of the survey, the Township would proceed with a taking action. The district court stayed the action until December 31, 2016.

         [¶ 3] On September 26, 2016, the Township acted on the March 2015 petition and adopted and filed with the Township Clerk an order to alter highway and a statement of damages. The order to alter highway changed the location of Bagoon Road on Pfingsten's property. The order included a legal description of two acres of Pfingsten's land to be taken by the Township for relocation of Bagoon Road. The statement of damages valued Pfingsten's two acres at $9, 000. Pfingsten did not appeal the Township's award of damages. On December 3, 2016 the Township adopted a confirmation of order to alter highway and confirmation of statement of damages. On December 22, 2016 Pfingsten received a $9, 000 check from the Township. He appealed to the district court on January 19, 2017. The Township moved to dismiss the appeal. The district court ruled that Pfingsten's appeal was untimely under N.D.C.C. §§ 24-07-22 and 28-34-01 and granted the Township's motion to dismiss the appeal.

         II

         [¶ 4] Pfingsten argues the district court erred by concluding his appeal was untimely under N.D.C.C. §§ 24-07-22 and 28-34-01. The parties do not dispute the facts material to our decision. When jurisdictional facts are not disputed, a district court's subject matter jurisdiction over an appeal from a local governing body is a question of law, which we review de novo. Garaas v. Cass Cty. Joint Water Res. Dist., 2016 ND 148, ¶ 6, 883 N.W.2d 436.

         [¶ 5] Chapter 24-07, N.D.C.C., regulates proceedings for opening and vacating certain highways. Section 24-07-04 provides counties and townships with authority over their roads:

"Except as otherwise provided in this title, all proceedings for the opening, vacating, or changing of a highway outside of the limits of an incorporated city, including the acquisition of right of way when necessary, must be under the charge and in the name of:
* * * *
(2) The board of township supervisors of an organized township."

         [¶ 6] On March 27, 2015 several Township residents filed a petition for alteration of road with the Township. Under N.D.C.C. § 24-07-05, that petition initiated the process authorized in the remainder of chapter 24-07. On May 24, 2016 the Township issued a resolution of necessity:

"1. The road described above should be altered for the purpose of addressing erosion concerns.
2. Access to property adjacent to the road is necessary for the purpose of examining, surveying, and mapping the area where the road should be altered.
3. Owego Township shall make out an accurate description of the highway to be altered and shall incorporate the same in an order to be signed by the members of the board and filed with the township clerk. At such time, Owego Township shall also ascertain the amount of damages to be awarded to the landowner."

         [¶ 7] On September 26, 2016 the Township acted on the petition and issued an order to alter highway. That order stated:

"1. Owego Township has authority to alter highways pursuant to Chapter 24-07 of the North Dakota Century Code.
2. All required notices have properly been given as required by Chapter 24-07 of the North Dakota Century Code.
3. The Bagoon Road shall be altered so that the portion of the Bagoon Road lying next to the river in the Southwest Quarter (SW1/4) of Section 9, in Township 135, Range 53, Ransom County, North Dakota is moved to the North. The legal description attached as Exhibit A shall be the new location of the road."

         [¶ 8] The order was filed with the Township Clerk the same day it was issued. The process followed for entry and filing the order was consistent with N.D.C.C. § 24-07-14:

"Whenever... the board of township supervisors shall lay out, alter, or discontinue any highway, it shall cause a survey thereof to be made when necessary, and it shall make out an accurate description of the highway so altered, discontinued, or laid out, and shall incorporate the same in an order to be signed by the members of such board, and shall cause such order, together with all the petitions and affidavits of service and posting of notices to be filed... in the office of the township clerk, ..."

         [¶ 9] Under N.D.C.C. § 24-07-14, after the Township's records are filed with the Clerk, the Clerk must wait at least thirty days before taking further action on the matter. Specifically, the "township clerk may not record such order within thirty days, nor until a final decision is had, and not then unless such order is confirmed." Id.

         [¶ 10] Along with the order to alter highway, on September 26, 2016 the Township issued and filed a statement of damages that concluded "[t]he amount of damages awarded to Mr. ...


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