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Becker v. Burleigh County
Supreme Court of North Dakota
March 13, 2019
Renee Becker, Rick Bischof, Jacqueline Bischof, Dr. Craig Lambrecht, Jewel Lambrecht, Dr. Josh Rampton, Dr. Karen Rampton, Todd Tescher, and Lindsey Tescher, Dr. Attas Boutrous, Tim Clausnitzer, Stacey Clausnitzer, Gary Hanson, Darlyne Hanson, Howard Malloy, Lori Malloy, Tony Masset, Gretchen Masset, John Miller, Dr. Brenda Miller, Kim Parson, Sharon Parson, John Shaffer, Mary Shaffer, James Volk, Catherine Volk and Dr. Josh Rampton and Dr. Karen Rampton, Plaintiffs
Burleigh County, Lincoln Township, and Burleigh County Water Resource District, Defendants and Appellees and Dr. Attas Boutrous, Tim Clausnitzer, Stacey Clausnitzer, Gary Hanson, Darlyne Hanson, Howard Malloy, Lori Malloy, Tony Masset, Gretchen Masset, John Miller, Dr. Brenda Miller, Kim Parson, Sharon Parson, John Shaffer, Mary Shaffer, James Volk, Catherine Volk, Dr. Josh Rampton and Dr. Karen Rampton, Plaintiffs and Appellants
from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
T. Foss (argued) and Stephen P. Welle (appeared), Fargo,
N.D., for plaintiffs and appellants.
K. Porsborg (argued) and Austin T. Lafferty (appeared),
Burleigh County Special Assistant State's Attorneys,
Bismarck, N.D., for defendants and appellees Burleigh County
and Lincoln Township.
R. Bliss, Bismarck, N.D., for defendant and appellee Burleigh
County Water Resource District.
Attas Boutrous and other landowners appeal from a judgment
dismissing their action against Burleigh County, its Water
Resource District, and Lincoln Township to halt a flood
protection project in the Fox Island subdivision in Bismarck,
denying their request for a preliminary injunction,
dismissing their inverse condemnation action, and ordering
them to pay Burleigh County and Lincoln Township $18, 756.75
in costs and disbursements. Because we conclude the district
court correctly applied the law and there are no genuine
issues of material fact, we affirm the judgment.
The Fox Island subdivision is located in Lincoln Township
("Township") in Burleigh County
("County"). Because the Township is unincorporated
and unorganized, it is governed by the Burleigh County Board
of County Commissioners with respect to roads, highways, and
bridges. See N.D.C.C. §§ 24-06-01 and
24-07-04(1). On April 5, 1994, the original owners of Fox
Island dedicated the streets in the subdivision to the
"public use forever":
[The] owners and proprietors of the property shown on the
annexed plat have caused that portion described hereon to be
surveyed and platted as "Fox Island subdivision" to
the City of Bismarck, North Dakota and do so dedicate streets
as shown hereon including all sewer, culverts, water and gas
distribution lines and other public utility lines, whether
shown hereon or not, to the public use forever.
They also dedicate easements to run with the land, for gas,
electric, telephone and other public utilities or services
under those certain strips of land designated hereon as
same day, the Board of County Commissioners "approved
the subdivision of land on the attached plat . . . [and]
accepted the dedication of all streets shown thereon."
The plat containing the dedication and County approval was
recorded with the register of deeds.
Flood events on the Missouri River in 2009 and 2011 prompted
Fox Island residents to request the Burleigh County Water
Resource District ("District") to devise a flood
mitigation project. The District conducted a public input
hearing to consider several alternatives and eventually chose
to build a levee which would be partially constructed by
raising public roadways within Fox Island by one to two feet.
The lead engineer and project manager for the District's
proposed flood control project explained:
The plan selected by the BCWRD, with the assistance and input
from the Fox Island Homeowners Association, included roadway
grade raises along Gallatin Loop, Gallatin Drive, and Far
West Drive, and would tie into a larger project that was
constructed performed [sic] by the City of Bismarck, which
included grade raises on Tavis Road, Mills Avenue, and
Riverwood Drive. Burleigh County and the City of Bismarck
jointly constructed the flood control gates and pump station
on the Tavis Road causeway.
Approximately 80 percent of the affected landowners voted in
favor of creating a special assessment district for the
project. On February 9, 2018, the County, on behalf of the
Township, granted the District "an easement over, upon
and in the land hereinafter described for the purpose of
constructing and maintaining an earthen flood control levee,
which includes a roadway grade raise and associated
modifications, for the purposes of protecting property on Fox
Island from the waters of the Missouri River."
On March 9, 2018, several landowners ("landowners")
whose properties abut the subdivision's streets commenced
this action challenging the legality of the project. They
contended that the original 1994 dedication of the property
only conveyed an easement to the public for travel rather
than for flood control, that the landowners own fee simple
title in the property to the middle of the street abutting
their property, and that the County and Township overstepped
their authority in granting the easement to the District. The
landowners also brought a claim for inverse condemnation and
requested a preliminary injunction to halt the project from
proceeding. They also moved for a temporary restraining
order, which was denied. The district court granted summary
judgment dismissing all of the landowners' claims and
ordered the landowners to pay the County and Township $18,
756.75 for their costs and disbursements.
The landowners argue the district court erred in granting
summary judgment dismissing their claims.
Our standard of review for summary judgments is well
Summary judgment is a procedural device under N.D.R.Civ.P.
56(c) for promptly resolving a controversy on the merits
without a trial if there are no genuine issues of material
fact or inferences that can reasonably be drawn from
undisputed facts, or if the only issues to be resolved are
questions of law. The party seeking summary judgment must
demonstrate there are no genuine issues of material fact and
the case is appropriate for judgment as a matter of law. In
deciding whether the district court appropriately granted
summary judgment, we view the evidence in the light most
favorable to the opposing party, giving that party the
benefit of all favorable inferences which can reasonably be
drawn from the record. A party opposing a motion for summary
judgment cannot simply rely on the pleadings or on
unsupported conclusory allegations. Rather, a party opposing
a summary judgment motion must present competent admissible
evidence by affidavit or other comparable means that raises
an issue of material fact and must, if appropriate, draw the
court's attention to relevant evidence in the record
raising an issue of material fact. When reasonable persons
can reach only one conclusion from the evidence, a question
of fact may become a matter of law for the court to decide. A
district court's decision on summary judgment is a
question of law that we review de novo on the record.
Dahms v. Nodak Mut. Ins. Co., 2018 ND 263, ¶ 6,
920 N.W.2d 293 (quoting Pettingerv.
Carroll, 2018 ND 140, ¶ ...