from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
R. Sanderson (argued) and William J. Behrmann (on brief),
Bismarck, ND, for plaintiff and appellee.
Randall J. Bakke (argued) and Bradley N. Wiederholt
(appeared), Bismarck, ND, for defendant and appellant.
The City of Lincoln appeals from a district court's
amended judgment awarding damages and attorney fees for
taking land owned by Lincoln Land Development, LLP. We affirm
the taking decision, award of attorney fees, and remand to
consider awarding attorney fees on appeal.
In the mid-1980s the City of Lincoln established a narrow,
two-tire-track dirt road over private property to access its
wastewater treatment site. In 2005 Lincoln Land Development
purchased the property. In 2011 the City improved the dirt
road by raising the road profile, widening the road top,
constructing ditches, installing culverts and completing
gravel resurfacing to standardize the width and height of the
road. The City did not obtain permission from Lincoln Land
Development before commencing the improvement project and did
not initiate eminent domain proceedings.
Lincoln Land Development sued the City in February 2015 for
inverse condemnation, trespass and nuisance relating to the
City's 2011 improvement of the road. Lincoln Land
Development moved to amend its complaint to assert claims
relating to increased surface water drainage and damages
caused by stormwater retention. The City denied a taking
occurred and raised affirmative defenses, including claiming
a public easement through prescriptive use, the existence of
an express or implied easement, an easement by estoppel, or a
government mandate required the project.
The district court found Lincoln Land Development's
claims of nuisance and trespass were time-barred and
dismissed them with prejudice in March 2015. In September
2017 a bench trial was held and claims based on increased
surface water drainage, wetlands and stormwater retention
ponds were dismissed. At the conclusion of the bench trial,
the district court found that the City established a
prescriptive easement in the pre-2011 road and that a taking
occurred when additional property was used in the 2011 road
improvement. A jury subsequently determined the value of the
taking was $8, 924.00 plus interest. The district court
subsequently granted Lincoln Land Development's motion
for attorney fees of $122, 705.50. The City appeals.
The City argues no taking occurred because a permanent
easement by implication, estoppel or an express grant of a
right-of-way existed starting in the 1980s, which allowed the
2011 road improvement project to proceed without further
An easement is an interest in land granting the right to use
or control the land for a specific purpose. Wagner v.
Crossland Constr. Co., Inc., 2013 ND 219, ¶ 6, 840
N.W.2d 81. An easement may be created by an express grant or
reservation contained in a written instrument, or may arise
by implication under the facts and circumstances of a
particular case. Id. An easement by estoppel exists
when the owner of the servient estate permits another to use
the land under foreseeable circumstance, the user relied on
that belief, and injustice can be avoided only by
establishment of the servitude. Hager v. City of Devils
Lake, 2009 ND 180, ¶ 48, 773 N.W.2d 420. The
district court's underlying findings of fact in easement
cases are subject to the clearly erroneous standard of
review, but whether the underlying facts support the
existence of an implied easement is a question of law subject
to de novo review. Wagner, 2013 ND 219, ¶ 17,
840 N.W.2d 81.
Section 47-05-02.1, N.D.C.C., requires an easement is
"Real property easements, servitudes, or any
nonappurtenant restrictions on the use of real property,
which become binding after July 1, 1977, shall be subject to
the requirements of this section. These requirements are
deemed a part of any agreement for such interests in ...