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Lincoln Land Development, LLP v. City of Lincoln

Supreme Court of North Dakota

March 15, 2019

Lincoln Land Development, LLP, Plaintiff and Appellee
v.
City of Lincoln, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

          Paul 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.

          OPINION

          CROTHERS, JUSTICE.

         [¶1] 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.

         I

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         II

         [¶5] 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 action.

         [¶6] 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.

         [¶7] Section 47-05-02.1, N.D.C.C., requires an easement is properly described:

"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 ...

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