Howard v. Trotter

2012 ND 258, 825 N.W.2d 857, 2012 WL 6582508, 2012 N.D. LEXIS 264
North Dakota Supreme Court·Decided December 18, 2012·No. No. 20120221·Published

Opinion

MARING, Justice.

[¶ 1] William and Carla Trotter and Kevin and Cheryl Buehner appeal from a judgment declaring Trotter Road a public highway and awarding Ralph and Patricia Howard damages. We conclude the trial [859]*859court did not clearly err in finding a public road existed and awarding the Howards damages. We affirm the judgment, but we remand for entry of an amended judgment consistent with this opinion.

I

[¶ 2] In 1984, the Howards purchased the E 1/2 NW 1/4 and the W 1/2 NE 1/4 of Section 12, Township 146, Range 94 West, Dunn County. In 2006, the Trotters purchased Section 1, Township 146, Range 94 West, Dunn County immediately to the north of the Howards’ land. Prior to the Trotters’ purchase of Section 1, Frieda Buehner owned Section 1, but leased the land to Gene Buehner.

[¶3] The road in dispute, also known as “Trotter Road” runs from the western edge of Section 12, along the southern edge of the Trotters’ land, to the eastern edge of Section 12. The section line crosses two deep ravines making the section line impassable. Presently, at those ravines, Trotter Road deviates from the section line to the north entering the Trotters’ land. Since 1984, the Howards have used Trotter Road to access their farmland. In 1986 or 1987, Gene Buehner built a dam along Trotter Road at the western most deviation. This was done because the road had frequently been washed away by high water traveling through the ravine. In the fall of 2009, the road had become increasingly narrow due to high water. The width of the road made it impossible for the Howards to access their farmland with heavy farm equipment, which had previously not been a problem. Also in the fall of 2009, the Trotters erected steel poles across Trotter Road further preventing the Howards from accessing their farmland.

[¶ 4] In March 2011, the Howards sued the Trotters and Buehners seeking injunc-tive relief and money damages. The How-ards alleged the Trotters and Buehners improperly denied them access to their farmland. They alleged that Trotter Road was a public highway, or in the alternative, the Howards had a right to access the road by a prescriptive easement. The Howards requested the obstructions be removed from Trotter Road, and the Trotters and Buehners be liable for damages as a result of obstructing the road.

[¶ 5] At trial, the Howards presented evidence that the Dunn County Board of Commissioners established Trotter Road as a public highway. They offered into evidence a certified copy of the petition and order establishing a public highway between Section 1 and 12. The Dunn County Board of Commissioners ordered the road to be 66 feet wide “beginning at the northeast corner of section 12-146-94 thence west one mile to the northwest corner of the same section and there ending.” The Howards called numerous witnesses who testified that, as early as the 1940s, the section line deviated northward at the deep ravines. The Howards also offered into evidence a 1960 North Dakota Department of Transportation map that indicated Trotter Road was a primitive road. Gene Buehner testified that the installation of the dam did not change the location of Trotter Road, but merely raised the road level. Patricia Howard also testified that because the Trotters placed obstructions across Trotter Road, they were no longer able to access their pasture land. As a result, they were unable to remove their hay crop in 2009. She testified that they had to purchase additional hay and rent pasture land in 2009, 2010, and 2011.

[¶ 6] The trial court found Trotter Road to be a public highway as established by the Dunn County Board of Commissioners. Alternatively, the trial court found that if Trotter Road was not a public highway, then the Howards had proven [860]*860the elements of a prescriptive easement and were entitled to use and access Trotter Road. Lastly, the trial court awarded the Howards $20,000.00 in damages.

II

[¶ 7] The Trotters and Buehners argue the trial court erred in declaring Trotter Road a public highway, or in the alternative, finding the Howards had a prescriptive easement for Trotter Road. The Trotters and Buehners argue the Howards failed to present evidence to show that, in 1927, the Dunn County Board of Commissioners order establishing the public highway included the northward deviations from the congressional section line. Therefore, they argue that the Howards failed to prove Trotter Road, as it presently exists, is a public highway.

[¶ 8] Whether a road is a public highway is a question of fact. Fischer v. Berger, 2006 ND 48, ¶ 8, 710 N.W.2d 886. A question of fact will not be reversed unless the finding is clearly erroneous. Id.

A finding of fact is clearly erroneous if there is no evidence to support it, if, on the entire record, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding was induced by an erroneous application of the law. Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Id. On appeal, this Court does not reweigh conflicts in the evidence, and we give due regard to the district court’s opportunity to judge the credibility of the witnesses. Id.

Fischer, at ¶ 8.

[¶ 9] “Every road laid out by the proper authorities, ... hereby is declared a public highway to all intents and purposes.” N.D.C.C. § 24-07-02. An order establishing a public highway “must be received in all courts as competent evidence of the facts therein contained and must be prima facie evidence of the regularity of the proceedings prior to the making of such order.” N.D.C.C. § 24-07-15.

[¶ 10] The Howards offered into evidence a certified copy of the petition and order establishing a public highway 66 feet wide “beginning at the northeast corner of section 12-146-94 thence west one mile to the northwest corner of the same section and there ending.” The trial court found, under N.D.C.C. § 24-07-15, the petition and order was evidence a public highway was established between the Howards’ and Trotters’ land. However, the Trotters and Buehners argue these documents did not establish a public highway along Trotter Road, specifically they did not prove whether the Dunn County Board of Commissioners contemplated and included the northward deviations in establishing the public highway.

[¶ 11] It has long been recognized by this Court that congressional section lines “are open to the public travel without the necessity of any prior [governmental] action.” See Small v. Burleigh Co., 225 N.W.2d 295, 300 (N.D.1974).

It is established that the United States in 1866, by the passage of Section 2477, Revised Statutes, made an offer of section line easements on public land, and that the offer was accepted by the Territory of Dakota when it adopted Chapter 33, Laws of Dakota Territory, 1870-1871, codified as Chapter 29, Section 37 of the Political Code of 1877. Walcott Township v. Skauge, 6 N.D. 382, 71 N.W. 544 (1897); Northern Pacific Railway Company v. Lake, 10 N.D. 541, 88 N.W. 461 (1901); Koloen v. Pilot Mound Township, 33 N.D. 529, 157 N.W. 672 (1916); Faxon v. Civil Township of Lallie, 36 N.D. 634, 163 N.W. 531 (1917); [861]*861Huffman v. West Bay Township, 47 N.D. 217, 182 N.W. 459 (1921); and Hillsboro National Bank v.

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Howard v. Trotter, 2012 ND 258, 825 N.W.2d 857, 2012 WL 6582508, 2012 N.D. LEXIS 264 (N.D. 2012).

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