Keidel v. Rask

304 N.W.2d 402, 1981 N.D. LEXIS 280
CourtNorth Dakota Supreme Court
DecidedMarch 25, 1981
DocketCiv. 9690-A
StatusPublished
Cited by12 cases

This text of 304 N.W.2d 402 (Keidel v. Rask) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keidel v. Rask, 304 N.W.2d 402, 1981 N.D. LEXIS 280 (N.D. 1981).

Opinions

VANDE WALLE, Justice,

on reassignment.

This is James Rask’s second appeal to this court seeking relief from a trial court judgment declaring the width of a prescriptive road which crosses his land. We reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

In the previous case, the trial court found that the width of the road was 40 feet. In Keidel v. Rask, 290 N.W.2d 255 (N.D.1980), which contains the facts which we will not here repeat, we set aside that finding because it was not supported by the evidence and we sent the case back to be re-tried. In that opinion we noted that the evidence needed for an accurate determination of the width of Keidel Road was absent from the record:

“The record was very unclear as to whether or not Keidel Road is within the Mandan city limits and, if it is, when it became part of the city. This court held, in Kritzberger v. Traill County, supra [62 N.D. 208, 242 N.W. 913 (1932)], that a landowner who permitted a road on his property to be acquired by prescription was presumed to have intended a road of statutory width. That case addressed a North Dakota statute in effect in 1932, but long since repealed, which required all roads to have a minimum width of 66 feet. Therefore, if Keidel Road came within the city limits before the expiration of the 20-year prescription period, it was necessary to know precisely what ordinance or requirement the city had pertaining to minimum road widths.” 290 N.W.2d at 259.

After the case was re-tried, the trial court found as a fact that the road was 60 feet wide. Rask again appealed, stating as the issue:

“Whether or not Exhibit Number 27 (Mandan City Ordinance Number 14-0406) should have been admitted into evidence, and even if it should have been admitted, whether or not this determines the width of all roads within the City of Mandan, no matter how acquired.”

We have said that “a trial judge, in a nonjury case, should ordinarily admit all evidence which is not clearly inadmissible.” Schuh v. Allery, 210 N.W.2d 96, 99 (N.D.1973). We are not persuaded by Rask’s argument that Mandan City Ordinance No. 14-0406 should not have been admitted. Rask also contests the trial court’s decision to treat the city ordinance as controlling. In Keidel we alluded to the importance of official standards in ascertaining the dimensions of a prescriptive public road. However, prefacing Section 14-0406 of the city ordinance are the following words:

“The following standards shall be observed in preparing any plat of a subdivision of the city: ...”

Keidel Road is within the city limits, but the land on which it lies has not been platted. Thus we do not have the circumstances we had in Kritzberger v. Traill County, 62 N.D. 208, 242 N.W. 913 (1932), where a minimum width was, by statute, required for all public roads however acquired. We believe the court erred when it applied the ordinance in determining the width of the prescriptive right. But, if a judgment is supported by other findings of fact which are not clearly erroneous and which were not induced by an erroneous view of the law, that would not result in a reversal of the judgment. Stee v. “L” Monte Industries, Inc., 247 N.W.2d 641 (N.D.1976). The trial court made the following findings of fact and conclusions of law:

“FINDINGS OF FACT
“1. Note: In making these findings, the Court evaluates the courtroom evidence with some appreciation gained from an on-the-site examination of the roadway in controversy and the unusual topography; [404]*404steep hill along south side and drop-off along north side of the roadway. The tour was had the morning of June 27 in the company of both attorneys.
“2. That there exists within the City of Mandan a road commonly referred to as the ‘Keidel-Rask Road’. It has as its center line a description as follows:
[Centerline description omitted.]
This road has been in existence for over twenty (20) successive years and qualifies as a public prescriptive road under the provisions of Section 24-07-01 of the North Dakota Century Code.
“3. That the prescriptive road as established is subject to the regulations and ordinances governing roads located in the City, and in particular the standards set forth in Section 14-0406 of the Ordinances of the City, which prescribes standards generally and usually observed with respect to all streets and roadways in the City.
“4. That the standards of streets and roadways and rights-of-way as provided under the Ordinances of the City and applicable to roadways in the City, provide for the following classes, rights-of-way, and roadway widths:
Class of Street Right-of-way Roadway
Major 80 feet 40 feet
Secondary 66 feet 36 feet
Minor 60 feet 26 feet
“5. That the actual traveled portion of the Keidel-Rask Road, exclusive of ditches, shoulders, and slopes varies from ten (10) to fifteen (15) feet on each side of the center line of the roadway described in Paragraph 2 above and is therefore a Minor Class street under the usual standards with respect to classification of streets in the City, and the requirements for maintenance of the actual traveled portion of said roadway necessitates a right-of-way of a minimum of thirty (30) feet on each side of the center line described in Paragraph 2 above or a sixty (60) foot right-of-way for travel and maintenance of the traveled portion.
“6. That the width required for the right-of-way of the Keidel-Rask Road is sixty (60) feet in order to provide reasonable, proper and ordinary:
“a. Ditches, Shoulders and Slopes
“b. Maintenance and Repairs
“c. Safe and Convenient Travel
“7. That witness George Toman, an engineer, says in the area of Chokecherry Lane 40 feet would not be sufficient to maintain the Keidel-Rask Road. This testimony is credible.
“8. That witness Larry Bushey, survey- or, said on cross-examination that to build a road here and maintain it properly would require in excess of 60 feet.
“9. That barricades placed within the sixty (60) foot right-of-way of the Keidel-Rask Road would interfere with the use of the Road by the traveling public, and neither the City nor other political subdivision has authorized the erection of any barricades or other impediments to travel within the right-of-way of the Road. “From the foregoing Findings, the Court makes the following:
“CONCLUSIONS OF LAW
“1. That the Keidel-Rask Road, in the City of Mandan, is a public road created under the provisions of Section 24-07-01 of the North Dakota Century Code.
“2.

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Keidel v. Rask
304 N.W.2d 402 (North Dakota Supreme Court, 1981)

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Bluebook (online)
304 N.W.2d 402, 1981 N.D. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keidel-v-rask-nd-1981.