State v. Meyer

• Citation: 361 N.W.2d 221
• Decision Date: 16 January 1985
• Docket Number: No. 1036,1036
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gary MEYER, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

Page 221

361 N.W.2d 221

STATE of North Dakota, Plaintiff and Appellee, v. Gary MEYER, Defendant and Appellant.

No. 1036.

Supreme Court of North Dakota.

Jan. 16, 1985.

As Amended Jan. 23, 1985.

James M. Vukelic, Asst. State's Atty., Mott, for plaintiff and appellee State of N.D.

Mike L. Halpern, Glen Ullin, for defendant and appellant.

VANDE WALLE, Justice.

In a criminal action tried to the Grant County court without a jury, Gary Meyer was found guilty of obstructing a public road in violation of Section 24-12-02, N.D.C.C. Obstructing a public road is a Class B misdemeanor. Sec. 24-12-05, N.D.C.C. We reverse.

On this appeal, Meyer divides his argument into seven "issues":

"I. Can the crossing over the Defendant's land be considered a road or highway?

"II. Does the County Judge have the authority to declare an alleged highway a public road or public highway?

"III. Does the decision of the County Court result in a taking of property without just compensation?

"IV. Did the Court err in determining that the use of the alleged road by the complaining witness was not permissive?

"V. Did the Court err in determining that the alleged road was in use for twenty (20) years in a nonpermissive manner?

"VI. Was the evidence such that it could be called clear and convincing so as to find a public road?

"VII. May the Defendant be convicted of the crime of obstructing a public road on March 14, 1984, when the alleged road wasn't declared public until May 24, 1984, the date of the conviction?"

Because we consider some, but not all, of the issues dispositive of the appeal before us, we will discuss only those issues which are necessary to our disposition of the matter.

We are unable to discern from the record whether the trial court determined that the violation occurred because Meyer obstructed a portion of a section line or whether the trial court determined that a road across part of Meyer's property--which road was alleged to be a public road acquired by prescription--was a public road which Meyer obstructed. The basis for the trial court's decision is important because there is no doubt that a section line is open for public travel although there is no improved road thereon and without the necessity of any prior action by a board of township supervisors or county commissioners. See, e.g., DeLair v. County of LaMoure, 326 N.W.2d 55 (N.D.1982).

It appears from the record before us, however, that the issue before the trial court was whether or not the road in question was a public road by virtue of Section 24-07-01, N.D.C.C., which provides that all public roads and highways within this State which have been or which shall be open and in use as such, during twenty successive years, are public roads or highways whether or not they have been laid out, established, and opened lawfully. Thus Meyer was charged in the complaint with "obstruct[ing] a public road or highway located in the Northeast Quarter ... of Section 14, Township One Hundred Thirty-three ... North, Range Eighty-nine ... West, Grant County, with intent to prevent the free use of said road by the public; ..." in violation of Section 24-12-02, N.D.C.C. Section 24-12-02 prohibits the obstructing of any public highway in any manner with intent to prevent the free use thereof by the public. On the other hand, Section 24-06-28, N.D.C.C., prohibits the obstruction of section lines. Furthermore, a review of the transcript of testimony at trial reveals that most, if not all, of the evidence concerned whether or not the road which Meyer obstructed was a public road by virtue of Section 24-07-01, N.D.C.C. Finally, there appears to be no dispute but that Meyer obstructed the road. Thus, for the purposes of this appeal, we view the trial court's determination to be that Meyer obstructed a public road which had been acquired through prescription as set forth in Section 24-07-01, N.D.C.C. Because we consider the last issue raised by Meyer, i.e., the issue of whether or not Meyer could be "convicted of the crime of obstructing a public road on March 14, 1984, when the alleged road wasn't declared public until May 24, 1984, the date of the conviction" as controlling, we discuss only that issue. A recitation of additional facts is not necessary in our disposition of this issue.

We are concerned with the procedure employed in this instance, whereby a defendant is charged with the crime of obstructing a public road and at the criminal trial the primary, and most probably the only, issue is whether or not the road is a public road by virtue of Section 24-07-01, N.D.C.C. We recognize the courts in some jurisdictions have indicated their approval of trying the issue of whether or not a road is a public road by prescription in the context of a criminal action charging obstruction of that particular road. See, e.g., State v. Nesbitt, 79 Idaho 1, 310 P.2d 787 (1957); State v. Teeters, 97 Iowa 458, 66 N.W. 754 (1896); State v. Eisele, 37 Minn. 256, 23 N.W. 785 (1887); State v. White, 96 Mo.App. 34, 69 S.W. 684 (1902); ¹ State v. Brown, 72 N.M. 274, 383 P.2d 243 (1963). Some of these decisions pose the issue in the form of whether or not the particular statute in question made knowledge that the road was a public road a part of the statute. See 40 C.J.S. Highways Sec. 230 (1944).

However, where, as here, there is a legitimate dispute as to whether or not the necessary requirements have been met to make the road in question a road by prescription as specified in Section 24-07-01, N.D.C.C., ² a criminal action is ill-suited to a settlement of that dispute. ³ Rather, we believe the proper procedure is to institute a civil action wherein the issue of whether or not the road in question has become a public road by prescription may be determined in the atmosphere of civil, rather than criminal, litigation. That procedure appears to be the procedure commonly used in North Dakota in the past to settle these disputes. See, e.g., Mohr v. Tescher, 313 N.W.2d 737 (N.D.1981); Backhaus v. Renschler, 304 N.W.2d 87 (N.D.1981); Keidel v. Rask, 290 N.W.2d 255 (N.D.1980); Berger v. Berger, 88 N.W.2d 98 (N.D.1958); Berger v. Morton County, 57 N.D. 305, 221 N.W. 270 (1928).

The State argues that leaving the issue of whether or not the road in question is a public road by prescription to the trier of fact in a criminal action is no different from leaving to the trier of fact the issue of whether or not a structure is a "building" within the meaning of a burglary statute. See State v. Walker, 319 N.W.2d 414 (Minn.1982). In view of the requirements necessary to establish a public road by prescription [see Berger v. Berger, supra], we believe the differences between the two situations are obvious.

The State also argues that the person complaining of the obstruction of the road should not have to endure the expense of instituting a civil action to have a court declare the road a public road by prescription. We do not believe this argument justifies a criminal action rather than a civil action. If the State's Attorney deems it appropriate that the State institute an action on behalf of the public who presumably would travel the road, the State may institute a civil action to have the road declared a public road. Cf. State v. District Court, 19 N.D. 819, 124 N.W. 417 (1910); Myhre, Attorney General of North Dakota, 52 N.D.L.Rev. 349 (1975).

The judgment of conviction is reversed and we remand the case to the trial court with the direction that it enter a judgment of acquittal.

GIERKE, J., concurs.

ERICKSTAD, C.J., concurs in the result.

Justice PAUL M. SAND, who died on December 8, 1984, was a member of this Court at the time this case was submitted.

PEDERSON, Surrogate Judge, dissenting.

The majority opinion creates serious problems for the future. By judicial legislation, this Court has cast grave doubts on the application of some long-standing and universal rules by which we live and has announced an exception which has parameters that are hazy and, in my opinion, not at all obvious.

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