G&D Enters. v. Liebelt
| Decision Date | 21 October 2020 |
| Docket Number | No. 20190256,20190256 |
| Citation | 949 N.W.2d 853 |
| Parties | G&D ENTERPRISES, Plaintiff and Appellant v. Merrilynn A. LIEBELT, Defendant and Appellee |
| Court | North Dakota Supreme Court |
Mark A. Kaffar, Hazen, N.D., for plaintiff and appellant.
Chris A. Edison, Bismarck, N.D., for defendant and appellee.
[¶1] G&D Enterprises ("G&D") appeals from a judgment of dismissal entered after the district court granted summary judgment on G&D's claims against Merrilynn Liebelt. We conclude the court erred in granting summary judgment because the court misapplied the law and genuine issues of material fact exist on G&D's claims for nuisance and trespass, and the court erred in dismissing G&D's request for injunctive relief. We reverse and remand for further proceedings.
[¶2] G&D and Liebelt own adjacent properties in the City of Beulah. In the summer of 2015, G&D discovered a private water line while digging on its property, puncturing the line. The water line crosses a portion of G&D's property and supplies water to Liebelt's residence on her property. Before either G&D or Liebelt owned their respective property, both properties had been one lot. The existence of the water line was not recorded, and neither party had actual knowledge of the water line before G&D discovered it. It is undisputed that there was no express easement of record for the water line.
[¶3] In November 2017, G&D filed a summons and complaint in the district court, asserting claims against Liebelt for private nuisance and civil trespass and seeking damages and injunctive relief. Liebelt answered, denying the allegations and asserting G&D is not entitled to any damages, injunctive relief, or recovery. In March 2019, Liebelt moved the district court for summary judgment on all claims.
[¶4] After a June 2019 hearing, the district court held it was undisputed that the water line running across the adjacent properties was installed before either party owned their respective property, that Liebelt's home was built and the water line was put in prior to Liebelt's purchasing the home, and that neither party was aware of the water line's location until it was punctured in the summer of 2015. The court concluded, however, that G&D failed to establish its claims for private nuisance or civil trespass or that it was entitled to injunctive relief. The court granted summary judgment to Liebelt, and a judgment dismissing all of G&D's claims with prejudice was entered.
[¶5] Our standard for reviewing a district court's summary judgment decision is well established:
Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.
Ceynar v. Barth , 2017 ND 286, ¶ 10, 904 N.W.2d 469 (quoting Hokanson v. Zeigler , 2017 ND 197, ¶ 14, 900 N.W.2d 48 ). "A motion for summary judgment is not an opportunity to conduct a mini-trial." Hamilton v. Woll , 2012 ND 238, ¶ 13, 823 N.W.2d 754 (quoting Farmers Union Oil Co. v. Smetana , 2009 ND 74, ¶ 11, 764 N.W.2d 665 ). "This Court has repeatedly held that summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment." Id. (quoting Farmers Union Oil Co. , at ¶ 10 ).
[¶6] G&D argues the district court erred in granting summary judgment against it because competent evidence supports its private nuisance claim.
[¶7] Section 42-01-01, N.D.C.C., defines nuisance, in relevant part, as follows:
[¶8] "A private nuisance is one which affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public." N.D.C.C. § 42-01-02. This Court has explained that "[t]he duty which gives rise to a nuisance claim is the absolute duty not to act in a way which unreasonably interferes with other persons’ use and enjoyment of their property." Rassier v. Houim , 488 N.W.2d 635, 637 (N.D. 1992).
The basic criterion in the whole law of private nuisance is reasonableness of conduct. Neighbors can coexist smoothly only so long as each makes such uses of the land which he controls as is reasonable in view of the circumstances of his action. It is in assessing this duty, which is explicit in the provisions of section 42-01-01, NDCC, that omitting to perform a duty which "[a]nnoys, injures, or endangers ... others" is a nuisance, that the common law of nuisance remains relevant.
Id. (citations and quotations omitted). Whether a statutory nuisance exists presents a mixed question of fact and law. Ceynar , 2017 ND 286, ¶ 20, 904 N.W.2d 469.
[¶9] In granting summary judgment on the nuisance claim, the district court relied exclusively on Hale v. Ward County , 2012 ND 144, ¶ 25, 818 N.W.2d 697, and held G&D had not provided competent evidence that there is an "actual danger" to its property. The court held that because G&D failed to provide competent evidence of an actual danger to its property, its claim did not survive summary judgment on this issue.
[¶10] G&D argues that the district court's reliance on Hale was misplaced and that the witnesses’ deposition testimony establishes the water line creates a private nuisance under N.D.C.C. § 42-01-01(1) and (4). G&D contends that a genuine dispute regarding material facts renders summary judgment inappropriate. Liebelt responds, however, that no factual dispute exists and the nuisance claim fails as a matter of law because G&D did not allege an unlawful act or omission of a duty by her. See Kappenman v. Klipfel , 2009 ND 89, ¶ 37, 765 N.W.2d 716 ; Rassier , 488 N.W.2d at 637. Liebelt asserts no interference exists.
[¶11] We agree that the district court erred in applying our decision in Hale , 2012 ND 144, ¶¶ 23-25, 818 N.W.2d 697. In Hale , the Hales claimed that a law-enforcement shooting range constituted a private nuisance to their private property. They argued the range posed a danger to their property because their property was located within the range's "cone of fire" and was within range of pistol fire, rifle fire, and chemical weapons. Id. at ¶ 24. In support of their claims, only Robert Hale's testimony had supported their assertions, but he did not claim any expertise on "cones of fire," the range of firearms, or chemical weapons. Id. We thus concluded the Hales had failed to present competent evidence supporting their private nuisance claim and the district court had not erred in granting summary judgment. Id. at ¶ 25.
[¶12] Our decision in Hale was based on the facts as established in that case; however, we did not limit private nuisance claims only to cases where there is an "actual danger" to property. The district court in the present case misapplied the law by too narrowly defining what may constitute a private nuisance under N.D.C.C. § 42-01-01. Further, unlike Hale , which involved a shooting range approximately one mile from the property owners’ home, this case involves the existence and continued use of a private water line servicing Liebelt's home that undisputedly runs across a portion of G&D's property. G&D's private nuisance claim goes beyond simply whether the water line poses an "actual danger" to its property.
[¶13] Contrary to the district court's holding that it did not present any competent evidence, G&D relies on the deposition testimony from three witnesses, including testimony from a retired, registered engineer who had provided services to Beulah; from the acting foreman for Beulah's water and wastewater department; and from Beulah's city coordinator. G&D asserts specific testimony constitutes competent evidence of individuals with personal knowledge and establishes the annoyance, injury, or endangerment of the comfort or repose of G&D, or the insecurity in the use of its property that G&D faces because of the water line's existence.
[¶14] G&D points to testimony that suggests the "exact" location of the water line is unknown and cannot be located by use of the city's one-call system, preventing G&D from fully developing its property. G&D asserts testimony also establishes that water had come into G&D's building as a result of the puncture to Liebelt's water line, and the water line's existence had already caused G&D to have damage and unreasonably interferes with its property rights. Liebelt, however, responds by pointing to other portions of the same witnesses’ testimony that she asserts "clearly" shows both parties know where the line is located and that one-call and other professionals would be able to locate the water line "in the future."
[¶15] On this record, G&D provided sufficient competent evidence to raise a genuine issue of material fact on its private nuisance claim under N.D.C.C. § 42-01-01. We conclude the district court erred in granting summary judgment on G&D's claim for private nuisance.
[¶16] G&D...
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