Owego Twp. v. Pfingsten
| Decision Date | 08 March 2018 |
| Docket Number | No. 20170190,20170190 |
| Citation | 908 N.W.2d 123 |
| Parties | OWEGO TOWNSHIP, Plaintiff and Appellee v. Leon PFINGSTEN, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Amy M. Clark (argued) and Janel B. Fredericksen (appeared), Wahpeton, ND, for plaintiff and appellee.
Scott P. Brand, West Fargo, ND, for defendant and appellant.
[¶ 1] Leon Pfingsten appeals from a district court order granting Owego Township’s motion to dismiss an appeal. We affirm the order.
[¶ 2] On March 27, 2015 several Owego Township residents petitioned for alteration of what is known as Bagoon Road. In April 2015 the Township sued Pfingsten to have that portion of Bagoon Road on Pfingsten’s property declared a public road by prescriptive easement, to prevent Pfingsten from claiming any adverse interest in the road and to have damages awarded for Pfingsten’s intentional injury to the road. The Township also sought access to Pfingsten’s property for surveying. Pfingsten counterclaimed for trespass. The district court entered a stipulated order providing that the Township had the right to survey Pfingsten’s land before December 31, 2016 and, upon completion of the survey, the Township would proceed with a taking action. The district court stayed the action until December 31, 2016.
[¶ 3] On September 26, 2016, the Township acted on the March 2015 petition and adopted and filed with the Township Clerk an order to alter highway and a statement of damages. The order to alter highway changed the location of Bagoon Road on Pfingsten’s property. The order included a legal description of two acres of Pfingsten’s land to be taken by the Township for relocation of Bagoon Road. The statement of damages valued Pfingsten’s two acres at $9,000. Pfingsten did not appeal the Township’s award of damages. On December 3, 2016 the Township adopted a confirmation of order to alter highway and confirmation of statement of damages. On December 22, 2016 Pfingsten received a $9,000 check from the Township. He appealed to the district court on January 19, 2017. The Township moved to dismiss the appeal. The district court ruled that Pfingsten’s appeal was untimely under N.D.C.C. §§ 24–07–22 and 28–34–01 and granted the Township’s motion to dismiss the appeal.
[¶ 4] Pfingsten argues the district court erred by concluding his appeal was untimely under N.D.C.C. §§ 24–07–22 and 28–34–01. The parties do not dispute the facts material to our decision. When jurisdictional facts are not disputed, a district court’s subject matter jurisdiction over an appeal from a local governing body is a question of law, which we review de novo. Garaas v. Cass Cty. Joint Water Res. Dist. , 2016 ND 148, ¶ 6, 883 N.W.2d 436.
[¶ 5] Chapter 24–07, N.D.C.C., regulates proceedings for opening and vacating certain highways. Section 24–07–04 provides counties and townships with authority over their roads:
[¶ 6] On March 27, 2015 several Township residents filed a petition for alteration of road with the Township. Under N.D.C.C. § 24–07–05, that petition initiated the process authorized in the remainder of chapter 24–07. On May 24, 2016 the Township issued a resolution of necessity:
[¶ 7] On September 26, 2016 the Township acted on the petition and issued an order to alter highway. That order stated:
[¶ 8] The order was filed with the Township Clerk the same day it was issued. The process followed for entry and filing the order was consistent with N.D.C.C. § 24–07–14 :
"Whenever ... the board of township supervisors shall lay out, alter, or discontinue any highway, it shall cause a survey thereof to be made when necessary, and it shall make out an accurate description of the highway so altered, discontinued, or laid out, and shall incorporate the same in an order to be signed by the members of such board, and shall cause such order, together with all the petitions and affidavits of service and posting of notices to be filed ... in the office of the township clerk, ..."
[¶ 9] Under N.D.C.C. § 24–07–14, after the Township’s records are filed with the Clerk, the Clerk must wait at least thirty days before taking further action on the matter. Specifically, the "township clerk may not record such order within thirty days, nor until a final decision is had, and not then unless such order is confirmed." Id.
[¶ 10] Along with the order to alter highway, on September 26, 2016 the Township issued and filed a statement of damages that concluded "[t]he amount of damages awarded to Mr. Pfingsten due to the road alteration is $9,000.00."
[¶ 11] Under N.D.C.C. § 24–07–16, damages sustained by laying out, altering or discontinuing any road may be ascertained by agreement of the owner and township or, absent agreement, "the same must be assessed in the manner herein prescribed before the road is opened, worked, or used." That section continues:
Id. (emphasis added).
[¶ 12] Here, the Township’s statement of damages was filed with the Township Clerk on the afternoon of the day it was issued. The Township’s process in issuing that statement was consistent with the requirements of N.D.C.C. § 24–07–14. Because the parties did not agree on the damages resulting from the Township’s actions, the filing of the statement also complied with the requirement in N.D.C.C. § 24–07–16 that "[t]he board of township supervisors shall deposit a statement of the amount of damages assessed with the township clerk." Id.
[¶ 13] After the Township filed the order and statement, Pfingsten could appeal or accept payment in the amount specified in the statement of damages. A landowner’s right to appeal is provided by statute:
"Any person who feels aggrieved by any determination or award of damages made by the board having jurisdiction, either in laying out, altering, or discontinuing, or in refusing to lay out, alter, or discontinue, any highway or cartway, within thirty days after the filing of such determination or award of damages, as provided in this chapter, may appeal therefrom to the district court in accordance with the procedure provided in section 28–34–01."
N.D.C.C. § 24–07–22.
[¶ 14] Section 28–34–01 specifies that "[t]he notice of appeal must be filed with the clerk of the court within thirty days after the decision of the local governing body." N.D.C.C. § 28–34–01(1). No dispute exists that Pfingsten did not appeal within thirty days of September 26, 2016.
[¶ 15] On December 3, 2016 the Township adopted a confirmation of order to alter highway and confirmation of statement of damages. The timing of the confirmation was consistent with that part of N.D.C.C. § 24–07–14 prohibiting the Township Clerk from recording the order and statement of damages until thirty days after filing "and not then unless such order is confirmed." The confirmation affirmed the Township’s September 26, 2016 order to alter highway and statement of damages. The basis for the Township’s confirmation included that "neither the Order nor the Statement of Damages has been appealed, and more than 30 days has passed since entry of the Order and Statement of Damages."
[¶ 16] "The interpretation of a statute is a question of law, fully reviewable by this Court." Keepseagle v. Backes , 454 N.W.2d 312, 315 (N.D. 1990). Id. (citations and quotation marks omitted).
[¶ 17] The language of N.D.C.C. §§ 24–07–22 and 28–34–01 states an appeal of a determination or award of damages must be made within thirty days of the Township’s filing of that determination or award of damages. On September 26, 2016 the Township filed with the Township Clerk both its order to alter highway and statement of damages. These documents make a determination and state the amount to be awarded to Pfingsten. Therefore, the statutory deadline for Pfingsten’s notice of appeal was thirty days later on October 26, 2016. Because...
To continue reading
Request your trial