Backhaus v. Renschler, 9892
Decision Date | 03 April 1981 |
Docket Number | No. 9892,9892 |
Citation | 304 N.W.2d 87 |
Parties | Albert BACKHAUS, Plaintiff and Appellant, v. Neil RENSCHLER and Delores Renschler, Defendants and Appellees. Civ. |
Court | North Dakota Supreme Court |
Frank J. Wikenheiser, Linton, and Wheeler, Wolf, Peterson & McDonald, Bismarck, for plaintiff and appellant; argued by Albert A. Wolf, Bismarck, and Frank J. Wikenheiser, Linton.
Schlosser & Schmitz, Bismarck, for defendants and appellees; argued by Orell D. Schmitz, Bismarck.
This is an appeal by the plaintiff, Albert Backhaus, from the judgment of the District Court of Emmons County, dated July 11, 1980, dismissing Backhaus' action against the defendants, Neil and Delores Renschler. In his complaint, Backhaus sought to establish that a public road had been obtained by prescription over the Renschler's property under Section 24-07-01, N.D.C.C., which provides:
In its memorandum opinion, the district court made the following succinct statement of fact which we quote, in part, as an accurate statement of the record in this case:
The district court determined that Backhaus had failed to establish that the use of the road was adverse under a claim of right for the prescriptive period rather than a use only by permission of the landowners. Consequently, the district court concluded that a public road by prescription had not been established under Section 24-07-01, N.D.C.C., and the court dismissed Backhaus' action.
The sole issue for this Court to determine on appeal is whether or not the district court erred in its conclusion that Backhaus failed to establish a public road by prescriptive use under Section 24-07-01, N.D.C.C.
The party asserting the establishment of a public road or highway by prescriptive use under Section 24-07-01, N.D.C.C., has the burden of proving the same by clear, convincing, and satisfactory evidence. Trautman v. Ahlert, 147 N.W.2d 407 (N.D.1966). In Berger v. Berger, 88 N.W.2d 98 (N.D.1958), this Court set forth the fundamental requirements for the establishment of a public road or highway by prescription:
"To establish a highway by prescription, there must have been general, continuous, uninterrupted, and adverse use of the same as such by the public under a claim of right, for a period equal to that for the limitations of real actions.
The following statement by this Court in Berger, supra, is especially relevant in view of the factual circumstances of the instant case:
"It must be conceded that placing obstructions across a road, such as a gate, is a strong indication that the use by others is permissive only, and that erection of a gate or gates across the road tends to evidence an intention on the part of the owner to assume and assert ownership and possession of the land over which the road runs." 88 N.W.2d at 102.
Quoting approvingly from Sprow v. Boston & A. R. Co., 163 Mass. 330, 339, 39 N.E. 1024, 1025 (1895), this Court concluded in Berger, supra :
" 'If all the evidence which was introduced was equally consistent with the view that the uses relied on were of the latter character, (permissive use), the plaintiff failed to sustain the burden of proof resting upon him to show a use under a claim of right.' " 88 N.W.2d at 103.
Backhaus asserts that the road in question has been adversely used by the public since 1928. However, there is testimony in support of the district court's determination that at all times pertinent to Backhaus' claim the property was fenced with a gate located across the road or path. Neil Renschler testified that he has lived in the area since 1924 and that "ever since I can remember" the property has been fenced. Fred Heer, a resident of Emmons County, testified that he first became aware of the road in question in 1930 or 1932 and that the property "has always been fenced." Herbert Ketchum, Albert Backhaus' brother-in-law, testified that he first became aware of the road in 1938 and that the property was fenced with a gate across the road during the entire time that he used the road. Albert Kiemele testified that his parents bought the property in question during the 1930's and that prior to that time they rented the property for a while. He testified that for as long as he could remember the property was fenced and that the gate across the road has remained in the same location over the years.
The record also contains other testimony which supports the district court's determination that the landowners exercised dominion and control over the property through which this roadway or path was located and that the public use of such path was by permission only rather than under a claim of right.
Freddy Weber, a blade operator for Emmons County testified with regard to the control exerted by Mr. Kiemele as a previous owner of the property in question:
By his own testimony, Albert Backhaus indicated that blading of the road was performed with the permission of landowner Kiemele:
Murray Lawler, a County Commissioner for Emmons County from 1959 to 1972, also testified that permission was obtained prior to grading the road in question:
Albert Kiemele...
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