Giese v. Morton County

• Decision Date: 17 December 1990
• Docket Number: No. 900208,900208
• Citation: 464 N.W.2d 202
• Parties: Ted GIESE, Plaintiff and Appellant, v. MORTON COUNTY, a Political Subdivision of the State of North Dakota, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 202

464 N.W.2d 202

Ted GIESE, Plaintiff and Appellant, v. MORTON COUNTY, a Political Subdivision of the State of North Dakota, Defendant and Appellee.

Civ. No. 900208.

Supreme Court of North Dakota.

Dec. 17, 1990.

Schirado Law Office, Mandan, for plaintiff and appellant; argued by L.J. Schirado.

Allen M. Koppy (argued), States Atty., Mandan, for defendant and appellee.

ERICKSTAD, Chief Justice.

Ted Giese appeals from the judgment of the District Court for the South Central Judicial District dated May 9, 1990. The judgment dismissed Giese's complaint and denied an injunction which was intended to prevent Morton County from claiming an easement for public road purposes on the North Half of Section 30, Township 138, Range 83 West in Morton County. We affirm.

In 1926 Giese's predecessor in title to the land in question gave an easement to Morton County. The easement was granted to the County for the purpose of establishing a public highway. In 1926, the Morton County Board of Commissioners formally dedicated the land involved as a county highway. Because the parties and the district court refer to it as a road, we shall do likewise. Giese attempted to close the road on two occasions during the 1980s by petitioning the Morton County Board of Commissioners to vacate the road. On both occasions, the Board of Commissioners unanimously voted to deny Giese's petition to vacate the road. Subsequent to those denials, Giese initiated this action.

The relevant facts as established at trial will be presented in greater detail in the body of the opinion, but can be summarized as follows: 1) the road in question receives little maintenance by the county; and 2) although the road receives only a small amount of use, it is used as an alternative access route by one individual and receives periodic use by neighboring landowners, sightseers, and hunters.

Giese asserts that the district court erred in enforcing the easement because the County has failed to maintain the road as a public highway as required by the easement. ¹ Giese challenges the district court's findings that the County had not abandoned the road.

In Aasland v. County of Yankton, the South Dakota Supreme Court said:

"The rule has long been established in this state that having once been lawfully established a public way can be vacated or abandoned only by some lawful method and that the burden of proof is on one obstructing a lawfully established public way to show vacation or abandonment. Lowe v. East Sioux Falls Quarry Co., 25 S.D. 393, 126 N.W. 609."

280 N.W.2d 666, 668 (S.D.1979). (Quoting Haley v. City of Rapid City, 269 N.W.2d 398, 400 (S.D.1978)). See also, Neill v. Hake, 254 Minn. 110, 93 N.W.2d 821 (1958). We agree that the burden of proof should be on the party challenging a lawfully established public way to show that it has been vacated or abandoned.

We have previously said that an easement created by express grant is not extinguished by non-use or partial use. Royse v. Easter Seal Soc. for Cr. Children, 256 N.W.2d 542, 546 (N.D.1977). To support his contention that the road has been abandoned, Giese must present clear and unequivocal evidence of acts demonstrating and indicating abandonment. Id.

Our review of the district court's findings of fact is governed by the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. E.g., Miller Enterprises v. Dog N' Cat Pet Ctrs., 447 N.W.2d 639, 644 (N.D.1989). In applying the "clearly erroneous" standard of review, we will not substitute our judgment for that of the district court. Id. In order to hold that the district court's findings were clearly erroneous, we must determine that the findings have no support in the evidence or, although some evidence exists to support the findings, we are left with a definite and firm conviction that a mistake has been made. Id. We will not determine that the district court's findings are clearly erroneous merely because we may have viewed the facts differently had we been the trier of fact. Id.

Giese challenges the district court's determination that the County has not abandoned the road. Giese claims the determination is erroneous because the road is physically impossible to use as a public highway, the County has affirmatively recognized that the road is not a public highway by erecting a sign which states the road is not maintained and travel is not advised, the County has failed to maintain the road, and Giese has erected barriers to prevent travel on the road.

At trial, a number of...