Huber v. Oliver County, No. 940346

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: NEUMANN; VANDE WALLE
• Citation: 529 N.W.2d 179
• Parties: Lloyd T. and Emma HUBER, Plaintiffs and Appellants, v. OLIVER COUNTY, Defendant and Appellee. Civ.
• Docket Number: No. 940346
• Decision Date: 28 February 1995

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529 N.W.2d 179 Lloyd T. and Emma HUBER, Plaintiffs and Appellants,
v.
OLIVER COUNTY, Defendant and Appellee. Civ. No. 940346. Supreme Court of North Dakota. Feb. 28, 1995.

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Albert A. Wolf (argued), Wheeler Wolf, and Webster & Engel, Bismarck, for plaintiffs

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and appellants; appearance by Melissa Hauer.

Charles S. Miller, Jr. (argued), Fleck, Mather & Strutz, Bismarck, for defendant and appellee.

NEUMANN, Justice.

This is an appeal from summary judgment in favor of Oliver County. We affirm in part, reverse in part, and remand for further proceedings.

This dispute centers on a 1961 contract between Lloyd and Emma Huber and Oliver County. The contract grants a provisional qualified easement across the Hubers' land to construct a farm-to-market road. The easement allowed the County to build the road entirely on the Hubers' land rather than building it along the congressional section line. Building the road along the section line would have required crossing Otter Creek numerous times, each time at tremendous expense. By building the road immediately to the east, however, the crossings could be limited to two, one at either end of a small oxbow in the creek. The contract called for the installation of 24-inch squash culverts at each of the two points where the road crosses the oxbow. The County installed the culverts under the road and constructed a concrete diversion structure at the head of the oxbow. The concrete diversion structure was intended to force normal flows to continue along the oxbow, but it also permitted any excess to partially bypass the oxbow in times of extremely high runoff by running along the newly constructed road ditch. The contract also provided that "[i]n the event said culvert proves unsatisfactory for this purpose, then, and in that event, another method shall be examined and installed at the expense" of the County.

In the spring of 1962 the concrete diversion structure installed in 1961 washed out. After the washout, the creek channel changed. Normal flows began to follow the washed-out and deepened road ditch, rather than flowing through the Hubers' oxbow. In 1963 the Hubers requested that the County repair the structure. In 1966 the County hauled in rock ballast in an attempt to force the stream back into its original channel. Almost immediately that, too, was washed out. Again, in 1973, Mr. Huber appeared before the county commissioners, requesting the reconstruction of the low-head dam to divert the stream back into its original oxbow channel, so that he might irrigate the adjacent land. Huber complained again in 1978 about the County's inaction. Finally, in response to his complaints, in 1981 the County told Huber they would attempt to remedy the situation. The County attempted several more times to redirect the stream using rock ballast; however, each attempt failed. The County then employed an engineering firm to give estimates for the reconstruction of the original retention structure. The estimate exceeded $98,000. At this point the County refused to fund the construction.

On appeal the Hubers raise three issues. First, they claim that the trial court improperly found that the statute of limitations had expired; second, they claim that the trial court improperly concluded that they were not eligible to receive specific performance under their contract; and third, they claim the trial court improperly denied them an opportunity to appear and orally argue their motions before the court.

I. Hubers' Statute of Limitations Claim

The trial court ruled that the proper statute of limitations to be applied in this case is NDCC Sec. 28-01-15. ¹ Apparently this was due to the fact that the Hubers' contract with the County was contained in an instrument granting the County an easement across their land. An easement is defined at least in part as "[a]n interest which one person has in the land of another." Black's Law Dictionary 509 (6th ed. 1990). Granting

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another an interest in real property necessarily "affect[s] the title to real property." NDCC Sec. 28-01-15(2) (1991). Therefore, on the record before us, we cannot say that the trial court erred in applying this statute of limitations.

Based on the trial court's ruling, the Hubers' action had to have been "commenced within ten years after the claim for relief ha[d] accrued." NDCC Sec. 28-01-15. "The application of the statute of limitations is a legal bar to a cause of action. If it is applicable the claim ceases to be a legal obligation and becomes a mere moral one which the law will not lend its aid to enforce." Hagen v. Altman, 79 N.W.2d 53, 58-59 (N.D.1956). The statute of limitations begins to run when the underlying cause of action accrues. Keller v. Clark Equipment Co., 474 F.Supp. 966, 969 (D.N.D.1979), aff'd, 715 F.2d 1280 (8th Cir.1983), cert. denied, 464 U.S. 1044, 104 S.Ct. 713, 79 L.Ed.2d 176 (1984). The...