Keidel v. Rask

• Decision Date: 25 March 1981
• Docket Number: No. 9690-A,9690-A
• Citation: 304 N.W.2d 402
• Parties: Carl G. KEIDEL and Keith C. Keidel, Plaintiffs and Appellees, v. James Clifford RASK, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 402

304 N.W.2d 402

Carl G. KEIDEL and Keith C. Keidel, Plaintiffs and Appellees, v. James Clifford RASK, Defendant and Appellant.

Civ. No. 9690-A.

Supreme Court of North Dakota.

March 25, 1981.

Fleck, Mather, Strutz & Mayer, Bismarck, for plaintiffs and appellees; argued by Russell R. Mather, Bismarck.

Benjamin C. Pulkrabek, Mandan, for defendant and appellant.

VANDE WALLE, Justice, on reassignment.

This is James Rask's second appeal to this court seeking relief from a trial court judgment declaring the width of a prescriptive road which crosses his land. We reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

In the previous case, the trial court found that the width of the road was 40 feet. In Keidel v. Rask, 290 N.W.2d 255 (N.D.1980), which contains the facts which we will not here repeat, we set aside that finding because it was not supported by the evidence and we sent the case back to be re-tried. In that opinion we noted that the evidence needed for an accurate determination of the width of Keidel Road was absent from the record:

"The record was very unclear as to whether or not Keidel Road is within the Mandan city limits and, if it is, when it became part of the city. This court held, in Kritzberger v. Traill County, supra (62 N.D. 208, 242 N.W. 913 (1932)), that a landowner who permitted a road on his property to be acquired by prescription was presumed to have intended a road of statutory width. That case addressed a North Dakota statute in effect in 1932, but long since repealed, which required all roads to have a minimum width of 66 feet. Therefore, if Keidel Road came within the city limits before the expiration of the 20-year prescription period, it was necessary to know precisely what ordinance or requirement the city had pertaining to minimum road widths." 290 N.W.2d at 259.

After the case was re-tried, the trial court found as a fact that the road was 60 feet wide. Rask again appealed, stating as the issue:

"Whether or not Exhibit Number 27 (Mandan City Ordinance Number 14-0406) should have been admitted into evidence, and even if it should have been admitted, whether or not this determines the width of all roads within the City of Mandan, no matter how acquired."

We have said that "a trial judge, in a nonjury case, should ordinarily admit all evidence which is not clearly inadmissible." Schuh v. Allery, 210 N.W.2d 96, 99 (N.D.1973). We are not persuaded by Rask's argument that Mandan City Ordinance No. 14-0406 should not have been admitted. Rask also contests the trial court's decision to treat the city ordinance as controlling. In Keidel we alluded to the importance of official standards in ascertaining the dimensions of a prescriptive public road. However, prefacing Section 14-0406 of the city ordinance are the following words:

"The following standards shall be observed in preparing any plat of a subdivision of the city: ..."

Keidel Road is within the city limits, but the land on which it lies has not been platted. Thus we do not have the circumstances we had in Kritzberger v. Traill County, 62 N.D. 208, 242 N.W. 913 (1932), where a minimum width was, by statute, required for all public roads however acquired. We believe the court erred when it applied the ordinance in determining the width of the prescriptive right. But, if a judgment is supported by other findings of fact which are not clearly erroneous and which were not induced by an erroneous view of the law, that would not result in a reversal of the judgment. Stee v. "L" Monte Industries, Inc., 247 N.W.2d 641 (N.D.1976). The trial court made the following findings of fact and conclusions of law:

"FINDINGS OF FACT

"1. Note: In making these findings, the Court evaluates the courtroom evidence with some appreciation gained from an on-the-site examination of the roadway in controversy and the unusual topography steep hill along south side and drop-off along north side of the roadway. The tour was had the morning of June 27 in the company of both attorneys.

"2. That there exists within the City of Mandan a road commonly referred to as the 'Keidel-Rask Road'. It has as its center line a description as follows:

(Centerline description omitted.)

This road has been in existence for over twenty (20) successive years and qualifies as a public prescriptive road under the provisions of Section 24-07-01 of the North Dakota Century Code.

"3. That the prescriptive road as established is subject to the regulations and ordinances governing roads located in the City, and in particular the standards set forth in Section 14-0406 of the Ordinances of the City, which prescribes standards generally and usually observed with respect to all streets and roadways in the City.

"4. That the standards of streets and roadways and rights-of-way as provided under the Ordinances of the City and applicable to roadways in the City, provide for the following classes, rights-of-way, and roadway widths:

Class of Street Right-of-way Roadway

                ---------------  ------------  -------
                Major            80 feet       40 feet
                Secondary        66 feet       36 feet
                Minor            60 feet       26 feet
                

"5. That the actual traveled portion of the Keidel-Rask Road, exclusive of ditches, shoulders, and slopes varies from ten (10) to fifteen (15) feet on each side of the center line of the roadway described in Paragraph 2 above and is therefore a Minor Class street under the usual standards with respect to classification of streets in the City, and the requirements for maintenance of the actual traveled portion of said roadway necessitates a right-of-way of a minimum of thirty (30) feet on each side of the center line described in Paragraph 2 above or a sixty (60) foot right-of-way for travel and maintenance of the traveled portion.

"6. That the width required for the right-of-way of the Keidel-Rask Road is sixty (60) feet in order to provide reasonable, proper and ordinary:

"a. Ditches, Shoulders and Slopes

"b. Maintenance and Repairs

"c. Safe and Convenient Travel

"7. That witness George Toman, an engineer, says in the area of Chokecherry Lane 40 feet would not be sufficient to maintain the Keidel-Rask Road. This testimony is credible.

"8. That witness Larry Bushey, surveyor, said on cross-examination that to build a road here and maintain it properly would require in excess of 60 feet.

"9. That barricades placed within the sixty (60) foot right-of-way of the Keidel-Rask Road would interfere with the use of the Road by the traveling public, and neither the City nor other political subdivision has authorized the erection of any barricades or other impediments to travel within the right-of-way of the Road.

"From the foregoing Findings, the Court makes the following:

"CONCLUSIONS OF LAW

"1. That the Keidel-Rask Road, in the City of Mandan, is a public road created under the provisions of Section 24-07-01 of the North Dakota Century Code.

"2. That a roadway created under the provisions of Section 24-07-01 includes adjacent lands reasonably necessary for the maintenance of the road, including but without limitation such area as is necessary to provide for ditches, shoulders, and slopes, and the prescriptive road as formed under the aforesaid provision is not limited to the actual traveled area of the roadway bed.

"3. That when an owner of land permits a public road to be acquired by prescriptive use, it is presumed such owner intends a road of such width as is reasonably necessary for:

"a. Ordinary Repairs

"b. Ordinary Maintenance

"c. Convenience of the traveling public

"d. Safety of the traveling public

"4. That when an owner of land permits a public road to be acquired by prescriptive use, it is presumed such owner intends the road conform to roadway standards prescribed in ordinances and regulations promulgated by the governmental entity having jurisdiction of the public road.

"5. That a sixty (60) foot right-of-way is the right-of-way necessary for the maintenance of the Keidel-Rask Road as a public road.

"6. That a sixty (60) foot right-of-way is the right-of-way prescribed by and in accordance with the ordinance promulgated by the City of Mandan.

"7. That placement of barricades or other interferences with the traveling public on the road is in derogation of the rights of the public in its use of the Keidel-Rask Road, inclusive of the right-of-way appurtenant, thereto, and the barricades placed thereon by the defendant constitute a nuisance, and the plaintiffs as members of the traveling public are entitled to a permanent injunction prohibiting persons acting without the authority of the City or other political subdivision from obstructing or placing of obstructions on the traveled portion or right-of-way incident to the Keidel-Rask Road."

Thus the trial court found as fact: that the Keidel-Rask road qualifies as a public prescriptive road; that the actual traveled portion, exclusive of ditches, shoulders, and slopes, varies from 10 to 15 feet on each side of the centerline; that requirements for the maintenance of the traveled way is a right-of-way of 30 feet on each side of the centerline; and that barricades placed within that 60-foot right-of-way interfere with the public use of the road. The trial court, in finding of fact No. 5, found that the roadway is a "Minor Class" street under the provisions of the city ordinance.

In its conclusions of law the trial court determined that the 60-foot right-of-way is necessary for the maintenance of the road as a public road. It further determined that a 60-foot right-of-way is the right-of-way prescribed by and in accordance with the city ordinance. If the trial court relied solely upon the city ordinance in determining that the width of the road in question was 60 feet, that determination would be in error because, as we have already noted, the ordinance applies standards to be observed only when a plat is prepared for a subdivision in the city. There is,...