Keidel v. Rask, 9690

• Decision Date: 13 March 1980
• Docket Number: No. 9690,9690
• Citation: 290 N.W.2d 255
• 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 255

290 N.W.2d 255

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

Civ. No. 9690.

Supreme Court of North Dakota.

March 13, 1980.

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

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

SAND, Justice.

James Rask appealed from a judgment of the Morton County District Court which granted a 40-foot wide prescriptive right of travel over a road located on Rask's property. We reverse that portion of the judgment which fixed the prescriptive width at 40 feet and remand the case for further determination of that issue.

James Rask and Carl and Keith Keidel own adjacent parcels of real property in Morton County, North Dakota. A gravel road known as Keidel Road runs in an east-west direction across Rask's property and terminates at the Carl Keidel farm. Another road, Chokecherry Lane, runs in a general north-south direction across the Keidel property and intersects with Keidel Road. Over the past several years, the Keidels and Rask have had a dispute over whether or not the intersection of Chokecherry Lane and Keidel Road was located on Rask's property. Because Rask believed the intersection was located on his property, he erected a barricade across Chokecherry Lane which blocked vehicles traveling on Chokecherry Lane from entering onto Keidel Road. The barricade did not interfere with travel on Keidel Road.

The Keidels initiated legal proceedings in this case by asking for an injunction to remove Rask's barricade from across Chokecherry Lane. It was stipulated by the parties that the issue concerned the ingress and egress over the intersection of Chokecherry Lane and Keidel Road, arising out of an alleged prescriptive right of travel over the Rask property which abutted the intersection of Chokecherry Lane and Keidel Road.

Morton County District Judge Lyle G. Stuart, on 4 Nov 1977, granted the Keidels' motion for a temporary injunction and ordered Rask to remove the barricade. On 16 Nov. 1978, a hearing was held before Judge Stuart to determine whether or not a permanent injunction should be issued to enjoin Rask from erecting a barricade at the intersection of Chokecherry Lane and Keidel Road. At the hearing on the permanent injunction, Rask presented evidence that the entrance of Chokecherry Lane onto Keidel Road was changed sometime between the beginning of the prescriptive period in 1957 and 1971 and was then located to the west of the 1957 entry point. The district court found no evidence of a "public" use of Chokecherry Lane because the testimony indicated that use of the road was sparse and spasmodic and confined to a very few individuals. Judge Stuart then denied the permanent injunction and ruled that Rask could re-erect the barricade because the Keidels failed to establish Chokecherry Lane as a highway by prescriptive use.

The Keidels moved the district court to amend its findings of fact, but before the motion was heard Judge Stuart removed himself from the case. On 2 Feb 1979, the North Dakota Supreme Court designated District Judge Norbert J. Muggli to preside at the hearing on the motion, and after he reviewed the trial record and exhibits in the case, Judge Muggli issued a memorandum opinion on 12 June 1979. The court again determined that the use of the frequently altered entrance of Chokecherry Lane onto Keidel Road was so insubstantial as to prevent Chokecherry Lane from becoming a prescriptive public road. However, the findings were amended by Judge Muggli to reflect that the east-west Keidel Road did qualify as a public roadway 40 feet in width and that Rask was prohibited and enjoined from erecting any barriers upon the 40-foot roadway known as the Keidel east-west road.

The court reached this conclusion on the basis that the Keidel Road was 40 feet wide and that a portion of that prescription extended into Chokecherry Lane at the point where the two roads intersected. Therefore, although Chokecherry Lane itself was not established as a highway by prescriptive use, that portion of Chokecherry Lane including the barricade lying within the Keidel Road prescriptive easement was considered a part of the easement acquired by the prescriptive use of the Keidel Road.

Rask moved the district court to again amend the findings or, in the alternative, for a new trial. The district court denied both of these motions and Rask appealed the case to this court.

Two issues on appeal are (1) whether or not the district court erred in finding that the prescriptive width of Keidel Road was 40 feet, and (2) whether or not the district court erred in denying Rask's motion for a new trial.

As to the final issue, a controversy about the width of a highway acquired by user presents a question of fact, and when tried by the court, without a jury it is a question of fact to be determined by the court. Kritzberger v. Traill County, 62 N.D. 208, 242 N.W. 913 (1932). In the instant case, the district court determined in its amended findings of fact that the prescriptive width of Keidel Road was 40 feet.

Rule 52(a), North Dakota Rules of Civil Procedure, provide that the findings of fact of the trial court sitting without a jury shall not be set aside unless they are clearly erroneous. A trial court's finding of fact is "clearly erroneous" only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Peterson v Hart, 278 N.W.2d 133 (N.D.1979); In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973).

To resolve this issue we must examine the pertinent statutes and the facts as presented to the court.

The establishment of public roads by prescription is permitted in North Dakota by § 24-07-01, North Dakota Century Code, which provides as follows:

"Public roads by prescription. All public roads and highways within this state which have been or which shall be open and in use as such, during twenty successive years, hereby are declared to be public roads or highways and confirmed and established as such whether the same have been laid out, established, and opened lawfully or not." (Emphasis ours.)

Kritzberger v. Traill County, supra; Burleigh County v. Rhud, 23 N.D. 362, 136 N.W. 1082 (1912).

Section 24-01-01.1. "Definition of words and phrases. The following words and phrases when used in this title shall, for the purposes of this title, have the meanings respectively ascribed to them in this chapter:

"20. 'Highway, street, or road' shall mean a general term denoting a public way for purposes of vehicular travel, including the entire area within the right of way. A highway in a rural area may be called a 'road', while a highway in an urban area may be called a 'street'.

"37. 'Right of way' shall mean a general term denoting land, property, or interest therein, acquired for or devoted to highway purposes and shall include, but not be limited to publicly owned and controlled rest and recreation areas, sanitary facilities reasonably necessary to accommodate the traveling public, and tracts of land necessary for the restoration, preservation and enhancement of scenic beauty adjacent to the state highway system."

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