Lincoln Land Dev., LLP v. City of Lincoln, 20180117

• Decision Date: 15 March 2019
• Docket Number: No. 20180117,20180117
• Citation: 924 N.W.2d 426
• Parties: LINCOLN LAND DEVELOPMENT, LLP, Plaintiff and Appellee v. CITY OF LINCOLN, Defendant and Appellant
• Court: North Dakota Supreme Court

924 N.W.2d 426

LINCOLN LAND DEVELOPMENT, LLP, Plaintiff and Appellee

v.CITY OF LINCOLN, Defendant and Appellant

No. 20180117

Supreme Court of North Dakota.

Filed March 15, 2019

Paul R. Sanderson (argued) and William J. Behrmann (on brief), Bismarck, ND, for plaintiff and appellee.

Randall J. Bakke (argued) and Bradley N. Wiederholt (appeared), Bismarck, ND, for defendant and appellant.

Crothers, Justice.

[¶1] The City of Lincoln appeals from a district court’s amended judgment awarding damages and attorney fees for taking land owned by Lincoln Land Development, LLP. We affirm the taking decision, award of attorney fees, and remand to consider awarding attorney fees on appeal.

I

[¶2] In the mid-1980s the City of Lincoln established a narrow, two-tire-track dirt road over private property to access its wastewater treatment site. In 2005 Lincoln Land Development purchased the property. In 2011 the City improved the dirt road by raising the road profile, widening the road top, constructing ditches, installing culverts and completing gravel resurfacing to standardize the width and height of the road. The City did not obtain permission from Lincoln Land Development before commencing the improvement project and did not initiate eminent domain proceedings.

[¶3] Lincoln Land Development sued the City in February 2015 for inverse condemnation, trespass and nuisance relating to the City’s 2011 improvement of the road. Lincoln Land Development moved to amend its complaint to assert claims relating to increased surface water drainage and damages caused by stormwater retention. The City denied a taking occurred and raised affirmative defenses, including claiming a public easement through prescriptive use, the existence of an express or implied easement, an easement by estoppel, or a government mandate required the project.

[¶4] The district court found Lincoln Land Development’s claims of nuisance and trespass were time-barred and dismissed them with prejudice in March 2015. In September 2017 a bench trial was held and claims based on increased surface water drainage, wetlands and stormwater retention ponds were dismissed. At the conclusion of the bench trial, the district court found that the City established a prescriptive easement in the pre-2011 road and that a taking occurred when additional property was used in the 2011 road improvement. A jury subsequently determined the value of the taking was $8,924.00 plus interest. The district court subsequently granted Lincoln Land Development’s motion for attorney fees of $122,705.50. The City appeals.

II

[¶5] The City argues no taking occurred because a permanent easement by implication, estoppel or an express grant of a right-of-way existed starting in the 1980s, which allowed the 2011 road improvement project to proceed without further action.

[¶6] An easement is an interest in land granting the right to use or control the land for a specific purpose. Wagner v. Crossland Constr. Co., Inc. , 2013 ND 219, ¶ 6, 840 N.W.2d 81. An easement may be created by an express grant or reservation contained in a written instrument, or may arise by implication under the facts and circumstances of a particular case. Id . An easement by estoppel exists when the owner of the servient estate permits another to use the land under foreseeable circumstance, the user relied on that belief, and injustice can be avoided only by establishment of the servitude. Hager v. City of Devils Lake , 2009 ND 180, ¶ 48, 773 N.W.2d 420. The district court’s underlying findings of fact in easement cases are subject to the clearly erroneous standard of review, but whether the underlying facts support the existence of an implied easement is a question of law subject to de novo review. Wagner , 2013 ND 219, ¶ 17, 840 N.W.2d 81.

[¶7] Section 47-05-02.1, N.D.C.C., requires an easement is properly described:

"Real property easements, servitudes, or any nonappurtenant restrictions on the use of real property, which become binding after July 1, 1977, shall be subject to the requirements of this section. These requirements are deemed a part of any agreement for such interests in real property whether or not printed in a document of agreement.

1. The area of land covered by the easement, servitude, or nonappurtenant restriction on the use of real property shall be properly described and shall set out the area of land covered by the interest in real property.

2. The duration of the easement, servitude, or nonappurtenant restriction on the use of real property must be specifically set out, and in no case may the duration of any interest in real property regulated by this section exceed ninety-nine years. The duration of an easement for a waterfowl production area acquired by the federal government, and consented to by the governor or the appropriate state agency after July 1, 1985, may not exceed fifty years. A waterfowl production area easement that exceeds fifty years or which purports to be perpetual may be extended by negotiation between the owner of the easement and the owner of the servient tenement. A waterfowl production area easement that exceeds fifty years or which purports to be permanent and is not extended by negotiation is void. The duration of a wetlands reserve program easement acquired by the federal government pursuant to the Food, Agriculture, Conservation, and Trade Act of 1990 after July 1, 1991, may not exceed thirty years.

3. No increase in the area of real property subject to the easement, servitude, or nonappurtenant restriction shall be made except by negotiation between the owner of the easement, servitude, or nonappurtenant restriction and the owner of the servient tenement."

[¶8] The City argues the district court minimized and discounted several critically important trial exhibits relating to its easement defense. However, in the forty-two-page order for judgment the district court fully explains how the various exhibits interact and why no written easement exists. Because the City did not provide transcripts as required by Rule 10(b), N.D.R.App.P., our review is limited to the evidence in the record and the findings and order for judgment issued by the district court.

[¶9] The findings reflect the managing partner of Lincoln Land Development testified the deed it received when the property was purchased did not contain a grant or reservation of a road. He also testified no easement was recorded with the Burleigh County recorder and no express easement was granted to the City after Lincoln Land Development purchased the property. Title insurance documents did not identify an easement for the road. The only recorded easement was from 1984 where the previous owner granted the city a "perpetual sewer line easement" consisting of "a strip of land twenty feet in width" for "the passage of wastewater from land in the City of Lincoln to be piped to the Lincoln wastewater site." The previous owner, a neighboring property owner, and a city council member all testified to the condition of the property before the 2011 improvements as a two-tire-track road approximately six to ten feet wide with vegetation sometimes growing in the middle of the tracks. Their testimony established the dirt road was not raised, had no adjacent ditches, and had no culverts.

[¶10] The City introduced an unrecorded plat from an abandoned construction project, a proposed plat, a 1985 letter from the mayor to the property owners regarding approval of a plat, a letter from counsel representing the 1985 property owners, and other historical records in relation to an abandoned "North Lincoln First Addition" which included the road in question. The district court found these documents "needed a storyteller" to explain how they worked together, and as a matter of law did not create an easement. The district court found the City did not introduce testimony to support the theory intended by these documents. The district court was not persuaded by the testimony of the former city engineer because he did not have personal knowledge of the documents and was merely reading the recently discovered evidence and offering an opinion without being designated as an expert witness. The City suggested a mandate by the North Dakota Department of Health required the road construction, but the district court noted no corroborating testimony existed from the Department of Health, and even if such a mandate existed, the City still was obligated to obtain easements for the project.

[¶11] The district court found the City failed to prove a permanent easement by implication, estoppel or express grant as required by N.D.C.C. § 47-05-02.1. On appeal we do not reweigh conflicting evidence and give due regard to the district court’s opportunity to judge the credibility of the witnesses. Brandt v. Somerville , 2005 ND 35, ¶ 12, 692 N.W.2d 144. Evidence supports the district court’s findings and we are not left with a definite and firm conviction the court erred in finding no easement existed by implication, estoppel or express grant. The findings are not clearly erroneous.

III

[¶12] The City argues the district court erred in finding the 2011 road improvement project constituted a taking because the City’s prescriptive easement in the pre-2011 road barred Lincoln Land Development from recovering on an inverse condemnation claim.

[¶13] This Court will not reverse a judgment supported by findings of fact which are not clearly erroneous and which are not induced by an erroneous view of the law. Keidel v. Rask , 304 N.W.2d 402, 403 (N.D. 1981). A prescriptive easement extinguishes a landowner’s right to inverse condemnation claims; however, the extent of a prescriptive easement is fixed by the use through which it was created, and use of the easement must be within the range of privileges asserted by the adverse party and acquiesced in by the owner of the servient tenement. Keidel v. Rask , 290 N.W.2d 255, 258 (N.D. 1980).

[¶14] The district court found the City obtained an...