Martin v. Rippel

• Decision Date: 12 July 1967
• Docket Number: No. 8435,8435
• Citation: 152 N.W.2d 332
• Parties: Norman L. MARTIN, Executor of the Last Will and Estate of Ben Martin, Deceased, Plaintiff and Appellant, v. Martin M. RIPPEL et al., Defendants, Lynn Nicola, Alyce B. Nicola, the Dakota National Bank of Bismarck, Patrick J. Fitzsimmons, Ralph Lang and Walter Lang, Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 332

152 N.W.2d 332

Norman L. MARTIN, Executor of the Last Will and Estate of Ben Martin, Deceased, Plaintiff and Appellant, v. Martin M. RIPPEL et al., Defendants, Lynn Nicola, Alyce B. Nicola, the Dakota National Bank of

Bismarck, Patrick J. Fitzsimmons, Ralph Lang and

Walter Lang, Defendants and Respondents.

Civ. No. 8435.

Supreme Court of North Dakota.

July 12, 1967.

Rehearing Denied Aug. 23, 1967.

Syllabus by the Court

1. When there is no settled statement of the case upon appeal, review by the Supreme Court is limited to matters appearing upon the face of the judgment roll.

2. To render possession adverse, it must not only be actual, but also visible, continuous, notorious, distinct, and hostile, and of such a character as to unmistakably indicate an assertion of claim of ownership by the occupant.

3. An enclosure is not sufficient to establish title by adverse possession where it is only temporary or is not maintained for the period of limitation prescribed by statute, and a fence, constructed in 1936, substantially destroyed in 1943, and not replaced until 1959 was not a 'substantial enclosure' as required by Section 28--01--11 (1), North Dakota Century Code.

4. The burden is upon the plaintiff to establish adverse possession for the statutory period by clear and convincing evidence, and testimony that one small field was cultivated for about four years and then abandoned because the soil was too sandy for successful cultivation, that the land was not used continuously for the pasturage of cattle, and that the plaintiff and other persons who paid the plaintiff had hunted on the land, does not establish improvement or cultivation as provided by Section 28--01--11(2), North Dakota Century Code.

5. As the disputed land in this appeal is accreted land, such land belongs to the owners of the bank lands (Sec. 47--06--05, N.D.C.C.), and the presumption against adverse possession would operate in favor of the bank land owners (Sec. 28--01--07, N.D.C.C.).

6. The evidence in this case has been examined and has been found to be insufficent to establish that plaintiff paid taxes on any of the land which is the subject matter of this appeal.

7. In an action to quiet title to realty, the plaintiff must rely upon the strength of his own title and not upon the weakness of that of his adversary.

8. An appellate court will not review a case on a theory different from that on which it was tried.

Milton K. Higgins, Bismarck, for plaintiff and appellant.

Vogel, Bair & Graff, Mandan, for defendants and respondents Patrick J. Fitzsimmons, Ralph E. Lang, and Walter Lang.

Zuger, Zuger & Bucklin, Bismarck, for defendants and respondents Lynn Nicola and Alyce B. Nicola.

PAULSON, Judge.

This is an appeal from two partial judgments involving actions to quiet title to certain real estate located in Township 137, Range 79, Morton County, North Dakota. The actions to quiet title involved approximately 1,200 acres of land and the trial court awarded certain acreage to the plaintiff, and none of the defendants appealed from this portion of the judgment. The defendants other than the parties to this appeal all defaulted. This appeal involves the remaining portion of the land, which land consists principally of the read estate lying between Auditor's Lot 1 and what was originally the east boundary of Lot 7 of Section 20, as well as Lots 1, 2, 3, and 4 in Section 29, all in Township 137, Range 79, Morton County, North Dakota. This property consists of 539.40 acres and constitutes accretions to the above-mentioned lots. The land involved in this appeal is a portion of the old Missouri River bed, and all of the parties to this action stipulated that the land which is involved in this action resulted from accretion to the riparian lots.

The district court decreed that the plaintiff was the owner of Lots 2 and 3 in Section 29, together with the accretions thereto. The court also decreed that the defendants, Lynn Nicola and Alyce B. Nicola, were the owners of Lot 7 in Section 20 with the accretions thereto; that the defendant Patrick J. Fitzsimmons was the owner of Lot 1 in Section 29 with accretions thereto; and the defendants Ralph E. Lang and Walter Lang were the owners of Lot 4 in Section 29 with accretions thereto. The trial court in making its findings relied upon an exhibit designated as Defendants' Exhibit AA, which is an engineer's plat designating the acreage accretions to which each of the riparian owners is entitled. We have included Exhibit AA to which we have added certain explanatory information for purposes of clarity. The court was not furnished with a metes-and-bounds description of each of the above tracts of land, but, based upon the engineer's plat, found and determined the accretion to Lot 7 to be 108.60 acres; the accretion to Lot 1 to be 91.0 acres; the accretion to Lots 2 and 3 to be 251 acres; and the accretion to Lot 4 to be 88.80 acres.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The plaintiff has appealed from the partial judgment entered in favor of the defendants Patrick J. Fitzsimmons, Ralph E. Lang, and Walter Lang; and from the partial judgment in favor of the defendants Lynn Nicola and Alyce B. Nicola. The plaintiff has demanded a trial de novo and served separate notices of appeal and furnished separate cost bonds. A settled statement of the case in the appeal concerning Fitzsimmons and the Langs was secured by the appellant, pursuant to stipulation of the respective counsel. The attorneys for the defendants Lynn Nicola and Alyce B. Nicola refused to stipulate to a settled statement of the case. The attorney for the plaintiff did not, as a step in the completion of the record on appeal, or prior to the hearing before this court, make any motion for a settled statement of the case in the district court, nor did he make a motion to remand the case to the district court at the time of the argument of the appeal.

This court now is confronted with the motion by the Nicolas to dismiss the appeal for lack of timely prosecution or, in the alternative, that the appeal be limited to a review of the judgment roll only, and that the appellant is not entitled to a trial de novo because he did not obtain a settled statement of the case. Section 28--18--06 of the North Dakota Century Code specifically provides the method and manner in which the record in a case for presentation to the Supreme Court shall be prepared. This statute provides, among other things, that:

'The record in a case for presentation to the trial court on a motion for a new trial or for judgment notwithstanding the verdict, or to the supreme court on appeal, shall be prepared as follows:

'1. Within thirty days after notice of the entry of judgment or of the order to be reviewed, or within such further time as the court shall allow, the moving party must procure a transcript of the evidence and furnish a copy thereof to the adverse party with a notice that at a time not less than fifteen nor more than thirty days after the service of such notice, he will present the same to the judge for certification as a correct transcript of the evidence and of all proceedings had and made matter of record by the official reporter, and that, at the same time, he will ask the judge for a certificate identifying the exhibits and depositions in the case; * * *'

A review of the record shows that there has not been a timely compliance with the statute for settlement of the statement of the case concerning the Nicola judgment. Since there is not a settled statement of the case, there is no evidence before this court for review. While absence of a settled statement of a case does not require a dismissal of an appeal, it limits a review of this court to matters appearing upon the face of the judgment roll. Cary v. Kautzman, 78 N.D. 875, 53 N.W.2d 99; Compson v. Olson (N.D.), 75 N.W.2d 319.

The appellant did not file any specifications of error, and a review of the judgment roll conclusively shows that there are no errors on the face of the judgment roll. Therefore, the judgment with reference to the property of the Nicolas must be affirmed.

The remainder of this opinion will be limited to a consideration of the appeal from the partial judgment entered by the trial court in favor of the defendants Patrick J. Fitzsimmons, Ralph E. Lang, and Walter Lang as to the accretions determined to have become a part of the riparian lots owned by them. The appellant predicates his argument on three basic points presented in his brief:

1. Continuous occupancy for twenty years, based upon written instruments indicating title in the appellant 2. That the defendants are barred from asserting any claims by virtue of the statute of limitations; and

3. The payment of taxes on riparian lands constitutes payment on the accretions thereto without specific mention of the accreted land.

The appellant states as his first contention that adverse possession commenced with the construction and continuous use of a surveyed fence which was originally built in September 1936 as a boundary. The appellant has cited several statutes which we set forth in their entirety:

'28--01--04. Actions for recovery or possession of real property--Limitations.--No action for the recovery of real property or for the possession thereof shall be maintained, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.' (N.D.C.C.)

'28--01--08. Adverse possession when based upon written instrument.--Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under a claim of title exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and...