Nowling v. BNSF RAILWAY

• Citation: 2002 ND 104,646 N.W.2d 719
• Decision Date: 11 July 2002
• Docket Number: No. 20010302.,20010302.
• Parties: Walter NOWLING, Carol Nowling, Rose Misialek, and Julian Lizakowski, Personal Representative of the Stephie Lizakowski Estate, Plaintiffs and Appellees, v. BNSF RAILWAY, Defendant, and and Bill Slominski d/b/a Minto Grain, LLC, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

646 N.W.2d 719

2002 ND 104

Walter NOWLING, Carol Nowling, Rose Misialek, and Julian Lizakowski, Personal Representative of the Stephie Lizakowski Estate, Plaintiffs and Appellees, v. BNSF RAILWAY, Defendant, and and Bill Slominski d/b/a Minto Grain, LLC, Defendant and Appellant.

No. 20010302.

Supreme Court of North Dakota.

July 11, 2002.

Rehearing Denied August 15, 2002.

Robert C. Fleming (argued), and Neil W. Fleming (appeared), Fleming & DuBois, Cavalier, for plaintiffs and appellees.

Steven C. Ekman, Welch and Ekman, Grafton, for defendant and appellant.

David C. Thompson, Grand Forks, for amicus curiae Mark Tibert & Suzi Tibert, Melvin Tibert & Cathy Tibert.

Ronald F. Fischer, Pearson Christensen, Grand Forks, and Nicholas B. Hall, Hodny Currie Lawyers, Grafton, for amicus curiae City of Minto.

VANDE WALLE, Chief Justice.

[¶ 1] Bill Slominski, doing business as Minto Grain, LLC ("Slominski"), appealed from a judgment quieting title to a tract of land to Walter Nowling, Carol Nowling, Rose Misialek, and Julian Lizakowski, as personal representative of the estate of Stephie Lizakowski ("the Nowling group"). We hold a railroad right of way for an operating railroad line is a public highway under N.D. Const. art. XII, § 13 and is not subject to adverse possession or acquiescence. We reverse and remand.

I

[¶ 2] This quiet title action involves competing claims to a rectangular tract of land about 460 feet long and between 29 and 42 feet wide. The disputed tract of land is located on the east edge of a railroad right of way that extends two hundred feet from the center of an operating Burlington Northern railroad line in Minto. The 200-foot right of way runs north and south, parallel to Burlington Northern's railroad line. The east edge of the right of way includes a road known as Kilowatt Drive which is adjacent to the disputed strip of land and has a fifteen-foot wide ditch on the east side. The disputed tract of land is situated between four parcels of land owned by members of the Nowling group and land leased by Burlington Northern to Slominski under an "indefinite term lease" for the "sole and exclusive purpose of maintaining and operating" a grain elevator. Burlington Northern's predecessor in interest purchased the railroad right of way from private landowners in 1881.

[¶ 3] In 1999, Slominski and the Nowling group had a disagreement regarding use of the disputed tract of land. The Nowling group brought this action against Slominski and Burlington Northern to quiet title to the land. The Nowling group alleged they were entitled to quiet title under the doctrines of adverse possession or acquiescence. They alleged that they, or their predecessors in interest, had been in actual, open, hostile, continuous, and exclusive possession of the disputed land for more than twenty years and were entitled to ownership by adverse possession. They also alleged the east edge of Kilowatt Drive had been the boundary between their land and the railroad right of way for 100 years, and Burlington Northern's silence constituted acquiescence in the road serving as the boundary. Burlington Northern and Slominski answered, alleging the actual property line between the railroad right of way and the Nowling group's property was several feet east of Kilowatt Drive. Burlington Northern and Slominski claimed that the railroad right of way was a protected public highway under N.D. Const. art. XII, § 13, and, alternatively, that the Nowling group was not entitled to quiet title by adverse possession or acquiescence. In January 2001, Burlington Northern conveyed the leased land to Slominski by quitclaim deed that reserved to Burlington Northern a fifty-foot wide easement for roadway and utilities together with all necessary appurtenant fixtures. Burlington Northern was then dismissed from the action by stipulation.

[¶ 4] The trial court did not explicitly address Slominski's "public highway" claim under N.D.Const. art. XII, § 13, and instead found:

[The Nowling group] or their predecessors in interest have possessed [their four] parcel[s of land] since 1972 and prior to that. That their possession has been continuous.

XIV.

That the plaintiff Walter and Carol Nowling have over the past 24 years, 1976-1999 reshaped the ditch, planted grass, trimmed old elm trees, replanted new trees after removing the elm trees, all constituting acts of possession and ownership. That the aforementioned acts took place on at least portions of the disputed strip of property. There is a clear indication in the testimony of a small ditch on the east side of Kilowatt drive. Based on the photographic exhibits appears to be at most fifteen feet (15') in width.

XV.

The BNSF railway, the owner of the disputed property did not at any time warn Nowlings of their trespass, or take any action whatsoever to stop their use and enjoyment of this property. By their silence, BNSF acquiesced in the east edge of Kilowatt drive as the boundary or certainly the east edge of the ditch to be the boundary. The [Nowling group] removed old elm trees and replanted an entire row of new trees in approximately 1989. The railroad did nothing, said nothing. According to the survey these trees were planted at least nine feet (9') onto [Slominski's] property. These trees were allowed to grow over the past several years to approximate heights of fifteen to twenty feet (15'-20'). At no time did any of the defendants object until 1999.

The Court finds that the east edge of Kilowatt drive and the east edge of the ditch, although varying slightly from year to year were distinct, certain and nonspeculative, similar to Knutson [v.Jensen, 440 N.W.2d 260 (N.D.1989)]. This Court is allowing a fifteen-foot (15") [sic] strip on the basis that this portion could have been viewed by the defendants as part of the roadway. Many roadways in rural North Dakota commonly have a ditch area that is considered part of the roadway.

The court decided the Nowling group clearly and convincingly established the parties had acquiesced in a boundary between their property, which, although there had been slight variations, was the beginning of the Nowling group's yard. The court quieted title to the Nowling group in the land east of the ditch, which resulted in the Nowling group receiving title to a rectangular strip of land 458.8 feet long and from 14 to 27 feet wide and located 15 feet east of Kilowatt Drive.

II

[¶ 5] Slominski argues a railroad right of way is a public highway under N.D.Const. art. XII, § 13, which may not be taken by adverse possession or acquiescence. The Nowling group responds there is no constitutional prohibition against adverse possession of this railroad right of way, because Burlington Northern's predecessor in interest originally purchased the right of way from private landowners and, although Burlington Northern operates a train on the right of way, the actual disputed tract of land has been abandoned and not used by the railroad since at least 1972.

[¶ 6] Article XII, § 13, N.D. Const., provides that "[r]ailways heretofore constructed or that may hereafter be constructed in this state are hereby declared public highways."

[¶ 7] In Lincoln v. Great Northern Ry. Co., 26 N.D. 504, 144 N.W. 713 (1913), this Court considered an appeal involving a landowner's action to compel a railroad to reduce the elevation of its track at a private crossing. Initially, the landowner had deeded the railroad a right of way through his land for the track, and the railroad established a private crossing over the track for the landowner. Later, the railroad raised the grade of the track to accommodate a raised grade at a nearby bridge, and because of an adjacent road, the railroad was unable to retain a gradual approach to the private crossing. The landowner contended he had acquired an interest in the railroad property itself, and he sued the railroad to enforce his claim in the private crossing. This Court held the pleadings established the railroad had not been ousted from the crossing, and during the entire time of the landowner's alleged prescription, the railroad was using the crossing in the same manner it was using the rest of its track. Lincoln, 26 N.D. at 509, 144 N.W. at 714. This Court concluded the landowner had not proven a prescriptive right to the private crossing. Id. at 510-11, 144 N.W. at 714. On petition for rehearing, the landowner claimed his complaint alleged the railroad had "granted [him] a private way over its roadbed and railway tracks" and the railroad's answer admitted the existence of a "private way." Id. at 511, 144 N.W. at 715. Although this Court did not explicitly cite the predecessor to N.D.Const. art. XII, § 13, see 1889 N.D. Const. art. VII, § 142, it nevertheless recognized the public interest involved when a railroad right of way is used for railroad purposes:

the railway company had no right to grant any easement in the land inconsistent with its own use of the right of way for railroad purposes. This for the reason that the railroad company is itself a public servant and its own interest in the land is largely in the nature of an easement.

Lincoln, 26 N.D. at 511, 144 N.W. at 715.

[¶ 8] In A & M Properties, Inc. v. Norfolk Southern Corp., 203 W.Va. 189, 506 S.E.2d 632, 633-34, 637 (1998), the West Virginia Supreme Court of Appeals held a railroad track was considered a public highway under W. Va. Const. art. XI, § 59, which provided that "[r]ailroads heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways." The court concluded because adverse possession did not lie against a public highway, no party could establish an interest in a railroad right of way by adverse possession as long as the track was used for railroad purposes. A & M Properties, at 637.

[¶ 9] In Gustin v. Scheele, 250...