Skogen v. Hemen Twp. Bd. Of Twp. Supervisors, 20090301.

• Decision Date: 14 May 2010
• Docket Number: No. 20090301.,20090301.
• Citation: 782 N.W.2d 638,2010 ND 92
• Parties: Al SKOGEN, Mike Skogen, and Jason Bonde, Plaintiffs and Appellantsv.HEMEN TOWNSHIP BOARD OF TOWNSHIP SUPERVISORS, Defendant and Appelleev.Torin Swartout and Kevin Swartout, Intervenors and Appellees.
• Court: North Dakota Supreme Court

782 N.W.2d 638

2010 ND 92

Al SKOGEN, Mike Skogen, and Jason Bonde, Plaintiffs and Appellants

v.HEMEN TOWNSHIP BOARD OF TOWNSHIP SUPERVISORS, Defendant and Appellee

v.Torin Swartout and Kevin Swartout, Intervenors and Appellees.

No. 20090301.

Supreme Court of North Dakota.

May 14, 2010.

COPYRIGHT MATERIAL OMITTED

Joseph J. Cichy, Bismarck, N.D., for plaintiffs and appellants.

Corey J. Quinton, Moorhead, MN, for defendant and appellee Hemen Township Board of Supervisors.

Tami Lyn Norgard, Fargo, N.D., for intervenors and appellees Torin Swartout and Kevin Swartout.

VANDE WALLE, Chief Justice.

[¶ 1] Al and Mike Skogen and their tenant, Jason Bonde, (“Skogens”) appealed from a judgment dismissing their complaint against the Hemen Township Board of Township Supervisors for damages from flooding to their farmland and for an order requiring the Board to place a culvert in a township road. We reverse and remand.

I

[¶ 2] The Skogens own and farm land in Hemen Township in Barnes County adjacent to and on the south side of a township road, and Torin and Kevin Swartout own land adjacent to and on the north side of the road. In 2007, Al and Mike Skogen asked the Board to install a culvert in the road to prevent flooding on their land and to facilitate drainage, and their request was considered at a November 1, 2007 township board meeting. In December 2007, the Board denied Al and Mike Skogen's request to install the culvert, and on January 15, 2008, they appealed to the district court, claiming that decision violated N.D.C.C. § 24-03-06. Al and Mike Skogen, the Board, and the Swartouts stipulated on March 4, 2008, to allow the Swartouts to intervene in that appeal. The parties' stipulation stated the “Swartout property is directly across the road from the Skogen property and would be impacted by the installation of any culvert” in the township road. In July 2008, the Board informed the parties that it was unable to transcribe the tape recording of the November 1, 2007 Board meeting for the record in that appeal, and in September 2008, the parties stipulated to dismiss the appeal “without prejudice and on the merits.” A judgment was filed on September 29, 2008, dismissing that appeal “without prejudice, on the merits.”

[¶ 3] Meanwhile, in a complaint dated March 6, 2008, the Skogens sued the Board, alleging it failed to replace a culvert in the township road when the Board reconstructed the road. The Skogens claimed the township road obstructed the natural north to northeast flow of water in the area in violation of N.D.C.C. § 24-03-06 and caused flooding and damages to their farmland in 2007 and would result in additional damages to their farmland in 2008. The Skogens alleged the State Engineer recommended a culvert for the township road, and they sought damages caused by the flooding and an order requiring the Board to place a culvert in the road.

[¶ 4] The Board answered, denying liability and asserting the Skogens' claims were “barred by all applicable immunities, including, but not limited to, discretionary immunity.” The Board acknowledged the Skogens' request for money damages negated any argument that their claims must be dismissed for failure to exhaust administrative remedies and conceded that N.D.C.C. § 58-14-01 authorized the Skogens' claim for damages. The district court granted the Swartouts' motion to intervene in the action, and they answered, alleging the Board had no duty to install a culvert in the township road. The Swartouts disputed that the Board had failed to replace a culvert when the township road was reconstructed. The Swartouts claimed the Skogens had drained wetlands on their property for several years, causing water to build up in an impoundment next to the township road and the Skogens wanted a culvert in the township road to drain the water in that impoundment onto the Swartouts' property. The Swartouts alleged the Skogens' demand for a culvert in the township road was previously litigated and the Skogens had voluntarily dismissed their appeal from the Board's denial of their request for a culvert.

[¶ 5] The district court dismissed the Skogens' complaint, concluding their claim for injunctive relief was not proper because North Dakota law allows an appeal from a township board decision denying placement of a culvert and they had failed to exhaust their administrative remedies. The court said it assumed the prior appeal was dismissed without prejudice because no party raised the issue of res judicata or collateral estoppel. The court also concluded, as a matter of law, N.D.C.C. § 32-12.1-03(3)(c) precluded an action for damages against a political subdivision for refusing to place a culvert in a road. The court subsequently denied the Skogens' motion for reconsideration.

II

[¶ 6] On appeal, the Skogens argue the district court erred in allowing the Swartouts to intervene in this action, which the Skogens claim is not about alleged illegal drainage, but is about an obstruction in a township road and a township's statutory duty to drain surface water through township roads. The Skogens argue the Swartouts' rights may be properly protected in a proceeding before the Barnes County Water Resource District regarding alleged illegal drainage. The Swartouts respond that the district court did not err in granting their motion to intervene to protect their property interest, because the Skogens' claim for relief includes a request for the installation of a culvert in a township road separating the Skogens' land from the Swartouts' land, which is the same issue that was litigated in the Skogens' prior appeal to the district court.

[¶ 7] Rule 24, N.D.R.Civ.P., provides for intervention as a matter of right and for permissive intervention. Under N.D.R.Civ.P. 24(a), a movant may intervene in an action as a matter of right if a statute confers an unconditional right to intervene, or if the movant claims an interest in property that is the subject of the action and the disposition of the action may impair or impede the movant's ability to protect that property interest. In considering whether a party may intervene as a matter of right under N.D.R.Civ.P. 24(a), we review a district court's findings of fact under the clearly erroneous standard of review. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, ¶ 13, 723 N.W.2d 112. The ultimate question whether a movant has a right to intervene is a question of law and is fully reviewable on appeal. Id. Historically, intervention has been liberally granted in North Dakota. Id.

[¶ 8] Here the district court said the Skogens' claims implicated the Swartouts' real property interests, specifically flooding of their real property, and met the standards for intervention under N.D.R.Civ.P. 24(a)(ii). The court explained the Board's interest was not coterminous with the Swartouts' interest and the Swartouts were situated so the disposition of this action may impair or impede their ability to protect their interest in their real property. The court recognized the Swartouts would be unable to seek relief from a water resource district if the court ordered installation of a culvert because the installation of a culvert in a township road is a matter for a township to decide under Kadlec v. Greendale Twp. Bd. of Supervisors, 1998 ND 165, ¶¶ 15-16, 583 N.W.2d 817. As a further explanation for granting the Swartouts' motion to intervene, the court cited the parties' stipulation from the dismissed appeal, which stated the “Swartout property is directly across the road from the Skogen property and would be impacted by the installation of any culvert” in the township road.

[¶ 9] We conclude the district court did not clearly err in its findings on the Swartouts' motion to intervene. The court did not err in deciding the Swartouts have an interest relating to “the property or the transaction that is the subject of the action” under N.D.R.Civ.P. 24(a)(ii) and the Swartouts are so situated that the disposition of this action may, as a practical matter, impair or impede their ability to protect that interest. As a matter of law, we conclude the court did not err in allowing the Swartouts to intervene in this action.

III

[¶ 10] The district court ultimately dismissed the Skogens' action without a trial and without excluding matters outside the pleadings. The court affectively dismissed the Skogens' action by summary judgment. See N.D.R.Civ.P. 12(b) (stating if court dismisses action and does not exclude matters outside pleading, a motion is treated as one for summary judgment under N.D.R.Civ.P. 56); Davidson v. State, 2010 ND 68, ¶ 11, 781 N.W.2d 72. We therefore review the Skogens' appeal under the standards for summary judgment, “which is a procedural device for promptly resolving a controversy on the merits without a trial if there are no disputed issues of material fact and inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.” Davidson, at ¶ 11.

[¶ 11] The Skogens argue the district court erred in deciding N.D.C.C. § 32-12.1-03(3)(c), setting forth limitations on liability of political subdivisions, precluded their action for damages against the Board. They argue the Board has a mandatory statutory duty under N.D.C.C. § 24-03-06 to construct and reconstruct township roads in a manner that does not obstruct the natural flow and drainage of surface water. They argue the Board's failure to comply with that mandatory duty when it reconstructed the road constitutes a breach of its statutory obligation and renders it liable for damages under N.D.C.C. §§ 32-12.1-03(1) and 58-14-01. They argue the district court misapplied N.D.C.C. § 32-12.1-03(3)(c) in a manner that renders N.D.C.C. §§ 32-12.1-03(1) and 58-14-01 null and void and immunizes the Board from damage claims resulting from the breach of its statutory duty. They also claim there is no administrative remedy that allows them to recover damages, and they have...