State v. Herzig

• Decision Date: 28 November 2012
• Docket Number: No. 20110304.,20110304.
• Citation: 825 N.W.2d 235,2012 ND 247
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Daniel Erwin HERZIG, Defendant and Appellant.
• Court: North Dakota Supreme Court

825 N.W.2d 235

2012 ND 247

STATE of North Dakota, Plaintiff and Appellee

v.Daniel Erwin HERZIG, Defendant and Appellant.

No. 20110304.

Supreme Court of North Dakota.

Nov. 28, 2012.

Christine A. Harris, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

Rodney E. Pagel, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Daniel Herzig appeals from a judgment entered after a jury found him guilty of criminal trespass, a class B misdemeanor. Under State v. Meyer, 361 N.W.2d 221 (N.D.1985), we conclude this dispute was ill-suited for a criminal action and instead should have been resolved in a civil action because there existed a legitimate dispute as to whether the area upon which Daniel Herzig was alleged to have trespassed was a public road by prescription under N.D.C.C. § 24–07–01. Under Meyer, we reverse the judgment and remand to the district court to enter a judgment of acquittal.

I

[¶ 2] Daniel Herzig and Karla Herzig formerly were husband and wife. Karla Herzig owns a tract of land located in Section 26, Township One Hundred Fifty-six North, Range Eighty-five West, Ward County, and she owns all of the land located in Section 25, which is located immediately to the east of Section 26. The land owned by Karla Herzig in Sections 25 and 26 borders a section line separating the two sections. The section line extends from north to south, and except for the southern end, it is impassable because of the existence of coulees and wooded terrain. Where the section line becomes impassable, a road diverts from the section line in a northwesterly direction, passing Karla Herzig's farmstead located approximately in the middle of the eastern half of Section 26, and connects with a long driveway extending north to U.S. Highway 2.

[¶ 3] In 2010, Karla Herzig planted flax on her land in Sections 25 and 26 as well as over the passable portion of the section line road adjoining the two sections. She posted “no hunting or trespassing” signs with her name affixed to the signs on both sides of the southern approach to the section line road separating Sections 25 and 26. In August 2010, the State charged Daniel Herzig with criminal trespass and criminal mischief under N.D.C.C. §§ 12.1–22–03 and 12.1–21–05, alleging that, “knowing ... he was not licensed or privileged to do so, [he] entered or remained on the property of Karla Herzig after [she] had posted in a manner reasonably likely to come to the attention of intruders that trespassing was not allowed,” and “willfully damaged a flax field owned by [her].” On the basis of a police officer's “uniform incident report,” the State specifically allegedDaniel Herzig drove his vehicle northbound on the section line separating Sections 25 and 26 and damaged flax planted over the section line by Karla Herzig. The State also alleged Daniel Herzig knowingly left the section line when it became impassable and traveled northwest on a road located on land owned by Karla Herzig within Section 26, eventually turning his vehicle around and leaving the area the same way he had entered.

[¶ 4] Daniel Herzig moved to dismiss both charges, arguing that the section line upon which he traveled was a road open to the public and that, as a result, he did not commit either offense. In its response brief, the State conceded section lines are roads open for public travel, and it therefore dismissed the criminal mischief charge. The State did not dismiss the criminal trespass charge, however, because it argued Daniel Herzig left the section line where it became impassable and traveled on a road located entirely upon Karla Herzig's property, ignoring the “no hunting or trespassing” signs she had posted on both sides of the southern approach to the section line. The State alleged Daniel Herzig committed criminal trespass when he knowingly traveled on Karla Herzig's posted property without her permission. After a hearing, the district court denied Daniel Herzig's motion to dismiss the criminal trespass charge.

[¶ 5] At trial, Karla Herzig testified she posted her land with “no hunting or trespassing” signs on both sides of the southern approach to the section line separating Sections 25 and 26. She also testified she posted her land where the road diverted from the section line, although the State offered exhibits showing only that she had posted her land on both sides of the southern approach to the section line. Daniel Herzig testified that Karla Herzig had not posted the land on either side of the section line before he drove his vehicle northbound on the section line in July 2010. He admitted that after reaching a point where the section line road became impassable, he continued northwest on a road that led entirely onto land owned by Karla Herzig in Section 26 until he reached a Souris River Telecommunications (“SRT”) truck blocking the road at the bottom of a coulee. After encountering the SRT crew working near the coulee, he testified he turned his vehicle around and exited the area the same way he had entered. Daniel Herzig testified the road previously had been used by law enforcement officers, mail carriers, UPS and FedEx drivers, and other members of the community. Karla Herzig responded that the only people who had rightfully used the road were those with permission from her, or from Daniel Herzig during their marriage. Daniel and Karla Herzig presented conflicting evidence as to whether the road that diverted from the section line was open to the public.

[¶ 6] Daniel Herzig moved for a judgment of acquittal, both after the State's case-in-chief and before the district court submitted the case to the jury. The court denied both motions. Additionally, before the court submitted the case to the jury, Daniel Herzig requested a proposed jury instruction on legitimate dispute. He borrowed language for the proposed instruction from this Court's decision in Meyer, 361 N.W.2d at 222–23, in which this Court held a legitimate dispute existed as to whether the necessary requirements were met to make the disputed road a “road by prescription” under N.D.C.C. § 24–07–01 and concluded the proper procedure to resolve the controversy was through a civil action rather than a criminal prosecution. The district court denied Daniel Herzig's proposed instruction, and the jury found him guilty of criminal trespass.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Daniel Herzig timely appealed from the criminal judgment under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 8] Daniel Herzig argues the district court erred in denying his motion to dismiss, his motions for judgment of acquittal, and his requested jury instruction on legitimate dispute.

A

[¶ 9] In Small v. Burleigh Co., 225 N.W.2d 295 (N.D.1974), this Court explained the history and law regarding free public travel on section lines:

Our case law settles some issues. It is established that the United States in 1866, by the passage of Section 2477, Revised Statutes, made an offer of section line easements on public land, and that the offer was accepted by the Territory of Dakota when it adopted Chapter 33, Laws of Dakota Territory, 1870–1871, codified as Chapter 29, Section 37 of the Political Code of 1877. Walcott Township v. Skauge, 6 N.D. 382, 71 N.W. 544 (1897); Northern Pacific Railway Company v. Lake, 10 N.D. 541, 88 N.W. 461 (1901); Koloen v. Pilot Mound Township, 33 N.D. 529, 157 N.W. 672 (1916); Faxon v. Civil Township of Lallie, 36 N.D. 634, 163 N.W. 531 (1917); Huffman v. West Bay Township, 47 N.D. 217, 182 N.W. 459 (1921); and Hillsboro National Bank v. Ackerman, 48 N.D. 1179, 189 N.W. 657 (1922).

The 1871 legislation read:

“That hereafter all section lines in this Territory shall be and are hereby declared public highways as far as practicable; Provided, That [they shall not interfere with existing highways and shall not apply to a certain portion of Pembina County].”

The rights granted and accepted by the cited statutory provisions have never been surrendered. Huffman v. West Bay Township, supra;Hillsboro National Bank v. Ackerman, supra.

In North Dakota the rights of the public to section line highways and to streets are easements only, limited to the right to travel and other rights incident thereto, and the owner of the adjoining land owns the fee title to the property included in the 33 foot easement up to the section line. Northern Pacific Railway Company v. Lake, supra;Donovan v. Allert, 11 N.D. 289, 91 N.W. 441 (1902).

No action by the county or township board is necessary to “establish” or “locate” a highway upon a section line, and any action purporting to locate or establish a highway upon a section line is superfluous. Huffman v. West Bay Township, supra.

Small, at 296–97. This Court further held:

We hold that congressional section lines outside the limits of incorporated cities, unless closed by proceedings permitted by statute, are open for public travel without the necessity of any prior action by a board of township supervisors or county commissioners.

Small, at 300.

[¶ 10] The section line road here had never been closed under a proceeding permitted by statute. Karla Herzig barricaded, plowed up, and planted over the established section line road despite the statutory prohibitions against all these acts. SeeN.D.C.C. § 24–12–02. When Daniel Herzig drove over the improperly planted flax on the section line, as he was permitted to do, Karla Herzig complained to law enforcement. Although Daniel Herzig explained to law enforcement both the section line law and the road by prescription law, he nevertheless was charged with driving over the flax. When the charge for driving over the flax on the section line was dismissed, the State persisted with the criminal trespass charge for driving on the road where the flax ended and the road deviated from the section line.

B

[¶ 11] ...