Tibert v. Minto Grain, LLC, 20030208.

• Decision Date: 30 June 2004
• Docket Number: No. 20030208.,20030208.
• Citation: 2004 ND 133,682 N.W.2d 294
• Parties: Mark TIBERT and Suzi Tibert, Plaintiffs and Appellants, v. MINTO GRAIN, LLC, Bill Slominski, and Kathy Slominski, Defendants and Appellees.
• Court: North Dakota Supreme Court

682 N.W.2d 294

2004 ND 133

Mark TIBERT and Suzi Tibert, Plaintiffs and Appellants, v. MINTO GRAIN, LLC, Bill Slominski, and Kathy Slominski, Defendants and Appellees.

No. 20030208.

Supreme Court of North Dakota.

June 30, 2004.

David C. Thompson, David C. Thompson, P.C., Grand Forks, N.D., for plaintiffs and appellants.

Scott J. Landa, Zimney Foster P.C., Grand Forks, N.D., for defendants and appellees; submitted on brief.

NEUMANN, Justice.

[¶ 1] Mark and Suzi Tibert (collectively known as "Tiberts") appeal from the trial court's judgment in an action to quiet title and for declaratory relief against Minto Grain, LLC, and Bill and Kathy Slominski (collectively known as "Minto Grain"). We affirm.

I

[¶ 2] Minto Grain, LLC, is located on former right-of-way property once owned by Burlington Northern Santa Fe Railroad ("BNSF") within the City of Minto. Bill and Kathy Slominski are the sole members of Minto Grain, LLC. Minto Grain, LLC, purchased the right-of-way property in 2001, and BNSF delivered a quit-claim deed, reserving certain mineral rights and roadway easements. The Tiberts own property immediately to the east of and abutting land owned by Minto Grain, LLC. The Tiberts concede Minto Grain, LLC, is the legal owner of the former BNSF right-of-way property, but assert an ownership in the property by virtue of adverse possession and acquisition by acquiescence. A road, known as Kilowatt Drive, runs north and south on Minto Grain's property, the former right-of-way property once owned by BNSF. The Tiberts have been using Kilowatt Drive, rather than their true property line forty feet east of Kilowatt Drive, as the boundary between their property and Minto Grain's property. The Tiberts argue the line marked by the edge of the road has been used for approximately one hundred years as the boundary between the railroad right-of-way and the property the Tiberts currently own.

[¶ 3] The Tiberts filed an action against Minto Grain in October 2001. The Tiberts' complaint asserted Minto Grain, LLC, claims legal title to the disputed property through a quit-claim deed recorded January 23, 2001. However, the complaint sets forth two causes of action. In Count I of the complaint, the Tiberts allege ownership of the property through the doctrine of adverse possession. The Tiberts assert they had exclusive, hostile, open, notorious, and continuous possession of the property for at least twenty years, the prescribed statutory period for adverse possession. In Count II, the Tiberts alleged ownership through the doctrine of acquiescence because, for approximately 100 years, Kilowatt Drive has been used as a boundary between Minto Grain's right of way and the Tiberts' property. According to Count II, neither Minto Grain nor its predecessors attempted to correct this situation and the silence amounts to acquiescence. Minto Grain answered the complaint on August 27, 2001.

[¶ 4] On October 9, 2002, Minto Grain moved for judgment on the pleadings, under Rule 12(c), North Dakota Rules of Civil Procedure. The trial court dismissed the Tiberts' action, holding this Court's decision in Nowling v. BNSF Railway, 2002 ND 104, 646 N.W.2d 719, was dispositive of Tiberts' claims of adverse possession and acquiescence. The trial court also denied the Tiberts' contention that they were entitled to relief, under N.D.C.C. § 49-09-04.2, because this issue was not pled in the complaint, and the Tiberts did not move to amend the complaint to add that cause of action.

[¶ 5] On appeal, the Tiberts argue the trial court erroneously determined that our decision in Nowling v. BNSF Railway, 2002 ND 104, 646 N.W.2d 719, effectively adjudicated all issues of title implicated in the Tiberts' cause of action. The Tiberts also argue the trial court erred in failing to grant the appropriate deferential and liberalized construction to the Tiberts' complaint.

II

[¶ 6] A trial court's decision for granting judgment on the pleadings under Rule 12(c), N.D.R.Civ.P., is reviewed de novo. Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir.2002)

. A party may move for judgment on the pleadings, under our civil rules of procedure:

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Rule 12(c), N.D.R.Civ.P. Here, matters outside the pleadings were not presented to the trial court.

[¶ 7] When reviewing dismissal of a complaint after a judgment on the pleadings, under Rule 12(c), N.D.R.Civ.P.:

we recognize that a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The court's inquiry is directed to whether or not the allegations constitute a statement of a claim under Rule 8(a), N.D.R.Civ.P., which sets forth the requirements for pleading a claim and calls for a short and plain statement of the claim showing that the pleader is entitled to relief. The complaint is to be construed in the light most favorable to the plaintiff, and the allegations of the complaint are taken as true. The motion for dismissal of the complaint should be granted only if it is disclosed with certainty the impossibility of proving a claim upon which relief can be granted.

McCroskey v. Cass County, 303 N.W.2d 330, 332 (N.D.1981) (citations and quotations omitted).

[¶ 8] Under North Dakota's notice pleading requirements, a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." N.D.R.Civ.P. 8(a); Estate of Hill, 492 N.W.2d 288, 296 (N.D. 1992).

III

[¶ 9] On appeal, the Tiberts argue the trial court improperly dismissed their claims to the disputed property. Specifically, the Tiberts assert the trial court erroneously determined that our decision in Nowling v. BNSF Railway, 2002 ND 104, 646 N.W.2d 719, effectively adjudicated all issues of title implicated in the Tiberts' cause of action. Rather, the Tiberts assert the application of Nowling raises serious questions as to whether Minto Grain possesses valid title through the quit-claim deed from BNSF.

[¶ 10] In Nowling, we held an operating railroad's right of way was considered a public highway, under provisions of the North Dakota Constitution, and was therefore not subject to adverse possession or the doctrine of acquiescence. Nowling, 2002 ND 104, ¶ 14, 646 N.W.2d 719.

[¶ 11] Here, the trial court determined "[i]t is clearly evident that the [Tiberts'] complaint presents two causes of action—one seeking relief by way of adverse possession, and one seeking relief by way of the acquiescence doctrine." Indeed, Count I, paragraph IV, of the Tiberts' complaint states, "the [Tiberts] are the owners of the real property ... by adverse possession," and Count II, paragraph IX, states, "[Minto Grain] and its predecessors [sic] silence amounts to acquiescence in placing the boundary line along ... Kilowatt Drive." These are the only two counts set forth in the Tiberts' complaint; no other theories of recovery were pled.

[¶ 12] The trial court then determined Nowling eliminated any remedy available to the Tiberts, on the basis of the two causes of action alleged in their complaint. According to the trial court:

Minto Grain's title was acquired from BNSF on or about January 23, 2001. Before that the property was held by BNSF and was railroad right of way property. Consequently, it is impossible by the ruling contained in Nowling for the plaintiffs to acquire this property by adverse possession or acquiescence because it was impossible for them to claim it for a 20 year period during the time it was railroad right of way property—which was up until January 23, 2001.

[¶ 13] After reviewing the pleadings, we agree with the trial court's conclusion. Our decision in Nowling eliminated any grounds for relief, under either adverse possession or acquiescence, in the Tiberts' case. The pleadings contain no allegation of BNSF's abandonment of the disputed property, nor has there been any indication that the disputed property is anything other than a railroad right of way. See Nowling, 2002 ND 104, ¶ 12,

646 N.W.2d 719 (holding, "[w]e decline, however, to parse part of an operating railroad's right of way on an allegation that part of the land has been abandoned or not subject to railroad operations. See N.D.C.C. § 49-09-04.2"). In fact, the Tiberts' brief on appeal states, "The fact that the subject real property involved ... is all `railroad right-of-way' can scarcely be questioned now."

[¶ 14] The Tiberts' theories of recovery pled in the complaint, specifically the theories of adverse possession and acquiescence, are without merit, under our holding in Nowling, and, therefore, the district court properly dismissed the Tiberts' complaint.

IV

[¶ 15] The Tiberts argue that Nowling did not effectively adjudicate all issues, because Minto Grain's title is questionably void because BNSF failed to comply with N.D.C.C. § 49-09-04.2 (requiring a railroad, once it abandons a line or discontinues service, to first offer the land for public use and then to offer it to other parties or persons, prioritized by statute.) In support of their argument, the Tiberts proclaim our decision in Nowling as significant to this case because it was the first time we addressed N.D.C.C. § 49-09-04.2. This argument is an attempt to raise an issue not properly pled before the trial court.

[¶ 16] The Tiberts argue the trial court erred in failing to grant the appropriate deferential and liberalized construction to the complaint in the instant action. Specifically, the Tiberts...