Zueger v. Boehm

• Court: North Dakota Supreme Court
• Writing for the Court: TEIGEN; TEIGEN
• Citation: Zueger v. Boehm, 164 N.W.2d 901 (N.D. 1969)
• Decision Date: 07 February 1969
• Docket Number: No. 8496,8496
• Parties: Arthur ZUEGER, Emil Zueger, Jr., Paul Zueger, Sonja Zueger, and David Zueger, Plaintiffs and Appellants, v. Leo BOEHM, and Morton County, a Public Corporation, Defendants and Respondents. Civ.

Page 901

164 N.W.2d 901

Arthur ZUEGER, Emil Zueger, Jr., Paul Zueger, Sonja Zueger and David Zueger, Plaintiffs and Appellants, v. Leo BOEHM, and Morton County, a Public Corporation Defendants and Respondents.

Civ. No. 8496.

Supreme Court of North Dakota.

Feb. 7, 1969.

Syllabus by the Court

1. Under Rule 56(c), N.D.R.Civ.P., the moving party is entitled to a summary judgment, if it appears there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.

2. The state has control of its public highways in its sovereign capacity, and it may exercise its power directly or delegate it to any properly constituted body.

3. The Legislature has bestowed upon the county commissioners of the various counties power and authority to establish, improve, and maintain a county road system within the county and, in addition, has delegated to the county commissioners jurisdiction over the highways in unorganized territory of the county.

4. In unorganized territory of a county, the county commissioners shall appoint a road overseer of highways who shall have direct charge of the construction of all highways within unorganized territory which are not a part of the state or county road systems.

5. An issue which is neither raised nor considered by the trial court cannot be raised for the first time on appeal.

6. The county commissioners may contract for the construction of a grade upon a public highway located in an unorganized township with a private individual, either for or without compensation. However, the construction by the private individual must be carried out under the direction of the county road overseer of highways, and the county remains subject to all statutory provisions applicable to the improvement as if it were constructed by the county under its jurisdiction over highways in unorganized territory.

Vogel, Bair & Graff, Mandan, for plaintiffs and appellants.

Richard P. Gallagher, Mandan, for defendant and respondent Leo Boehm.

Lester J. Schirado, Morton County State's Atty., for defendant and respondent Morton County.

TEIGEN, Chief Justice.

This appeal is from summary judgments of dismissal of the plaintiffs' complaint.

The plaintiffs brought action to enjoin the construction of a road grade upon an unimproved section line which bisects the plaintiffs' farm, and also seek damages for trespass and severance. The defendants separately moved for summary judgment of dismissal of the plaintiffs' complaint. During the summary judgment proceedings the parties stipulated that the plaintiffs' claim for damages be stricken from the action and reserved for another action to be brought later, if the plaintiffs prevail in defending against the motion for summary judgment of dismissal. The trial court granted the defendants' motions for dismissal and separate summary judgments were entered dismissing the action as against each of the defendants. The plaintiffs appealed.

It appears from the pleadings and the stipulation of facts that the defendant Boehm was desirous of having the section line in question improved so he could use it to travel from his farm to U.S. Highway No. 10. The record does not disclose what other highways, if any, serve his farm. It was an unimproved section line and was impassable for use by vehicles and equipment for part or all of each year. The section line is located in an unorganized township. The defendant Boehm appeared before the board of county commissioners and requested the section line be opened. The county commissioners by resolution declared the section line 'to be open' for highway purposes and directed the state's attorney to give notice to the adjacent property owners to remove fences located within thirty-three feet on either side of the section line within thirty days. Following this action some of the plaintiffs appeared before the board of county commissioners at its next meeting in regard to the subject; however, the commissioners 'determined that the order to open the section line stand, but the county spend no money on building a highway or bridge which would be needed.' The salient parts of the resolutions passed by the county commissioners at those two meetings are as follows:

(Meeting of June 2, 1964)

'WHEREAS, Leo Boehm has requested that the following described section line be opened to public travel and specifically to enable said person to obtain access from his farm residence to U.S. Highway No. 10:

'WHEREAS, said section line is presently fenced; and

'WHEREAS, this appears to be a proper case therefore:

'NOW THEREFORE, IT IS HEREBY ORDERED, by the Board of Morton County Commissioners that, the following described section line is hereby declared to be open and the States Attorney is directed to give written notice to the owner or owners of land adjacent thereto to remove within thirty (30) days of the mailing of said notice, all fences within 33 feet of each side of said line.'

(Meeting of July 7, 1964)

'A hearing was held at this time on the Order of the Board dated June 2nd, 1964, opening the section line between Sections 17 & 18 and that part of Sections 19 & 20 north of U.S. Highway No. 10, Township 139, Range 82. Present at the hearing were Wm. C. Kelsch, States Attorney; Maurice LaGrave, Leo J. Boehm, Robert Vogel, Art Zueger and Paul Zueger.

'All parties were given an opportunity to be heard and after discussing the matter the board determined that the order to open the section line stand, but that the County spend no money on building a highway or bridge which would be needed.'

Thereafter, the defendant Boehm, at his own expense, caused the section line in question to be improved by the construction of a road grade so as to make it passable for public travel. It was stipulated that the road, as graded, is located upon the section line, extending not more than thirty-three feet on either side thereof.

The question presented on this appeal is whether an abutting landowner is entitled to enjoin a private citizen from improving a section line for the purpose of public travel, where such improvement consists of the construction of a road grade on an otherwise impassable section line, and at his own expense and direction, after the county commissioners (the section line being located in an unorganized township) by resolution opened the section line for public travel.

The appellants make three contentions on this appeal to establish that the trial court erred in dismissing the action.

First, that there are genuine issues of material facts for decision, and it therefore was improper to grant the summary judgments.

Second, it is claimed that the defendant Boehm, as a private person, has no authority in law to change the contour of land, regardless of whether it happens to be upon a section line, and regardless if it is a necessary alteration to allow the use of the section line for public travel. The plaintiffs argue that the defendant Boehm, as a member of the public, has a right to the use of the thirty-three feet on each side of the section line for travel in its natural condition, but that only the county, in an unorganized township, has the right to construct or maintain a road, or to change the contour of the land as it exists in its natural state.

Third, the plaintiffs argue that the county commissioners cannot open a section line for public travel in an unorganized township (as distinguished from establishing it as a highway) without notice to the owner of the adjoining land and, further, that the county commissioners are not authorized by law to allow an individual to construct a grade upon a section line as a project under his own control and direction.

The arguments in support of these contentions are based on the principle that the construction and maintenance of public highways is a governmental function, and that the governmental unit charged with the responsibility cannot delegate this power to an individual and thus relieve itself of its legal responsibility.

We will first consider whether this was a proper case for the entry of summary judgments of dismissal.

Under Rule 56(c), N.D.R.Civ.P., the moving party is entitled to summary judgment, if it appears that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Wolff v. Light, N.D., 156 N.W.2d 175; Titus v. Titus, N.D., 154 N.W.2d 391; Verry v. Trenbeath, N.D., 148 N.W.2d 567; Lang v. General Motors Corporation, N.D., 136 N.W.2d 805; Fire Ass'n of Philadelphia v. Vantine Paint & Glass Co. of Bismarck, N.D., 133 N.W.2d 426; Mondy v. Gjesdal, N.D., 123 N.W.2d 33; Heasley v. State, N.D., 115 N.W.2d 334.

The party moving for summary judgment has the burden to show that there is no genuine issue as to material facts. Wolff v. Light, Supra; Titus v. Titus, Supra.

A review of the complaint discloses that the plaintiffs allege that the defendant Boehm, wrongfully and without authority of the defendant Morton County, commenced the construction of the road in question across the plaintiffs' land. The answer of the defendant Boehm alleges that the road in question was constructed under and pursuant to the authority of the defendant Morton County, and that the said county authorized him to construct a road. The answer of the defendant Morton County denies that the defendant Boehm improved the section line by the construction of the road pursuant to authority granted by it, but alleges that if it is found that such authority was granted, the improvement is properly a gift to the public which the defendant county is authorized by statute to receive. An examination of the evidence submitted to the trial court discloses that the issue arising from the pleadings as to this question is not settled. Was the question of fact material to the decision? We find, for reasons hereinafter stated in this opinion, that the question of fact, i.e., whether the defendant Morton County autho...