Becker v. Burleigh County

Filed 3/13/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 68
Renee Becker, Rick Bischof, Jacqueline
Bischof, Dr. Craig Lambrecht, Jewel
Lambrecht, Dr. Josh Rampton, Dr. Karen
Rampton, Todd Tescher, and Lindsey
Tescher, Dr. Attas Boutrous, Tim
Clausnitzer, Stacey Clausnitzer, Gary
Hanson, Darlyne Hanson, Howard Malloy,
Lori Malloy, Tony Masset, Gretchen
Masset, John Miller, Dr. Brenda Miller,
Kim Parson, Sharon Parson, John Shaffer,
Mary Shaffer, James Volk, Catherine
Volk and Dr. Josh Rampton and Dr.
Karen Rampton, Plaintiffs
and
Dr. Attas Boutrous, Tim Clausnitzer,
Stacey Clausnitzer, Gary Hanson, Darlyne
Hanson, Howard Malloy, Lori Malloy,
Tony Masset, Gretchen Masset, John
Miller, Dr. Brenda Miller, Kim Parson,
Sharon Parson, John Shaffer, Mary Shaffer,
James Volk, Catherine Volk, Dr. Josh
Rampton and Dr. Karen Rampton, Plaintiffs and Appellants
v.
Burleigh County, Lincoln Township, and
Burleigh County Water Resource District, Defendants and Appellees
No. 20180259
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Sean T. Foss (argued) and Stephen P. Welle (appeared), Fargo, N.D., for
plaintiffs and appellants.
Scott K. Porsborg (argued) and Austin T. Lafferty (appeared), Burleigh County
Special Assistant State’s Attorneys, Bismarck, N.D., for defendants and appellees
Burleigh County and Lincoln Township.
David R. Bliss, Bismarck, N.D., for defendant and appellee Burleigh County
Water Resource District.
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Becker v. Burleigh County
No. 20180259
Tufte, Justice.
[¶1] Attas Boutrous and other landowners appeal from a judgment dismissing their
action against Burleigh County, its Water Resource District, and Lincoln Township
to halt a flood protection project in the Fox Island subdivision in Bismarck, denying
their request for a preliminary injunction, dismissing their inverse condemnation
action, and ordering them to pay Burleigh County and Lincoln Township $18,756.75
in costs and disbursements. Because we conclude the district court correctly applied
the law and there are no genuine issues of material fact, we affirm the judgment.
I
[¶2] The Fox Island subdivision is located in Lincoln Township (“Township”)
in Burleigh County (“County”). Because the Township is unincorporated and
unorganized, it is governed by the Burleigh County Board of County Commissioners
with respect to roads, highways, and bridges. See N.D.C.C. §§ 24-06-01 and 24-07-
04(1). On April 5, 1994, the original owners of Fox Island dedicated the streets in the
subdivision to the “public use forever”:
[The] owners and proprietors of the property shown on the annexed plat
have caused that portion described hereon to be surveyed and platted
as “Fox Island subdivision” to the City of Bismarck, North Dakota and
do so dedicate streets as shown hereon including all sewer, culverts,
water and gas distribution lines and other public utility lines, whether
shown hereon or not, to the public use forever.
They also dedicate easements to run with the land, for gas,
electric, telephone and other public utilities or services under those
certain strips of land designated hereon as “utility easements”.
On the same day, the Board of County Commissioners “approved the subdivision of
land on the attached plat . . . [and] accepted the dedication of all streets shown
1
thereon.” The plat containing the dedication and County approval was recorded with
the register of deeds.
[¶3] Flood events on the Missouri River in 2009 and 2011 prompted Fox Island
residents to request the Burleigh County Water Resource District (“District”) to
devise a flood mitigation project. The District conducted a public input hearing to
consider several alternatives and eventually chose to build a levee which would be
partially constructed by raising public roadways within Fox Island by one to two feet.
The lead engineer and project manager for the District’s proposed flood control
project explained:
The plan selected by the BCWRD, with the assistance and input
from the Fox Island Homeowners Association, included roadway grade
raises along Gallatin Loop, Gallatin Drive, and Far West Drive, and
would tie into a larger project that was constructed performed [sic]
by the City of Bismarck, which included grade raises on Tavis Road,
Mills Avenue, and Riverwood Drive. Burleigh County and the City of
Bismarck jointly constructed the flood control gates and pump station
on the Tavis Road causeway.
[¶4] Approximately 80 percent of the affected landowners voted in favor of creating
a special assessment district for the project. On February 9, 2018, the County, on
behalf of the Township, granted the District “an easement over, upon and in the land
hereinafter described for the purpose of constructing and maintaining an earthen flood
control levee, which includes a roadway grade raise and associated modifications, for
the purposes of protecting property on Fox Island from the waters of the Missouri
River.”
[¶5] On March 9, 2018, several landowners (“landowners”) whose properties
abut the subdivision’s streets commenced this action challenging the legality of the
project. They contended that the original 1994 dedication of the property only
conveyed an easement to the public for travel rather than for flood control, that the
landowners own fee simple title in the property to the middle of the street abutting
their property, and that the County and Township overstepped their authority in
granting the easement to the District. The landowners also brought a claim for inverse
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condemnation and requested a preliminary injunction to halt the project from
proceeding. They also moved for a temporary restraining order, which was denied.
The district court granted summary judgment dismissing all of the landowners’ claims
and ordered the landowners to pay the County and Township $18,756.75 for their
costs and disbursements.
II
[¶6] The landowners argue the district court erred in granting summary judgment
dismissing their claims.
[¶7] Our standard of review for summary judgments is well established:
Summary judgment is a procedural device under N.D.R.Civ.P.
56(c) for promptly resolving a controversy on the merits without a trial
if there are no genuine issues of material fact or inferences that can
reasonably be drawn from undisputed facts, or if the only issues to be
resolved are questions of law. The party seeking summary judgment
must demonstrate there are no genuine issues of material fact and the
case is appropriate for judgment as a matter of law. In deciding whether
the district court appropriately granted summary judgment, we view the
evidence in the light most favorable to the opposing party, giving that
party the benefit of all favorable inferences which can reasonably be
drawn from the record. A party opposing a motion for summary
judgment cannot simply rely on the pleadings or on unsupported
conclusory allegations. Rather, a party opposing a summary judgment
motion must present competent admissible evidence by affidavit or
other comparable means that raises an issue of material fact and must,
if appropriate, draw the court’s attention to relevant evidence in the
record raising an issue of material fact. When reasonable persons can
reach only one conclusion from the evidence, a question of fact may
become a matter of law for the court to decide. A district court’s
decision on summary judgment is a question of law that we review de
novo on the record.
Dahms v. Nodak Mut. Ins. Co., 2018 ND 263, ¶ 6, 920 N.W.2d 293 (quoting Pettinger
v. Carroll, 2018 ND 140, ¶ 7, 912 N.W.2d 305).
A
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[¶8] The District argues that the district court should have denied the request for a
preliminary injunction because the landowners failed to exhaust their administrative
remedies. The District contends the landowners’ remedy was to appeal from its
decision to construct the flood project rather than to collaterally attack its decision in
a later civil lawsuit.
[¶9] “[T]he doctrine of separation of powers requires those who seek judicial
review of administrative matters to first exhaust their administrative remedies.” Med.
Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 296 (N.D. 1995).
Generally, injunctive relief cannot be granted against public officials or entities. See
Black Gold OilField Servs., LLC v. City of Williston, 2016 ND 30, ¶ 14, 875 N.W.2d
515. However, injunctive relief may be granted against public entities without
exhaustion of administrative remedies where the plaintiff challenges the legality and
validity of a decision rather than the public entity’s wisdom, propriety, or correctness
in making the decision. See, e.g., id. at ¶¶ 14-17; Braunagel v. City of Devils Lake,
2001 ND 118, ¶¶ 10-12, 629 N.W.2d 567; Frey v. City of Jamestown, 548 N.W.2d
784, 787 (N.D. 1996).
[¶10] Here, the landowners are not challenging the wisdom, propriety, or correctness
of the District’s plan for constructing the flood control project. Rather, they challenge
the legality of the easement granted by the County to the District for construction of
the project. Consequently, the landowners were not required to exhaust their
administrative remedies by appealing from the District’s decision.
B
[¶11] The landowners argue the district court erred in ruling that use of the Fox
Island streets for flood protection is within the purpose of the 1994 dedication from
the original landowners.
[¶12] The landowners rely on this Court’s decision in Donovan v. Allert, 11 N.D.
289, 91 N.W. 441 (1902), to support their argument that flood protection is not a
primary use of streets. In that case, the Court held that the erection of telephone poles
on streets did not fall within the purpose of a dedication of streets for public use
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because the uses of streets were confined to travel and transportation. 11 N.D. at 293,
91 N.W. at 443. The Court explained:
The primary use of a street or highway is confined to travel or
transportation. Whatever the means used, the object to be attained is
passage over the territory embraced within the limits of the street.
Whether as a pedestrian, or on a bicycle, [or] in a vehicle drawn by
horses or other animals, or in a vehicle propelled by electricity, or in a
car drawn by horses or moved by electricity, the object to be gained is
moving from place to place. The same idea is expressed by courts and
text writers, that “motion is the primary idea of the use of the street.”
Id. The landowners argue that any use beyond travel and transportation, specifically
flood control, is not within the purpose of the original dedication.
[¶13] In concluding “the raising of the road is consistent with the primary use of the
dedication,” the district court reasoned:
Here, the Court finds that the streets were unambiguously
dedicated . . . “to the public use, forever.” The primary use of a street
or highway is confined to travel or transportation. Donovan v. Allert, 11
N.D. at 443. The raising of the streets does not change the primary use
of the streets. The primary use of the streets remains travel or
transportation. The secondary use is flood protection. Second or
subsequent uses that are separate and distinct from the primary use does
not extinguish the primary use. Therefore, the Court concludes that the
raising of the road is consistent with the primary use of the dedication:
public use. Furthermore, the [Court] concludes that the city’s interest
in the dedicated streets within Fox Island includes the right to use the
ground underneath for related municipal purposes, which include to
alter, widen, grade, pave or otherwise improve or regulate the use of
streets. It cannot be reasonably argued that these municipal purposes
are not for the benefit of the public.
[¶14] This Court has interpreted Donovan to mean that the proposed use need only
be “consistent” with the purpose of the original dedication for street or highway
purposes. See, e.g., Ceynar v. Tesoro Logistics LP, 2017 ND 112, ¶¶ 14-16, 894
N.W.2d 374; Yegen v. City of Bismarck, 291 N.W.2d 422, 425-26 (N.D. 1980); City
of Fargo v. Fahrlander, 199 N.W.2d 30, 34 (N.D. 1972); Cosgriff v. Tri-State Tel. &
Tel. Co., 15 N.D. 210, 214-17, 107 N.W. 525, 526-27 (1906). Thus, in Fahrlander
and Cosgriff this Court held construction of a city mall project and of telegraph and
5
telephone lines, respectively, were not consistent with the purpose of streets and
highways for travel or transportation. Conversely, in Ceynar and Yegen we held that
construction of a highway lane and a prohibition on street parking, respectively, were
consistent with the purpose of streets and highways.
[¶15] Section 40-05-01(8), N.D.C.C., gives municipalities the power to “alter, repair,
clean, widen, vacate, grade, pave, park, or otherwise improve and regulate the use of
streets.” Although the County is not a municipality, we believe the statute sets forth
common and necessary attributes of maintaining streets regardless of the entity
charged with their control. In Kenner v. City of Minot, 98 N.W.2d 901, 907 (N.D.
1959), this Court observed:
When the owner of property within the city limits dedicates a
portion of his property for street purposes, he consents that the public
authorities may determine the grade for such street for the convenience
of the public. He knows, and is presumed to have consented by such
dedication of a part of his land for street purposes, that hills on such
street will be leveled and cut down. He further is presumed to have
consented that valleys and low spots on the street will be filled and
leveled, which in some instances will result in causing the street to be
higher or lower than the abutting property. The right to so improve the
street for public purposes is included in his dedication of a street.
We agree with the district court that raising the grade of streets is consistent with
travel or transportation, the primary use of streets.
[¶16] The landowners emphasize, however, that the purpose of the easement
granted by the County to the District is for flood control rather than for travel or
transportation. We do not believe the stated purpose of the easement for flood control
is relevant under the circumstances. First, in his affidavit the lead engineer of the
flood control project stated:
The Fox Island Roadways were elevated such that they were at
or above the Base Flood Elevation level established by FEMA (circa.
May 6, 1994 Plan and Profile Drawings), when they were first built and
paved, which was verified by the design surveys. A new higher based
flood elevation in this location was established and effective 2014.
6
It appears the potential for flooding in Fox Island has always been a concern since the
original dedication in 1994, and raising the grade of the streets would have been
necessary based on the higher 2014 flood elevation. The County would have been
justified in raising the grade of the streets without the 2018 easement to the District.
The 2018 easement merely tied the roadway grade raise into the entire flood control
project.
[¶17] Second, the landowners argue that the purpose of flood control is not within
the purpose of the original dedication for travel and transportation, and therefore the
flood control project as it pertains to the streets is somehow invalid. The landowners’
argument misdirects the inquiry and elevates the purpose of the easement as the
controlling principle. If we were to accept the landowners’ argument, the problems
with the city mall project in Fahrlander and the construction of telephone and
telegraph lines in Cosgriff and Donovan could have been avoided by simply stating
that their purposes were for travel or transportation. If the additional use proposed to
be accomplished through the flood control easement is consistent with the dedication
of streets for travel or transportation, as it is here, it does not matter whether the stated
purposes of the dedication include flood control.
[¶18] We conclude the court did not err in ruling that raising the street grade is
consistent with the scope of the original dedication for street purposes.
C
[¶19] The landowners argue the district court erred in concluding as a matter of law
that the original dedication was a statutory rather than a common law dedication.
[¶20] In Winnie Dev. LLLP v. Reveling, 2018 ND 47, ¶ 8, 907 N.W.2d 413, we
examined the law regulating dedications in the platting of real property:
As a general matter:
Private land may be dedicated to public use in two ways,
pursuant to statute and under the common law. Two
distinctions separate the different types of dedication.
First, the common law dedication operates by way of an
equitable estoppel, whereas a statutory dedication
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operates by way of grant. Second, a common law
dedication usually creates a mere easement, whereas in
a statutory dedication the fee of the property is in the
public.
11A Eugene McQuillin, The Law of Municipal Corporations § 33:5 (3d
ed. Supp. 2017). North Dakota has followed these general principles.
Dedication arises when a private landowner sets aside land for public
use. Tibert v. City of Minto, 2004 ND 97, ¶ 13, 679 N.W.2d 440 (citing
Brown v. Bd. of Cty. Comm’rs for Pennington Cty., 422 N.W.2d 440,
442 (S.D. 1988)). Dedication may be express or implied, and may be
established statutorily or by common law. Tibert, [at] ¶ 13 (citing Cole
v. Minnesota Loan & Trust Co., 17 N.D. 409, 117 N.W. 354, 357
(1908)). “A statutory dedication is ‘in the nature of a grant,’ while a
common-law dedication ‘rests upon the principles of estoppel in pais.’”
Tibert, at ¶ 13 (citing Cole, at 357).
Statutory dedications are those made pursuant to
the provisions of a statute. However, they are not
exclusive of the common-law method.
....
In order to make a statutory dedication of land, the
procedures outlined in the applicable laws must be
carefully followed, although there is authority to the
contrary.
McQuillin, § 33:4 (footnotes omitted) (3d. ed. 2009).
An imperfect statutory dedication can be considered as a valid common law
dedication. Id.
[¶21] The landowners argue that no evidence was presented that the requirements for
a statutory dedication under N.D.C.C. ch. 40-50.1 were met. The landowners contend
the County did not establish that the plat was in “black ink, not ballpoint ink” and that
it was accompanied by “a copy of a title insurance policy or an attorney’s opinion of
title” as required by N.D.C.C. § 40-50.1-03. Here, the dedication was filed with the
register of deeds. Relying on N.D.C.C. § 31-11-03(15), (16), and (17), this Court has
held that publicly filed documents are “presumed regular and correct until shown
otherwise by evidence.” Matter of Estate of Kjorvestad, 375 N.W.2d 160, 165 (N.D.
1985); see also Duchscherer v. Aanerud, 216 N.W.2d 279, 284 (N.D. 1974) (where
8
record did not show whether county auditor mailed notices, the presumption that the
auditor performed his official duty regularly, being uncontradicted, established that
the notices were mailed). The landowners do not argue that the plat was in “ballpoint
ink” or that it was not accompanied by a title insurance policy or an attorney’s title
opinion. They only argue the County has not proven compliance with these
requirements. Because the landowners presented no evidence to contradict the
presumption of regularity, we conclude their argument is without merit.
[¶22] The landowners argue the dedication did not comply with statutory
requirements because N.D.C.C. § 40-50.1-05 dictates that the land intended to be used
for streets “must be held in the corporate name of the jurisdiction in trust for the uses
and purposes set forth and expressed and intended.” The landowners argue, because
the Township is unincorporated and has jurisdiction over the streets within Fox
Island, the dedication cannot be in compliance with N.D.C.C. § 40-50.1-05. This
argument ignores that although a township has general supervision over roads
throughout the township, see N.D.C.C. § 24-06-01, that supervision reverts to the
“board of county commissioners, if the road is in territory not organized into a civil
township.” N.D.C.C. § 24-07-04(1). By operation of law the County assumes the role
of the Township for purposes of N.D.C.C. § 40-50.1-05.
[¶23] The streets were dedicated by way of a plat which was signed and
acknowledged by the original owners of the land. We conclude the district court did
not err in ruling as a matter of law that the dedication was statutory.
D
[¶24] The landowners argue the district court erred in concluding that the title
transferred by the dedication was a fee simple interest and extinguished their rights
in the property to the middle of the streets in Fox Island.
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[¶25] The landowners rely on State v. Wilkie, 2017 ND 142, 895 N.W.2d 742, to
support their argument. That case involved a dispute over the jurisdiction of a
university police officer to make an arrest on university property that was subject to
an easement. Id. at ¶¶ 4, 8, 9. After interpreting a plat of the property as “dedicat[ing]
the streets and alleys as an easement for public use,” this Court concluded the
easement did not relinquish the university’s property rights of ownership, and the
university officer therefore had jurisdiction to make the arrest. Id. at ¶¶ 11, 12, 14.
Here, we have upheld the district court’s ruling that the 1994 dedication was statutory.
When there is a valid statutory dedication, the public does not receive a mere
easement, but the fee of the property is in the public. See, e.g., Reveling, 2018 ND 47,
¶ 8, 907 N.W.2d 413. Wilkie is distinguishable and does not dictate the result sought
by the landowners.
[¶26] Because the easement at issue here is fully consistent with the dedication of the
streets for public use, and there has been no move to vacate the streets which may
trigger the statutory reversion of the streets to the abutting landowners, we need not
address the landowners’ additional argument about whether they retain a contingent
interest. We conclude the district court did not err in holding that the fee title to the
property is in the public.
E
[¶27] The landowners argue the district court erred in concluding the Township or
County did not violate duties as trustees by granting an easement to the District to
construct the flood project. Because the easement was not inconsistent with the
purpose of the 1994 dedication, the court did not err in rejecting this claim as a matter
of law. We further conclude that in view of our disposition of the dedication issues,
the court did not err in denying the landowners’ request for a preliminary injunction
because there is no “substantial probability of succeeding on the merits.” Eberts v.
Billings Cty. Bd. of Comm’rs, 2005 ND 85, ¶ 8, 695 N.W.2d 691.
F
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[¶28] The landowners argue the district court erred in ruling their inverse
condemnation action was premature.
[¶29] In Hager v. City of Devils Lake, 2009 ND 180, ¶ 42, 773 N.W.2d 420, we
interpreted N.D.C.C. § 32-15-23 to mean that “[t]he right to compensation, and to
bring an inverse condemnation action to recover such compensation, accrues on the
date the property is taken.” Because we have rejected the landowners’ claim that the
County’s easement to the District impaired any remaining interest of the landowners
after the 1994 dedication, the landowners are unable to establish any taking at this
time.
[¶30] We conclude the district court did not err in dismissing the inverse
condemnation action as premature.
III
[¶31] The landowners argue the district court erred in awarding the County and
Township $18,756.75 for their costs and disbursements because the court made
no findings on the reasonableness of expert witness fees. This is not an inverse
condemnation action, and the landowners have not argued the district court lacked
authority to award costs and disbursements under N.D.R.Civ.P. 54 and N.D.C.C.
§ 28-26-06 to a condemnor. Hager v. City of Devils Lake, 2009 ND 180, ¶¶ 54-56,
773 N.W.2d 420 (rejecting argument that district court was precluded from taxation
of costs for separate claims that happened to involve same property as inverse
condemnation claim); see also Lenertz v. City of Minot, 2019 ND 53, ¶¶ 33-34
(holding N.D.C.C. § 32-15-32 precludes award of costs and disbursements in favor
of the alleged condemnor in an inverse condemnation action).
[¶32] Under N.D.R.Civ.P. 54(e)(1), the clerk of court is required to allow costs and
disbursements and insert them in the judgment. Rule 54(e)(2), N.D.R.Civ.P., provides
the procedure to follow for objecting to the costs allowed:
(2) Objections to Costs. Objections must be served and filed with the
clerk within 14 days after notice of entry of judgment or within a longer
time fixed by court order within the 14 days. The grounds for
11
objections must be specified. If objections are filed, the clerk must
promptly submit them to the judge who ordered the judgment. The
court by ex parte order must fix a time for hearing the objections.
Unless otherwise directed by the court, the parties may waive the right
to a hearing and submit written argument instead within a time
specified by the court.
[¶33] The landowners did not file an objection as required under the rule and
appealed instead. A party who fails to timely object to the clerk’s taxation of costs
under N.D.R.Civ.P. 54(e)(2) is precluded from seeking review of those costs on
appeal. See Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 26, 591 N.W.2d 101.
Without a timely objection, the district court was not required to make a finding on
the reasonableness of expert witness fees.
IV
[¶34] It is unnecessary to address other arguments raised because they are
unnecessary to the decision or are without merit. The district court correctly applied
the law, and there are no genuine issues of material fact to preclude the granting of
summary judgment. We therefore affirm the judgment.
[¶35] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.
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