924 N.W.2d 393
N.D.2019Background
- Fox Island subdivision (1994) recorded plat dedicated streets and utility easements "to the public use forever," and Burleigh County accepted the dedication.
- Repeated Missouri River flooding led the Burleigh County Water Resource District to plan a levee and roadway grade raises (1–2 feet) tying into a larger Bismarck project; ~80% of affected owners voted for a special assessment district.
- In Feb 2018 Burleigh County (on behalf of unorganized Lincoln Township) granted an easement to the District to construct and maintain an earthen levee including roadway grade raises.
- Several abutting landowners sued in Mar 2018 seeking to enjoin the project, asserting the 1994 dedication conveyed only travel easements (fee to property mid-street remained with abutters), the County exceeded authority, and alleging inverse condemnation.
- The district court granted summary judgment for defendants, denied a preliminary injunction, dismissed inverse condemnation as premature, and taxed costs against plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs had to exhaust administrative remedies before seeking injunctive relief | Plaintiffs need not pursue administrative appeal; they challenged legality | Defendants: plaintiffs should have exhausted remedies by appealing District decision | Court: No exhaustion required because plaintiffs challenge legality of easement, not wisdom of agency action |
| Whether raising street grade for flood control is within scope of 1994 dedication | Raising roads for flood control exceeds primary "travel" purpose; dedication limited to travel/transportation | Raising grade is consistent with street dedication; secondary uses related to public purpose permitted | Court: Raising grade is consistent with primary street purpose; easement use valid |
| Whether the 1994 dedication was statutory or common-law | Plaintiffs: County failed to prove statutory formalities under ch. 40‑50.1 | Defendants: Recorded plat and county acceptance satisfy statutory dedication; public filing presumed regular | Court: Dedication is statutory (presumption of regularity applies); county assumed township role for statutory purposes |
| Whether dedication conveyed fee simple to public or only easement leaving fee to abutters | Plaintiffs: Dedication created only an easement; abutters retain fee to middle of street (relying on Wilkie) | Defendants: Statutory dedication conveys fee to public; no reversion occurred | Court: Fee title is in the public under statutory dedication; Wilkie distinguishable |
| Whether County/Township breached trustee duties by granting easement for District project | Plaintiffs: Easement inconsistent with trustee duties and dedication purpose | Defendants: Grant consistent with dedication and municipal-like powers to alter streets | Court: No breach; grant consistent with dedication, so injunction denied for lack of likelihood of success |
| Whether inverse condemnation claim ripe | Plaintiffs: Taking occurred when easement granted/road raised | Defendants: No compensable taking because public fee holds and any taking accrues when property is actually taken | Court: Inverse condemnation premature; right to compensation accrues when property is taken |
| Whether costs award required findings on expert fees | Plaintiffs: Court failed to make findings on reasonableness of expert witness fees | Defendants: Plaintiffs failed to timely object under Rule 54, so costs stand | Court: Plaintiffs did not timely object; appellate review of taxed costs precluded; no findings required |
Key Cases Cited
- Donovan v. Allert, 11 N.D. 289 91 N.W. 441 (N.D. 1902) (primary use of streets is travel; secondary uses must be consistent)
- Kenner v. City of Minot, 98 N.W.2d 901 (N.D. 1959) (dedication implies authority to fix street grade and improve streets)
- City of Fargo v. Fahrlander, 199 N.W.2d 30 (N.D. 1972) (uses inconsistent with street dedication can invalidate proposed use)
- Yegen v. City of Bismarck, 291 N.W.2d 422 (N.D. 1980) (additional street regulations held consistent with dedication)
- Ceynar v. Tesoro Logistics LP, 894 N.W.2d 374 (N.D. 2017) (application of dedication consistency test)
- Winnie Dev. LLLP v. Reveling, 907 N.W.2d 413 (N.D. 2018) (distinguishing statutory vs common-law dedication; statutory dedication conveys fee)
- State v. Wilkie, 895 N.W.2d 742 (N.D. 2017) (plat interpreted as creating easement; university retained ownership—distinguished here)
- Hager v. City of Devils Lake, 773 N.W.2d 420 (N.D. 2009) (right to compensation accrues when property is taken)
- Med. Arts Clinic v. Franciscan Initiatives, Inc., 531 N.W.2d 289 (N.D. 1995) (exhaustion of administrative remedies required generally for judicial review)
- Opp v. Source One Mgmt., Inc., 591 N.W.2d 101 (N.D. 1999) (failure to timely object to taxed costs precludes appellate review)