949 N.W.2d 853
N.D.2020Background
- G&D and Liebelt own adjacent lots in Beulah; before either purchased, the parcels were one lot and a private water line was installed across what became G&D’s property to serve Liebelt’s house. The line was unrecorded and its location unknown to both until G&D punctured it while digging in 2015.
- No express easement for the water line appears of record.
- G&D sued in November 2017 alleging private nuisance and civil trespass, seeking damages and injunctive relief; Liebelt moved for summary judgment.
- The district court granted summary judgment for Liebelt, concluding G&D failed to show an "actual danger" and that Liebelt lacked intent to trespass. Judgment dismissed G&D’s claims with prejudice.
- The North Dakota Supreme Court reversed and remanded, holding the district court misapplied law, genuine issues of material fact exist on nuisance and trespass, and the court erred in denying injunctive relief under the wrong standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether water line use constitutes a private nuisance | Water line’s unknown location and puncture caused water intrusion and interferes with G&D’s use, satisfying N.D.C.C. § 42-01-01 | No unlawful act or omission by Liebelt; no interference shown; district court relied on need to show "actual danger" | Reversed: district court misapplied Hale; testimony raised genuine factual disputes on nuisance so summary judgment improper |
| Whether continued use of preexisting water line is civil trespass | Each voluntary use after discovery is an intentional invasion; no implied easement established | No intent to trespass; line placed by predecessor when lots were joined; continuing-trespass theory inapplicable if initial placement not tortious | Reversed: issues of fact exist about intent, implied easement, and continued use; summary judgment improper |
| Whether permanent injunctive relief was properly denied | Complaint sought permanent injunction; if nuisance or trespass proved, injunction or self-help abatement appropriate | Injunction not warranted; plaintiff failed to show irreparable/immediate harm; district court applied preliminary-injunction standard | Reversed: district court applied wrong standard; injunction may be appropriate if liability proven; remand for further proceedings |
| Proper standard for granting summary judgment | Summary judgment inappropriate where factual disputes and inferences required | Court may grant summary judgment if no genuine material fact exists; district court found no competent evidence | Affirmed principle: summary judgment reviewed de novo; here court erred because genuine issues of material fact exist |
Key Cases Cited
- Ceynar v. Barth, 2017 ND 286, 904 N.W.2d 469 (summary judgment standards and view of evidence in light most favorable to nonmoving party)
- Hale v. Ward County, 2012 ND 144, 818 N.W.2d 697 (addressing evidentiary sufficiency for nuisance claims; distinguished by court)
- Rassier v. Houim, 488 N.W.2d 635 (discussing duty not to unreasonably interfere with others’ property use in nuisance context)
- Tibert v. Slominski, 2005 ND 34, 692 N.W.2d 133 (elements of civil trespass and authority for trespass tort at common law)
- Gray v. Berg, 2016 ND 82, 878 N.W.2d 79 (trespass liability despite lack of actual harm; intent requirement)
- Roll v. Keller, 336 N.W.2d 648 (easement by implication can be created under certain facts)