924 N.W.2d 426
N.D.2019Background
- In the 1980s the City of Lincoln used a narrow two-tire-track dirt road across private land to access its wastewater site; Lincoln Land Development bought the property in 2005.
- In 2011 the City widened, raised, graded, added ditches and culverts, and graveled the existing track without obtaining express easements or initiating eminent domain proceedings.
- Lincoln Land Development sued (inverse condemnation, trespass, nuisance); many claims were dismissed as time-barred or later narrowed; the district court found a prescriptive easement existed for the pre-2011 road but that the 2011 improvements took additional property.
- A jury fixed compensation for the taking at $8,924.00 plus interest; the district court awarded Lincoln Land Development $122,705.50 in attorney fees and costs under N.D.C.C. § 32-15-32.
- The City appealed, arguing (1) a permanent easement (express, implied, or by estoppel) authorized the 2011 work and (2) the prescriptive easement barred inverse condemnation; it also challenged the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a permanent easement (express, implied, or by estoppel) existed authorizing the 2011 improvements | No written or recorded easement covered the 2011 improvements; documentary evidence does not establish a permanent easement | Historical plats, letters and prior uses show an easement or created expectation permitting the 2011 work | No permanent easement found; district court findings that documents did not create an easement were not clearly erroneous |
| Whether a prescriptive easement in the pre-2011 road prevented recovery for inverse condemnation | Prescriptive easement limited to the pre-2011 road; additional 2011 work exceeded that scope and constituted a taking | The prescriptive easement covered public use so the 2011 improvements were within its scope and not a taking | Prescriptive easement existed for the pre-2011 track, but the 2011 improvements materially changed use/structure and constituted a taking for which compensation is due |
| Whether the 2011 road improvements constituted a taking and how to define its scope | The 2011 project (widening, elevation, ditches, culverts, gravel) used additional land beyond the prescriptive easement and effected a taking | The City’s improvements were continuation/normalization of preexisting access and within the prescriptive easement | The court held the difference between the pre-2011 track and the improved road was a taking; jury determined scope and damages |
| Whether plaintiff was prevailing party and entitled to attorney fees (and whether fees on appeal may be awarded) | Lincoln Land Development was the prevailing party on the inverse condemnation claim and entitled to fees under § 32-15-32; fees on appeal are permissible | City argued it prevailed on many claims and should not be charged fees; other fee statutes apply | District court did not abuse discretion in awarding attorney fees and costs under § 32-15-32; remanded to determine reasonable appellate attorney fees if any |
Key Cases Cited
- Wagner v. Crossland Constr. Co., Inc., 840 N.W.2d 81 (N.D. 2013) (defines creation of easements and standards for implied easements)
- Hager v. City of Devils Lake, 773 N.W.2d 420 (N.D. 2009) (elements of easement by estoppel)
- Brandt v. Somerville, 692 N.W.2d 144 (N.D. 2005) (deference to trial court credibility findings)
- Keidel v. Rask, 304 N.W.2d 402 (N.D. 1981) (scope of prescriptive easement fixed by use creating it)
- City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365 (N.D. 1996) (fee statutes in ch. 32-15 govern eminent domain cost allocation)
- N.D. Dep’t of Transp. v. Rosie Glow, LLC, 911 N.W.2d 334 (N.D. 2018) (treatment of prevailing-party fees in eminent domain contexts)
- Dutchuk v. Bd. of Cnty. Comm’rs, 429 N.W.2d 21 (N.D. Ct. App. 1988) (fees for appellate defense can be awarded under eminent domain fee statute)