McKenzie County v. Reichman
2012 ND 20
| N.D. | 2012Background
- McKenzie County sued Reichman in 2006 to establish a prescriptive easement and public road on Flat Top Rock/Flat Rock Road crossing Reichman's land.
- Road runs from State Highway 16 southeast, crosses Reichman’s ranch headquarters, and has historically been maintained by the County.
- County alleged 20 years of open, continuous, and adverse public use beginning in the 1950s.
- Reichman, who acquired the ranch in 2000, claimed ownership/control and that use was permissive, with gates/cattle guards.
- The district court granted a prescriptive easement and declared the road public, but remanded to describe the road; Reichman’s inverse condemnation and other damages claims were dismissed.
- The Supreme Court affirmed the prescriptive road but remanded for a formal road description to meet Keidel v. Rask requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the 20-year prescriptive period measured from when adverse public use began or from initiation of the lawsuit? | Reichman argues the period should start later, with non-adverse, permissive use by landowners; the County’s claim is barred. | McKenzie County contends the 20-year period begins with the inception of adverse use when the burden was placed on the land. | Period begins with adverse public use; prescriptive use runs from that inception. |
| Was there clear and convincing evidence of adverse public use during the prescriptive period? | Reichman asserts gates and landowner controls show permissive use and lack of adversity. | County showed construction/maintenance and ongoing public use adverse to Reichman’s interest. | There is sufficient evidence of continuous, adverse public use for the prescriptive period. |
| What is the scope/description of the prescriptive road (width and boundaries)? | Road limits should reflect only the travelled surface. | Road should be described as it presently exists, including necessary shoulders/ditches. | Remand necessary to describe the prescriptive road, width determined by actual use; refer to Keidel v. Rask standards. |
| Does Reichman have inverse condemnation damages for pre-2000 prescriptive road acquisition? | Reichman should recover damages for the County’s use during prescriptive period. | Once the prescriptive road vested in public, Reichman’s damages claim fails. | Damages barred; road became public before Reichman acquired the land. |
| Was Reichman entitled to fees related to the ex parte TRO? | Claims for damages/fees due to ex parte TRO. | Ex parte TRO procedure upheld under statute when warranted. | Denied; no persuasive authority to support fee claims. |
Key Cases Cited
- Berger v. Berger, 88 N.W.2d 100 (N.D. 1958) (adverse use required; permissive use defeats prescription; gates indicate ownership assertion)
- Home of Economy v. Burlington N. Santa Fe R.R., 736 N.W.2d 780 (N.D. 2007) (prescriptive period begins with adverse public use; facts remanded for determination)
- Fischer v. Berger, 710 N.W.2d 886 (N.D. 2006) (adverse use must be proven; weighing conflicts on appeal)
- Mohr v. Tescher, 313 N.W.2d 737 (N.D. 1981) (adverse use requirement; continuities in use)
- Backhaus v. Renschler, 304 N.W.2d 87 (N.D. 1981) (adverse use and public road prescription principles)
- Nagel v. Emmons Cnty. Water Res. Bd., 474 N.W.2d 46 (N.D. 1991) (prescriptive period relates back to inception of adverse use; flowage easement context)
- Kritzberger v. Traill Cnty., 242 N.W. 913 (N.D. 1932) (public may open road by use; width determined by extent of use; notice by public use)
- Keidel v. Rask, 304 N.W.2d 402 (N.D. 1981) (width of prescriptive road; may include shoulders/ditches; description on remand)
- Keidel v. Rask, 290 N.W.2d 255 (N.D. 1980) (foundational description of prescriptive road boundaries)