State v. Herzig
2012 ND 247
| N.D. | 2012Background
- Daniel Herzig drove his vehicle along a section-line road that diverts onto Karla Herzig’s Section 26 land, near her farmstead in Ward County.
- Karla posted
- no hunting or trespassing
- signs on both sides of the southern approach to the section-line road.
- The State charged Herzig with criminal trespass and criminal mischief for driving on the line and damaging flax planted by Karla.
- Section-line roads in North Dakota are public easements, but the road in question may have become a public road by prescription or remain privately held.
- The district court denied motions to dismiss and to acquit; the case went to a jury which convicted Herzig of criminal trespass.
- Herzig argued the road could be public by prescription under N.D.C.C. § 24-07-01, so the criminal trial was ill-suited; Meyer governs this issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case should have been civil, not criminal, due to a genuine dispute about a prescriptive road | Herzig argues prescription creates a legitimate dispute unsuitable for criminal trial | Herzig contends road status by prescription must be resolved civilly, not criminally | Legitimate dispute requires civil resolution; reversal and acquittal |
| Whether the district court erred in denying judgments of acquittal on sufficiency | State asserts evidence supports trespass if road not public by prescription | Herzig contends sufficient conflict on road status means acquittal is appropriate | District court erred; remand for entry of acquittal |
| Whether a legitimate dispute about prescription should influence charging decisions | State may charge without resolving prescription; dispute later civilly | Criminal procedure should not compel resolution of civil property issues | If legitimate dispute exists, charges should be dismissed or civil action pursued |
Key Cases Cited
- Small v. Burleigh Co., 225 N.W.2d 295 (N.D. 1974) (section lines are public highways unless properly restricted; public travel lawful)
- Meyer v. State, 361 N.W.2d 221 (N.D. 1985) (legitimate dispute over road by prescription; civil action preferred)
- Brakke, 474 N.W.2d 878 (N.D. 1991) (criminal theft of crops case; property questions resolved civilly when dispute exists)
- Perreault, 638 N.W.2d 541 (N.D. 2002) (distinguished civil-dispute doctrine; theft by deception not uniquely civil)