*1 Judgе of mortal.’ them if one the As Heen wrote in his support to dignity or 22, applied to the memorandum October of eorepresentatives has 1974, “. . . at at 277. there should be some for relief.” courts point litigation, an to ...” Let end probate the agree with compеlled We are to ”it.’ this be it is in best district court court and parties to have both interests of estate Under the of the instant circumstances and have a corepresentatives case have and exist and removed as existed still representative considеring of party personal third serve as after the best interests estate, of appeal the remainder we that this should disposition for of conclude hereby be it is and dismissed. estate. record, and affida briefs From ERICKSTAD, J., SAND, and C. PAUL- we conclude
vits filed with this Court SON, WALLE, and PEDERSON VANDE preju (1) and the еstates have been Parker JJ., concur. Conway’s comply to with diced failure rules; (2) has Conway not appellate failing justifiable for cause demonstrated rules; (3) at Conway, oral
comply with re
argument, had cured the defects not filing appeal, including the of
garding the briefs, еtc., if could determine so BACKHAUS, Plaintiff (briefs and affi appeal was meritorious Appellant, and later); (4) appeal filed davits were substantially merit. Furthermore, if we were to allow this and Delores Ren Neil RENSCHLER litigation continue it would schler, Appellees. extended Dеfendants only prejudice to the estates of result Civ. No. 9892. died Guy Kjorvestad. Guy and Selma of North Dakota. Supreme Court 1974, died in and since that 1973 and Selma completely 3, not time estates have been 1981. April their Allowing this to continue settled. only serve extend the
any would further finally are the estates settled in which dissipate funds the estates
and would of prejudice es- detriment any delay
tates. not further We do believe matter will be benefit estates, note, we
final settlement of the following quotation from approval, supra, Kjorvestad,
Matter Estates at
467, 2: footnote City Wahpeton, supra
“In 330-331, adopted at this court
N.W.2d
following: “ Circuit, Incorpo- in Bros ‘The Fifth Manufaсturing v. W.
rated E. Grace 594, 597-598,
Co., at supra, 320 F.2d Ins.
quotes Story, in Co. Justice Ocean Fields, (C.C. pp. 18 Fed.Cas. “
D.Mass.1841): ‘It is in- an end to policy
terest and make ‘ * * * litigation '“’so suits immortal, be while men are
may not
trict Court County, July of Emmons dated 11, 1980, dismissing Backhaus’ action defendants, against Neil and Delores complaint, Renschler. In his Backhaus sought public to establish that a road had by prescription been obtained over the Ren- 24-07-01, under schler’s Section N.D.C.C., provides: by prescrip- “24-07-01. Public roads highways tion.—All roads and within this state which have been or such, open which shall be and use as during twenty years, successive hereby high- are declared tо be roads or ways and confirmed and established as such whether the same have been laid out, established, opened and lawfully or not.” opinion,
In its memorandum the district court following made the succinct state- quote, part, ment fact which we as an accurate statement of the record in this case:
“This land lies in Emmons near pastureland It Missouri River. pertinent at all times herein has been fenced. On the east side of the fence is a gate. The purpose of the was to keep pasture. cattle within the .. . adjоin “This field does not kind, highway but there was a trail or road that followed section lines gate. Thereafter the trail or road meandered across the defendants’ [The land and led to the river Renschlers’] persons bottoms. Various used this method of access when wished tо hunt or fish in the bottoms. years Some ago there was a farmstead located west Wikenheiser, Linton, Frank J. and Wheel- pasture, person residing and the er, Wolf, McDonald, Bismarck, Peterson & produce, people there sold would use plaintiff appellant; argued by Al- this road to drive to and from the farm- Wolf, Bismarck, bert A. and Frank J. Wik- purpose making stead for the enheiser, such Linton. purchases.” Schmitz, Bismarck, Schlosser & for de- fendants appellees; argued by Orell D. district court determined that Back- Schmitz, Bismarck. haus had failed to establish that use of road was adverse
ERICKSTAD, Chief Justice.
for the prescriptive period rather than a use
only by permission
This is an
plaintiff,
of the landowners. Con-
Backhaus,
judgment
from the
of the Dis-
sequently, the district court concluded
Sprow
Quoting approvingly from
v. Boston
had not been
by prescription
24-07-01,
330, 339,
Co.,
N.D.
A.
163 Mass.
39 N.E.
&
R.
established under Section
Backhaus’ ac-
C.C.,
(1895),
dismissed
and the court
concluded in
Berger,
tion.
supra:
“
to determine
‘If all
which was intro-
for this Court
the evidence
The sole issue
the district
whether or not
*3
equally
is
duced was
consistent
the
cоnclusion that Backhaus
court
in its
erred
view
the uses
on were of the
that
relied
by prescrip-
road
public
to establish a
character,
failed
(permissive use),
the
latter
24-07-01, N.D.C.C.
use under
tive
Section
plaintiff failed to sustain the burden of
him to show a use
proof resting upon
asserting the establish
party
The
right.’
88 N.W.2d at
by pre
public
highway
road or
ment of a
103.
24-07-01, N.D.
scriptive use under Section
clear, convincing,
C.C.,
mental
(N.D.1958),
of a
1966).
Trautman v.
tion,
for
tinuous,
claim of
of the same as such
“To establish a
has the burden
the limitations of real actions.
:
n there must have been
In
requirements
Berger
road
uninterrupted,
right,
this Court set
n {
Ahlert,
or
for a
highway by prescription:
[*]
Berger,
“Mere user of land
the
brother-in-law,
testified that he
of itself to estab- Backhaus’
highway is insufficient
long
or
in 1938 and
highway by prescription
lish a
aware of the road
first became
The
must be adverse and hos-
gate
use.
user
fenced with a
property
the
was
owners;
rights of the
and mere
tile tо the
during the entire time that
across the road
public does not of itself
by
travel
the
testified
Albert Kiemele
he used the road.
property by
use of the
constitute adverse
bought
property
the
parents
that his
long it is
public. Regardless of how
prior during
1930’s and that
question
сontinued,
permission
by
a user
license or
property for a
rented
sought
the land
to be
of the owner of
long
as
as he
He testified that for
while.
with the
easement of
impressed
fenced
property
was
could remember
and affords no basis
travel is not advеrse
has re
across the road
gate
and that
at 100.
prescription.”
years.
over the
in the same location
mained
following
by
statement
this Court in
testimony
contains other
The record also
Berger, supra,
especially
is
relevant in view
court’s determi-
supports
which
the district
the factual circumstances of the instant
do-
landowners exercised
nation that
case:
property
over
minion and control
ob-
placing
“It must
conceded that
be
path was
roadway
this
or
through which
road,
gate,
such as a
is
structions аcross a
path
public use of such
located and that the
strong
by
that the use
others
indication
under a
only rather than
by permission
of a
only, and that erection
permissive
right.
claim of
tends to
gate
gates
across the road
Weber,
for Em-
operator
blаde
Freddy
part
evidence an intention on
regard to the
mons
testified
ownership
owner to assume and assert
previ-
Mr. Kiemele as
control exerted
over
possession
of the land
question:
property
ous owner of
runs.”
“Q. yes.” matter Mr. been done in the As a wеre in you that when isn’t it true that he Albert Kiemele testified farmed doing grading process of now owned Renschlers stopped you? came over and landowner from 1950 until and that on two occa- process. in the Not while I was “A. through he sions locked the which the right after. It was road in passes: “Q. over and talked Mr. Kiemele came “Q. During you 1960’s did ever he? you, didn’t gate? have occasion lock that Yes, he did. “A. “A. Twice. “Q. you what in the world He asked “Q. youWill tell the Court what led doing over in there? you were gate? locking of Yes, he did. “A. I locked it “A. The first time I wаs “Q. he make statements Did *4 my to by ordered lock it dad. That was any- to do it or you you about who told dispute in over some bottom land. The questions? ask those thing? you Did he time it was second I locked when Well, yes. “A. County Commissioner sent the maintainer out, “Q. you get didn’t he? He told to up.” thеre and I locked it Well, “A. he me we could travel told Neil Renschler testified as follows with not blade it. it but his regard to control over the your with “Q. get said to out He question: the road in things? blade Arlis, Baekhaus, “A. son he was Right. “A. fishing gate down time and left the one you “Q. Is that the last time have оpen on We it several occasions. wired there, sir? been down said, ‘Well, just shut and later he I on Yes.” “A. me, you want to was not know it the old said, you get message?’ man’. ‘Did By testimony, his own Albert Baekhaus said, T cattle He didn’t see no around. If blading per- was of the road indicated ” shut, gate okay, I will close it.’ permission of formed with landowner Kiemele: record Upon examining the entire in this “Q. difficulty You never had case, including foregoing testimony, we Mr. Kiemele about that road whatsoever? finding conclude that the district court’s of Well, just Freddie “A. when Weber fact, road use of the was with it, grass he hit inside bladed some permission of the landowners rather than what, gate they and that’s but otherwise right, clearly under a was not of claim (Emphasis always let us blade it.’’ add- we Consequently, erroneous. conclude that ed.) its the district court not err in determi- did failed to meet his nation Baekhaus Lawler, Murray a Commissioner use proving burden an adverse 1972, County from 1959 to also for Emmons by road prior permission testified that was obtained prescriptive period. grading question: Lawler, “Q. you gave per- Mr. when a The Renschlers have made motion be- there, grader to send the down mission fore this strike certain items you a did feel that was which, Baekhaus placed appendix by in the at that time? assert, they place that took relate to events gave thought,
“A. I never it a but I subsequent entry district requested permission Mr. Kiemele’s be- judgment. Having court’s examined in. fore we would send the blade materials, we conclude that questioned raised “Q. are irrelevant to the issues before procedure Is it normal for a Coun- and, Court, have accоrdingly, totally we blades with or ty Commissioner send permission private disregarded reaching roads? materials our these
91 Therefore, anyway. ment If there is unnecessary it is a reversal of the decision. indicated, however, I can judgment motion. foresee the Renschlеr’s rule on questions. serious opinion, judg- with this In accordance requires my One additional matter com- is affirmed. the district court ment of ment. In the succinct statement of fact SAND, and VANDE Justice from the trial quoted PAULSON Chief WALLE, JJ., opinion concur. court’s memorandum reference tо “a trail or road that followed section Justice, PEDERSON, concurring special- gate.” lines It is no means ty- clear to me that Renschler’s fence or a “classic” Rule This should have been right-of- line does not obstruct the section 52(a) tried to the court case. Thе case was way. Burleigh County, In Small controlling jury without a and there was (N.D.1974), N.W.2d we said that use of the fact —was fencing “belated tolerance of on section peri- time road adverse and for a sufficient deprive lines is not effective to NDCC, 24-07-01, applicable? od to make § also, Heiser, rights . . . . See Saetz My starts with the absence concern (N.D.1976). N.W.2d 67 It should be under- finding controlling of fact on this special reversing stood that we are not at this question. fact holdings in or our Small Saetz. prepared The trial court and filed a mem- opinion and “if an orandum *5 filed, it will be
memorandum of decision is findings of fact and conclu-
sufficient if 52(a), appear therein.” Rule
sions of law end- opinion
NDRCivP. The memorandum following paragraph: ed with the CHEHALIS, INC., PECK OF a Wash plaintiff has failed “I conclude that ington Corporation; Peck of Oak Har establish, by clear and convinc- either Inc., bor, Washington Corporation; a ing by preponderance a еvidence Aberdeen, Inc., Washington Peck evidence, Corporation, K. of Aberdeen a/k/a C. being used under claim of for the Ferndale, (Washington); and C. K. required period. Accordingly, I conclude Inc., Corporation, Dakota Plain North by prescription that easement has not Appellees, tiffs and obtained, complaint been and that v. should be dismissed. Counsel for the de- appropriate con- prepare fendant will AMERICA, INC., a C. K. OF WESTERN cluding documents.” Corporation; Dakota John Ol North Askelson, ness; Bernie E. Defend findings No of faсt or conclusions of law Plaintiffs, ants, Third-Party Appel incorporated “appropriate were into the lants, concluding documents.” The conclusion the trial court in the memorandum very comparable to that made the trial Vogel, Jerry Brant O. BRANTNER Decker, Struеhynski court in ner, Knutson, Bye, part Kelly, Weir & (N.D.1972), which we said was inade- Third-Party nership, Defendants recognize futility my ef- quate. Appellants. upgrade findings forts to of fact so that we Civ. No. 9844. can, reservation, give trial court findings presumption of correctness Dakota. Supreme of North 52(a). Rule It is an deserve under 3, 1981. April may never be reached and I ideal waste acknowledge that there will be some judicial effort involved when the result is judg-
presumptively an affirmance of the