STATE of North Dakota, Plaintiff and Appellee, v. Gary MEYER, Defendant and Appellant.
No. 1036.
Supreme Court of North Dakota.
Jan. 16, 1985.
As Amended Jan. 23, 1985.
361 N.W.2d 221
VANDE WALLE, Justice.
Mike L. Halpern, Glen Ullin, for defendant and appellant.
VANDE WALLE, Justice.
In a criminal action tried to the Grant County court without a jury, Gаry Meyer was found guilty of obstructing a public road in violation of
On this appeal, Meyer divides his argument into seven “issues“:
“I. Can the crossing over the Defendant‘s land be considered a road or highway?
“II. Does the County Judgе have the authority to declare an alleged highway a public road or public highway?
“III. Does the decision of the County Court result in a taking of property without just compensation?
“IV. Did the Court err in determining that the use of the alleged road by the complaining witness was not permissive?
“V. Did the Court err in determining that the alleged road was in use for twenty (20) years in a nonpermissive manner?
“VI. Was the evidence such that it could be called clear and convincing so as to find a public road?
“VII. May the Defendant be convicted of the crime of obstructing a public road on March 14, 1984, when the alleged road wasn‘t declared publiс until May 24, 1984, the date of the conviction?”
Because we consider some, but not all, of the issues dispositive of the appeal before us, we will discuss only those issues which are necessary to our disposition of the matter.
We are unable to discern from the record whether the trial court determined that the violation occurred because Meyer obstructed a portion of a section line or whether the trial court determined that a road across part of Meyer‘s property—which road was alleged to be a public road acquired by prescription—was a public road which Mey
It appears from the record before us, however, that the issue before the trial court was whether or not the road in question was a public road by virtue of
We are concerned with the procedure employed in this instance, whereby a defendant is chargеd with the crime of obstructing a public road and at the criminal trial the primary, and most probably the only, issue is whether or not the road is a public road by virtue of
However, where, as here, there is a legitimate dispute as to whether or not the necessary requirements have been met to make the road in question a road by prescription as specified in
The State argues that leaving the issue of whether or not the road in question is a public road by prescription to the trier of fact in a criminal action is no different from leaving to the trier of fact the issue of whether or not a structure is a “building” within the meaning of a burglary statute. See State v. Walker, 319 N.W.2d 414 (Minn.1982). In view of the requirements necessary to establish a public road by prescription [see Berger v. Berger, supra], we believe the differences between the two situations are obvious.
The State also argues that the person complaining of the obstruction of the road should not have to endure the expense of instituting a civil action to have a court declare the road a public road by prescription. We do not believe this argument justifies a criminal action rather than a civil action. If the State‘s Attorney deems it appropriate that the State institute an action on behalf of the public who presumably would travel the road, the State may institute a civil action to have the road declаred a public road. Cf. State v. District Court, 19 N.D. 819, 124 N.W. 417 (1910); Myhre, Attorney General of North Dakota, 52 N.D.L.Rev. 349 (1975).
The judgment of conviction is reversed and we remand the case to the trial court with the direction that it enter a judgment of acquittal.
GIERKE, J., concurs.
ERICKSTAD, C.J., concurs in the result.
Justice PAUL M. SAND, who died on December 8, 1984, was a member оf this Court at the time this case was submitted.
PEDERSON, Surrogate Judge, dissenting.
The majority opinion creates serious problems for the future. By judicial legislation, this Court has cast grave doubts on the application of some long-standing and universal rules by which we live and has announced an exception which has parameters that are hazy and, in my opinion, not at all obvious.
Ordinarily, whenever a criminal conviction has been challenged on appeal as being unsupported by the evidence we have applied the familiar rule that:
“A challenge to the sufficiency of the evidence to sustain a conviction requires us to make a comparatively limitative review of the evidence presented at trial. Although the jury is entitled to judge the credibility of witnesses and determine the relative weight to be given their testimony, we are not. Rather, we must loоk only to the evidence which favors the verdict and accept all the reasonable inferences therefrom to see if the trier of fact could reasonably conclude that the essential elements of the crime were established beyond a reasonable doubt.” (Citations omitted.) State v. Demery, 331 N.W.2d 7, 10 (N.D.1983).
See also State v. Ohnstad, 359 N.W.2d 827 (N.D.1985); State v. Thompson, 359 N.W.2d 374 (N.D.1985); State v. Voeller, 356 N.W.2d 115, 117 (N.D.1984).
In 1975, the North Dakota legislative assembly enacted a statute requiring a civil proceeding as a prerequisite to criminal liability. See
I am convinced that the implication of this opinion will have an impact far beyond the little neighborly Hatfield v. McCoy type feuds over remote rural roads where pheasant hunters may occasionally stray uninvited. For the future practice of traffic and criminal law, this decision opens a pandora‘s box.
Each highway, street and road (including alley) is a “public way” and falls within the generic term “public road.” See
“Public road” travellers on I-94, US-83, ND-200, and even Second Street in Bismarck will havе to be warned in the future that the right-of-way ahead may have been acquired by gift, purchase, condemnation or perhaps “prescription.” In that way the traveller will know that if he suddenly encounters an obstruction or a plowed-up roadway, he may proceed by civil action to obtain a declaration that the road is a “public road” after which the appropriate law enforcement agencies may proceed with criminal prosecution.
Meyer‘s conviction should be affirmed.
Surrogate Judge PEDERSON participated in this case by assignment pursuant to