*1 Judge 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 compelled 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 considering 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 estates 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, etc., 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 Defendants 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 Manufacturing 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 to 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 .. . adjoin “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 to 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 conclusion 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, 147 N.W.2d 407 highway by prescrip- for satisfactory evidence. by proving period the the ^[*] and adverse forth the funda 88 N.W.2d 98 establishment equal to that general, con- the same ^[*] under a (N.D. ^[*] use by question has been termination that at all times mony Neil Renschler testified can remember” the area since 1924 and that with a Backhaus’ claim the fenced. County, aware of 1932 and that in since gate Backhaus asserts Fred support of testified that he the located 1928. Heer, road the the However, across the road or adversely in the property a resident of Emmons property was fenced property has been question that he has lived in district court’s de there is testi first became “ever used “has pertinent in 1930 or by the since always path. Ketchum, been fenced.” Herbert public as a by

“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 to 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 continued, 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 adverse 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 across 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 blade 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.” 88 N.W.2d at 102. fact, Weber, past, “A. It has

“Q. yes.” matter Mr. been done in the As a were 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 was “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.” there 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 open 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 accordingly, 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 Renschler’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 to “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. The 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 evidence 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 fact 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, Struehynski 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