Becker v. Burleigh County , 2019 ND 68 ( 2019 )


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  •                Filed 3/13/19 by Clerk of Supreme Court
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2019 ND 68
    Renee Becker, Rick Bischof, Jacqueline
    Bischof, Dr. Craig Lambrecht, Jewel
    Lambrecht, Dr. Josh Rampton, Dr. Karen
    Rampton, Todd Tescher, and Lindsey
    Tescher, Dr. Attas Boutrous, Tim
    Clausnitzer, Stacey Clausnitzer, Gary
    Hanson, Darlyne Hanson, Howard Malloy,
    Lori Malloy, Tony Masset, Gretchen
    Masset, John Miller, Dr. Brenda Miller,
    Kim Parson, Sharon Parson, John Shaffer,
    Mary Shaffer, James Volk, Catherine
    Volk and Dr. Josh Rampton and Dr.
    Karen Rampton,                                                  Plaintiffs
    and
    Dr. Attas Boutrous, Tim Clausnitzer,
    Stacey Clausnitzer, Gary Hanson, Darlyne
    Hanson, Howard Malloy, Lori Malloy,
    Tony Masset, Gretchen Masset, John
    Miller, Dr. Brenda Miller, Kim Parson,
    Sharon Parson, John Shaffer, Mary Shaffer,
    James Volk, Catherine Volk, Dr. Josh
    Rampton and Dr. Karen Rampton,                   Plaintiffs and Appellants
    v.
    Burleigh County, Lincoln Township, and
    Burleigh County Water Resource District,        Defendants and Appellees
    No. 20180259
    Appeal from the District Court of Burleigh County, South Central Judicial
    District, the Honorable James S. Hill, Judge.
    AFFIRMED.
    Opinion of the Court by Tufte, Justice.
    Sean T. Foss (argued) and Stephen P. Welle (appeared), Fargo, N.D., for
    plaintiffs and appellants.
    Scott K. Porsborg (argued) and Austin T. Lafferty (appeared), Burleigh County
    Special Assistant State’s Attorneys, Bismarck, N.D., for defendants and appellees
    Burleigh County and Lincoln Township.
    David R. Bliss, Bismarck, N.D., for defendant and appellee Burleigh County
    Water Resource District.
    2
    Becker v. Burleigh County
    No. 20180259
    Tufte, Justice.
    [¶1]   Attas Boutrous and other landowners appeal from a judgment dismissing their
    action against Burleigh County, its Water Resource District, and Lincoln Township
    to halt a flood protection project in the Fox Island subdivision in Bismarck, denying
    their request for a preliminary injunction, dismissing their inverse condemnation
    action, and ordering them to pay Burleigh County and Lincoln Township $18,756.75
    in costs and disbursements. Because we conclude the district court correctly applied
    the law and there are no genuine issues of material fact, we affirm the judgment.
    I
    [¶2]   The Fox Island subdivision is located in Lincoln Township (“Township”)
    in Burleigh County (“County”). Because the Township is unincorporated and
    unorganized, it is governed by the Burleigh County Board of County Commissioners
    with respect to roads, highways, and bridges. See N.D.C.C. §§ 24-06-01 and 24-07-
    04(1). On April 5, 1994, the original owners of Fox Island dedicated the streets in the
    subdivision to the “public use forever”:
    [The] owners and proprietors of the property shown on the annexed plat
    have caused that portion described hereon to be surveyed and platted
    as “Fox Island subdivision” to the City of Bismarck, North Dakota and
    do so dedicate streets as shown hereon including all sewer, culverts,
    water and gas distribution lines and other public utility lines, whether
    shown hereon or not, to the public use forever.
    They also dedicate easements to run with the land, for gas,
    electric, telephone and other public utilities or services under those
    certain strips of land designated hereon as “utility easements”.
    On the same day, the Board of County Commissioners “approved the subdivision of
    land on the attached plat . . . [and] accepted the dedication of all streets shown
    1
    thereon.” The plat containing the dedication and County approval was recorded with
    the register of deeds.
    [¶3]   Flood events on the Missouri River in 2009 and 2011 prompted Fox Island
    residents to request the Burleigh County Water Resource District (“District”) to
    devise a flood mitigation project. The District conducted a public input hearing to
    consider several alternatives and eventually chose to build a levee which would be
    partially constructed by raising public roadways within Fox Island by one to two feet.
    The lead engineer and project manager for the District’s proposed flood control
    project explained:
    The plan selected by the BCWRD, with the assistance and input
    from the Fox Island Homeowners Association, included roadway grade
    raises along Gallatin Loop, Gallatin Drive, and Far West Drive, and
    would tie into a larger project that was constructed performed [sic]
    by the City of Bismarck, which included grade raises on Tavis Road,
    Mills Avenue, and Riverwood Drive. Burleigh County and the City of
    Bismarck jointly constructed the flood control gates and pump station
    on the Tavis Road causeway.
    [¶4]   Approximately 80 percent of the affected landowners voted in favor of creating
    a special assessment district for the project. On February 9, 2018, the County, on
    behalf of the Township, granted the District “an easement over, upon and in the land
    hereinafter described for the purpose of constructing and maintaining an earthen flood
    control levee, which includes a roadway grade raise and associated modifications, for
    the purposes of protecting property on Fox Island from the waters of the Missouri
    River.”
    [¶5]   On March 9, 2018, several landowners (“landowners”) whose properties
    abut the subdivision’s streets commenced this action challenging the legality of the
    project. They contended that the original 1994 dedication of the property only
    conveyed an easement to the public for travel rather than for flood control, that the
    landowners own fee simple title in the property to the middle of the street abutting
    their property, and that the County and Township overstepped their authority in
    granting the easement to the District. The landowners also brought a claim for inverse
    2
    condemnation and requested a preliminary injunction to halt the project from
    proceeding. They also moved for a temporary restraining order, which was denied.
    The district court granted summary judgment dismissing all of the landowners’ claims
    and ordered the landowners to pay the County and Township $18,756.75 for their
    costs and disbursements.
    II
    [¶6]   The landowners argue the district court erred in granting summary judgment
    dismissing their claims.
    [¶7]   Our standard of review for summary judgments is well established:
    Summary judgment is a procedural device under N.D.R.Civ.P.
    56(c) for promptly resolving a controversy on the merits without a trial
    if there are no genuine issues of material fact or inferences that can
    reasonably be drawn from undisputed facts, or if the only issues to be
    resolved are questions of law. The party seeking summary judgment
    must demonstrate there are no genuine issues of material fact and the
    case is appropriate for judgment as a matter of law. In deciding whether
    the district court appropriately granted summary judgment, we view the
    evidence in the light most favorable to the opposing party, giving that
    party the benefit of all favorable inferences which can reasonably be
    drawn from the record. A party opposing a motion for summary
    judgment cannot simply rely on the pleadings or on unsupported
    conclusory allegations. Rather, a party opposing a summary judgment
    motion must present competent admissible evidence by affidavit or
    other comparable means that raises an issue of material fact and must,
    if appropriate, draw the court’s attention to relevant evidence in the
    record raising an issue of material fact. When reasonable persons can
    reach only one conclusion from the evidence, a question of fact may
    become a matter of law for the court to decide. A district court’s
    decision on summary judgment is a question of law that we review de
    novo on the record.
    Dahms v. Nodak Mut. Ins. Co., 
    2018 ND 263
    , ¶ 6, 
    920 N.W.2d 293
    (quoting Pettinger
    v. Carroll, 
    2018 ND 140
    , ¶ 7, 
    912 N.W.2d 305
    ).
    A
    3
    [¶8]   The District argues that the district court should have denied the request for a
    preliminary injunction because the landowners failed to exhaust their administrative
    remedies. The District contends the landowners’ remedy was to appeal from its
    decision to construct the flood project rather than to collaterally attack its decision in
    a later civil lawsuit.
    [¶9]   “[T]he doctrine of separation of powers requires those who seek judicial
    review of administrative matters to first exhaust their administrative remedies.” Med.
    Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 
    531 N.W.2d 289
    , 296 (N.D. 1995).
    Generally, injunctive relief cannot be granted against public officials or entities. See
    Black Gold OilField Servs., LLC v. City of Williston, 
    2016 ND 30
    , ¶ 14, 
    875 N.W.2d 515
    . However, injunctive relief may be granted against public entities without
    exhaustion of administrative remedies where the plaintiff challenges the legality and
    validity of a decision rather than the public entity’s wisdom, propriety, or correctness
    in making the decision. See, e.g., 
    id. at ¶¶
    14-17; Braunagel v. City of Devils Lake,
    
    2001 ND 118
    , ¶¶ 10-12, 
    629 N.W.2d 567
    ; Frey v. City of Jamestown, 
    548 N.W.2d 784
    , 787 (N.D. 1996).
    [¶10] Here, the landowners are not challenging the wisdom, propriety, or correctness
    of the District’s plan for constructing the flood control project. Rather, they challenge
    the legality of the easement granted by the County to the District for construction of
    the project. Consequently, the landowners were not required to exhaust their
    administrative remedies by appealing from the District’s decision.
    B
    [¶11] The landowners argue the district court erred in ruling that use of the Fox
    Island streets for flood protection is within the purpose of the 1994 dedication from
    the original landowners.
    [¶12] The landowners rely on this Court’s decision in Donovan v. Allert, 
    11 N.D. 289
    , 
    91 N.W. 441
    (1902), to support their argument that flood protection is not a
    primary use of streets. In that case, the Court held that the erection of telephone poles
    on streets did not fall within the purpose of a dedication of streets for public use
    4
    because the uses of streets were confined to travel and 
    transportation. 11 N.D. at 293
    ,
    91 N.W. at 443. The Court explained:
    The primary use of a street or highway is confined to travel or
    transportation. Whatever the means used, the object to be attained is
    passage over the territory embraced within the limits of the street.
    Whether as a pedestrian, or on a bicycle, [or] in a vehicle drawn by
    horses or other animals, or in a vehicle propelled by electricity, or in a
    car drawn by horses or moved by electricity, the object to be gained is
    moving from place to place. The same idea is expressed by courts and
    text writers, that “motion is the primary idea of the use of the street.”
    
    Id. The landowners
    argue that any use beyond travel and transportation, specifically
    flood control, is not within the purpose of the original dedication.
    [¶13] In concluding “the raising of the road is consistent with the primary use of the
    dedication,” the district court reasoned:
    Here, the Court finds that the streets were unambiguously
    dedicated . . . “to the public use, forever.” The primary use of a street
    or highway is confined to travel or transportation. Donovan v. 
    Allert, 11 N.D. at 443
    . The raising of the streets does not change the primary use
    of the streets. The primary use of the streets remains travel or
    transportation. The secondary use is flood protection. Second or
    subsequent uses that are separate and distinct from the primary use does
    not extinguish the primary use. Therefore, the Court concludes that the
    raising of the road is consistent with the primary use of the dedication:
    public use. Furthermore, the [Court] concludes that the city’s interest
    in the dedicated streets within Fox Island includes the right to use the
    ground underneath for related municipal purposes, which include to
    alter, widen, grade, pave or otherwise improve or regulate the use of
    streets. It cannot be reasonably argued that these municipal purposes
    are not for the benefit of the public.
    [¶14] This Court has interpreted Donovan to mean that the proposed use need only
    be “consistent” with the purpose of the original dedication for street or highway
    purposes. See, e.g., Ceynar v. Tesoro Logistics LP, 
    2017 ND 112
    , ¶¶ 14-16, 
    894 N.W.2d 374
    ; Yegen v. City of Bismarck, 
    291 N.W.2d 422
    , 425-26 (N.D. 1980); City
    of Fargo v. Fahrlander, 
    199 N.W.2d 30
    , 34 (N.D. 1972); Cosgriff v. Tri-State Tel. &
    Tel. Co., 
    15 N.D. 210
    , 214-17, 
    107 N.W. 525
    , 526-27 (1906). Thus, in Fahrlander
    and Cosgriff this Court held construction of a city mall project and of telegraph and
    5
    telephone lines, respectively, were not consistent with the purpose of streets and
    highways for travel or transportation. Conversely, in Ceynar and Yegen we held that
    construction of a highway lane and a prohibition on street parking, respectively, were
    consistent with the purpose of streets and highways.
    [¶15] Section 40-05-01(8), N.D.C.C., gives municipalities the power to “alter, repair,
    clean, widen, vacate, grade, pave, park, or otherwise improve and regulate the use of
    streets.” Although the County is not a municipality, we believe the statute sets forth
    common and necessary attributes of maintaining streets regardless of the entity
    charged with their control. In Kenner v. City of Minot, 
    98 N.W.2d 901
    , 907 (N.D.
    1959), this Court observed:
    When the owner of property within the city limits dedicates a
    portion of his property for street purposes, he consents that the public
    authorities may determine the grade for such street for the convenience
    of the public. He knows, and is presumed to have consented by such
    dedication of a part of his land for street purposes, that hills on such
    street will be leveled and cut down. He further is presumed to have
    consented that valleys and low spots on the street will be filled and
    leveled, which in some instances will result in causing the street to be
    higher or lower than the abutting property. The right to so improve the
    street for public purposes is included in his dedication of a street.
    We agree with the district court that raising the grade of streets is consistent with
    travel or transportation, the primary use of streets.
    [¶16] The landowners emphasize, however, that the purpose of the easement
    granted by the County to the District is for flood control rather than for travel or
    transportation. We do not believe the stated purpose of the easement for flood control
    is relevant under the circumstances. First, in his affidavit the lead engineer of the
    flood control project stated:
    The Fox Island Roadways were elevated such that they were at
    or above the Base Flood Elevation level established by FEMA (circa.
    May 6, 1994 Plan and Profile Drawings), when they were first built and
    paved, which was verified by the design surveys. A new higher based
    flood elevation in this location was established and effective 2014.
    6
    It appears the potential for flooding in Fox Island has always been a concern since the
    original dedication in 1994, and raising the grade of the streets would have been
    necessary based on the higher 2014 flood elevation. The County would have been
    justified in raising the grade of the streets without the 2018 easement to the District.
    The 2018 easement merely tied the roadway grade raise into the entire flood control
    project.
    [¶17] Second, the landowners argue that the purpose of flood control is not within
    the purpose of the original dedication for travel and transportation, and therefore the
    flood control project as it pertains to the streets is somehow invalid. The landowners’
    argument misdirects the inquiry and elevates the purpose of the easement as the
    controlling principle. If we were to accept the landowners’ argument, the problems
    with the city mall project in Fahrlander and the construction of telephone and
    telegraph lines in Cosgriff and Donovan could have been avoided by simply stating
    that their purposes were for travel or transportation. If the additional use proposed to
    be accomplished through the flood control easement is consistent with the dedication
    of streets for travel or transportation, as it is here, it does not matter whether the stated
    purposes of the dedication include flood control.
    [¶18] We conclude the court did not err in ruling that raising the street grade is
    consistent with the scope of the original dedication for street purposes.
    C
    [¶19] The landowners argue the district court erred in concluding as a matter of law
    that the original dedication was a statutory rather than a common law dedication.
    [¶20] In Winnie Dev. LLLP v. Reveling, 
    2018 ND 47
    , ¶ 8, 
    907 N.W.2d 413
    , we
    examined the law regulating dedications in the platting of real property:
    As a general matter:
    Private land may be dedicated to public use in two ways,
    pursuant to statute and under the common law. Two
    distinctions separate the different types of dedication.
    First, the common law dedication operates by way of an
    equitable estoppel, whereas a statutory dedication
    7
    operates by way of grant. Second, a common law
    dedication usually creates a mere easement, whereas in
    a statutory dedication the fee of the property is in the
    public.
    11A Eugene McQuillin, The Law of Municipal Corporations § 33:5 (3d
    ed. Supp. 2017). North Dakota has followed these general principles.
    Dedication arises when a private landowner sets aside land for public
    use. Tibert v. City of Minto, 
    2004 ND 97
    , ¶ 13, 
    679 N.W.2d 440
    (citing
    Brown v. Bd. of Cty. Comm’rs for Pennington Cty., 
    422 N.W.2d 440
    ,
    442 (S.D. 1988)). Dedication may be express or implied, and may be
    established statutorily or by common law. Tibert, [at] ¶ 13 (citing Cole
    v. Minnesota Loan & Trust Co., 
    17 N.D. 409
    , 
    117 N.W. 354
    , 357
    (1908)). “A statutory dedication is ‘in the nature of a grant,’ while a
    common-law dedication ‘rests upon the principles of estoppel in pais.’”
    Tibert, at ¶ 13 (citing Cole, at 357).
    Statutory dedications are those made pursuant to
    the provisions of a statute. However, they are not
    exclusive of the common-law method.
    ....
    In order to make a statutory dedication of land, the
    procedures outlined in the applicable laws must be
    carefully followed, although there is authority to the
    contrary.
    McQuillin, § 33:4 (footnotes omitted) (3d. ed. 2009).
    An imperfect statutory dedication can be considered as a valid common law
    dedication. 
    Id. [¶21] The
    landowners argue that no evidence was presented that the requirements for
    a statutory dedication under N.D.C.C. ch. 40-50.1 were met. The landowners contend
    the County did not establish that the plat was in “black ink, not ballpoint ink” and that
    it was accompanied by “a copy of a title insurance policy or an attorney’s opinion of
    title” as required by N.D.C.C. § 40-50.1-03. Here, the dedication was filed with the
    register of deeds. Relying on N.D.C.C. § 31-11-03(15), (16), and (17), this Court has
    held that publicly filed documents are “presumed regular and correct until shown
    otherwise by evidence.” Matter of Estate of Kjorvestad, 
    375 N.W.2d 160
    , 165 (N.D.
    1985); see also Duchscherer v. Aanerud, 
    216 N.W.2d 279
    , 284 (N.D. 1974) (where
    8
    record did not show whether county auditor mailed notices, the presumption that the
    auditor performed his official duty regularly, being uncontradicted, established that
    the notices were mailed). The landowners do not argue that the plat was in “ballpoint
    ink” or that it was not accompanied by a title insurance policy or an attorney’s title
    opinion. They only argue the County has not proven compliance with these
    requirements. Because the landowners presented no evidence to contradict the
    presumption of regularity, we conclude their argument is without merit.
    [¶22] The landowners argue the dedication did not comply with statutory
    requirements because N.D.C.C. § 40-50.1-05 dictates that the land intended to be used
    for streets “must be held in the corporate name of the jurisdiction in trust for the uses
    and purposes set forth and expressed and intended.” The landowners argue, because
    the Township is unincorporated and has jurisdiction over the streets within Fox
    Island, the dedication cannot be in compliance with N.D.C.C. § 40-50.1-05. This
    argument ignores that although a township has general supervision over roads
    throughout the township, see N.D.C.C. § 24-06-01, that supervision reverts to the
    “board of county commissioners, if the road is in territory not organized into a civil
    township.” N.D.C.C. § 24-07-04(1). By operation of law the County assumes the role
    of the Township for purposes of N.D.C.C. § 40-50.1-05.
    [¶23] The streets were dedicated by way of a plat which was signed and
    acknowledged by the original owners of the land. We conclude the district court did
    not err in ruling as a matter of law that the dedication was statutory.
    D
    [¶24] The landowners argue the district court erred in concluding that the title
    transferred by the dedication was a fee simple interest and extinguished their rights
    in the property to the middle of the streets in Fox Island.
    9
    [¶25] The landowners rely on State v. Wilkie, 
    2017 ND 142
    , 
    895 N.W.2d 742
    , to
    support their argument. That case involved a dispute over the jurisdiction of a
    university police officer to make an arrest on university property that was subject to
    an easement. 
    Id. at ¶¶
    4, 8, 9. After interpreting a plat of the property as “dedicat[ing]
    the streets and alleys as an easement for public use,” this Court concluded the
    easement did not relinquish the university’s property rights of ownership, and the
    university officer therefore had jurisdiction to make the arrest. 
    Id. at ¶¶
    11, 12, 14.
    Here, we have upheld the district court’s ruling that the 1994 dedication was statutory.
    When there is a valid statutory dedication, the public does not receive a mere
    easement, but the fee of the property is in the public. See, e.g., Reveling, 
    2018 ND 47
    ,
    ¶ 8, 
    907 N.W.2d 413
    . Wilkie is distinguishable and does not dictate the result sought
    by the landowners.
    [¶26] Because the easement at issue here is fully consistent with the dedication of the
    streets for public use, and there has been no move to vacate the streets which may
    trigger the statutory reversion of the streets to the abutting landowners, we need not
    address the landowners’ additional argument about whether they retain a contingent
    interest. We conclude the district court did not err in holding that the fee title to the
    property is in the public.
    E
    [¶27] The landowners argue the district court erred in concluding the Township or
    County did not violate duties as trustees by granting an easement to the District to
    construct the flood project. Because the easement was not inconsistent with the
    purpose of the 1994 dedication, the court did not err in rejecting this claim as a matter
    of law. We further conclude that in view of our disposition of the dedication issues,
    the court did not err in denying the landowners’ request for a preliminary injunction
    because there is no “substantial probability of succeeding on the merits.” Eberts v.
    Billings Cty. Bd. of Comm’rs, 
    2005 ND 85
    , ¶ 8, 
    695 N.W.2d 691
    .
    F
    10
    [¶28] The landowners argue the district court erred in ruling their inverse
    condemnation action was premature.
    [¶29] In Hager v. City of Devils Lake, 
    2009 ND 180
    , ¶ 42, 
    773 N.W.2d 420
    , we
    interpreted N.D.C.C. § 32-15-23 to mean that “[t]he right to compensation, and to
    bring an inverse condemnation action to recover such compensation, accrues on the
    date the property is taken.” Because we have rejected the landowners’ claim that the
    County’s easement to the District impaired any remaining interest of the landowners
    after the 1994 dedication, the landowners are unable to establish any taking at this
    time.
    [¶30] We conclude the district court did not err in dismissing the inverse
    condemnation action as premature.
    III
    [¶31] The landowners argue the district court erred in awarding the County and
    Township $18,756.75 for their costs and disbursements because the court made
    no findings on the reasonableness of expert witness fees. This is not an inverse
    condemnation action, and the landowners have not argued the district court lacked
    authority to award costs and disbursements under N.D.R.Civ.P. 54 and N.D.C.C.
    § 28-26-06 to a condemnor. Hager v. City of Devils Lake, 
    2009 ND 180
    , ¶¶ 54-56,
    
    773 N.W.2d 420
    (rejecting argument that district court was precluded from taxation
    of costs for separate claims that happened to involve same property as inverse
    condemnation claim); see also Lenertz v. City of Minot, 
    2019 ND 53
    , ¶¶ 33-34
    (holding N.D.C.C. § 32-15-32 precludes award of costs and disbursements in favor
    of the alleged condemnor in an inverse condemnation action).
    [¶32] Under N.D.R.Civ.P. 54(e)(1), the clerk of court is required to allow costs and
    disbursements and insert them in the judgment. Rule 54(e)(2), N.D.R.Civ.P., provides
    the procedure to follow for objecting to the costs allowed:
    (2) Objections to Costs. Objections must be served and filed with the
    clerk within 14 days after notice of entry of judgment or within a longer
    time fixed by court order within the 14 days. The grounds for
    11
    objections must be specified. If objections are filed, the clerk must
    promptly submit them to the judge who ordered the judgment. The
    court by ex parte order must fix a time for hearing the objections.
    Unless otherwise directed by the court, the parties may waive the right
    to a hearing and submit written argument instead within a time
    specified by the court.
    [¶33] The landowners did not file an objection as required under the rule and
    appealed instead. A party who fails to timely object to the clerk’s taxation of costs
    under N.D.R.Civ.P. 54(e)(2) is precluded from seeking review of those costs on
    appeal. See Opp v. Source One Mgmt., Inc., 
    1999 ND 52
    , ¶ 26, 
    591 N.W.2d 101
    .
    Without a timely objection, the district court was not required to make a finding on
    the reasonableness of expert witness fees.
    IV
    [¶34] It is unnecessary to address other arguments raised because they are
    unnecessary to the decision or are without merit. The district court correctly applied
    the law, and there are no genuine issues of material fact to preclude the granting of
    summary judgment. We therefore affirm the judgment.
    [¶35] Jerod E. Tufte
    Daniel J. Crothers
    Lisa Fair McEvers
    Jon J. Jensen
    Gerald W. VandeWalle, C.J.
    12