Minto Grain v. Tibert

20030297 Minto Grain, LLC, a
North Dakota Limited
Liability Company, Plaintiff and Appellee
v.
Melvin Tibert and
Cathy Tibert, Defendants and Appellants

Appeal from: District Court, Northeast Judicial District, Walsh County
Judge M. Richard Geiger
Nature of Action: Real Property
Counsel:
Appellant: David C. Thompson, P.C.
Appellee: Zenas Baer Law Office
Term: 03/2004   Argument: 03/03/2004  1:30pm
ND cite: 2004 ND 107
NW cite: 681 N.W.2d 70

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Issues: Appellant's Statement of the Issues:
A. The decision of the North Dakota Supreme Court in Nowling v. BNSF Railway, et. al., determined conclusively that the railroad right-of-way, including the real property claimed by plaintiff Minto Grain, LLC, by virtue of a January 22, 2001, quit claim deed transaction with BNSF Railway, was a public highway, granted such status by Article XII, Section 13, of the North Dakota Constitution, and this public highway has never been discontinued, under the mandatory provisions of N.D.C.C.  24-07-05, et. seq.
B. Plaintiff/appellee Minto Grain, LLC was not entitled to prevail in the instant eviction action against defendants/appellants Melvin and Cathy Tibert, because the roadway known as "Kilowatt Drive" possesses the factual/legal status as a Minto city street, by virtue of the operation of the doctrine of implied dedication.
C. Plaintiff/appellee Minto Grain, LLC, although claiming title by virtue of a quit claim deed transaction of January 22, 2001, actually acquired void title as the result of a transaction which was accomplished in violation of N.D.C.C.  49-09-04.2 and 49-09-10.2, and thus Minto Grain, LLC was not entitled to a judgment of eviction in its favor as against defendants/appellants Melvin and Cathy Tibert.
D. The North Dakota Supreme Court should take this opportunity to clarify, or modify, its holding in Nowling v. BNSF Railway, 2002 ND 104, where the land from which plaintiff/appellee Minto Grain, LLC seeks to evict the defendants/appellants was never used by BNSF Railway, or by any of its predecessors, for railroad purposes, let alone as railroad right-of-way, such that landowners such as the defendants/appellants may be permitted to establish, as a matter of fact, their entitlement to the doctrines of adverse possession and acquiescence, relative to such never-used-for-railroad-purposes land.

Appellee's Statement of the Issues:
1. Did the District Court clearly err when finding that the Tiberts had no property rights in property admittedly owned by Minto Grain, and therefore, not entitled to possession of any of the "bundle of sticks" owned by Minto Grain?
2. Are Tiberts' arguments regarding eviction so devoid of merit that they should have been aware of the impossibility of success on appeal with most of the issues having been raised and argued in other cases and in prior litigation to make the appeal frivolous and making the Tiberts liable to Minto Grain, LLC for costs and expenses pursuant to N.D.R.App.P. Rule 38?

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Docket entries:
110/15/2003 NOTICE OF APPEAL: 10/14/2003
211/10/2003 RECORD ON APPEAL (& separate video tape & one volume of correspondence)
311/24/2003 MOT. EXT/TIME APPELLANT BRIEF
411/24/2003 E-FILED MOTION (via facsimile)
511/24/2003 ACTION BY CLERK. Granted: 12/19/2003
612/15/2003 Substitution of Counsel (Zenas Baer replaced Steven Ekman as counsel for Minto Grain)
712/19/2003 Supplemental Clerk's Certificate dated 12/17/03 (Entry Nos. 73-75)(Not rec'd: #73--Notice of
812/19/2003 Receipt of Appeal from Supreme Court)
912/19/2003 APPELLANT BRIEF
1012/19/2003 E-FILED BRIEF
1112/19/2003 APPELLANT APPENDIX
1212/23/2003 Surcharge payment of $25 received from David Thompson (receipt 15301)
1312/23/2003 Affidavit of Service by Electronic Mail of Appellant's Brief
1412/23/2003 Affidavit of Service by mail of the Appendix
1501/05/2004 MOT. EXT/TIME APPELLEE BRIEF & Affid/Support
1601/05/2004 ACTION BY CLERK. Granted: 02/06/2004
1702/05/2004 APPELLEE BRIEF
1802/09/2004 Corrected Table of Authorities and pages for ATB and certificate of Service
1902/09/2004 DISK - AEB
2002/18/2004 REPLY BRIEF of Appellants (e-filed)
2102/18/2004 E-FILED BRIEF (RYB)
2203/03/2004 APPEARANCES: David C. Thompson, Cathy Tibert and Melvin Tibert; Zenas Baer
2303/03/2004 ARGUED: Thompson; Baer (Vol. Y; Page 209)
2403/03/2004 ORAL ARGUMENT WEBCAST
2506/03/2004 DISPOSITION: AFFIRMED
2606/03/2004 UNANIMOUS OPINION: Maring, Mary Muehlen
2706/03/2004 Costs on appeal taxed in favor of Appellee
2806/07/2004 Judgment Mailed to Parties
2906/18/2004 2nd Supplemental Clerk's Cert. - Entry Nos. 76-77
3006/23/2004 3rd Supplemental Clerk's Cert. dated 6-22-04 (Entry Nos. 79 & 80)(Not rec'd #78--Receipt from
3106/23/2004 Supreme Court)
3206/25/2004 4th Supplemental Clerk's Certificate dated 6-23-04 (Entry No. 81)
3306/30/2004 MANDATE
3407/02/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3512/10/2010 EXPUNGED - Nonpermanent record items destroyed

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