Burlington Northern v. Fail

20070212 Burlington Northern Railroad Company, Plaintiff and Appellee
v.
James S. Fail and Fail Antique Auto, Inc.,
d/b/a Fail Antique and Customizing, Defendants and Appellants

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Sonja Clapp
Nature of Action: Real Property
Counsel:
Appellant: Olson, Juntunen & Sandberg, Ltd.
Appellee: Nilles, Plambeck, Selbo & Harrie, Ltd.
Term: 02/2008   Argument: 02/14/2008  1:30pm
ND cite: 2008 ND 114
NW cite: 751 N.W.2d 188

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
Whether the trial court's findings and resulting conclusions of law that the Quitclaim deed dated January 12, 1989 from Burlington Northern Railroad Company, formerly named Burlington Northern Inc., to Glacier Park Company was drafted in a manner to be sufficient under the law to reserve an easement in the grantor were erroneous?

Appellee's Statement of the Issues:
1. Whether the District Court correctly concluded as a matter of law that a railroad easement for spur tracks existing on the premises in question that continue to service a potato warehouse located to the north of those premises was reserved in a Quit Claim Deed.
2. Whether actual notice of the existence of the spur tracks and/or actual notice of a partial summary judgment confirming the existence of a railroad easement for those spur tracks at the time the premises in question were acquired precludes any challenge to the reservation of the railroad easement in the Quit Claim Deed.

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Docket entries:
107/26/2007 NOTICE OF APPEAL: 07/24/2007
207/26/2007 ORDER FOR TRANSCRIPT: 07/24/2007
307/26/2007 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
408/20/2007 RETENTION OF RECORD ON APPEAL: 09/12/2007
509/14/2007 MOT. EXT/TIME TRANSCRIPT (Nancy Krogstad)
609/14/2007 ACTION BY TRIAL COURT (Hon. Sonja Clapp). Granted: 10/22/2007
710/18/2007 RECORD ON APPEAL (2 vols.), Exhibits, & transcript dated 1-19-93 (Not rec'd: #7--Def's Exh. 1--
810/18/2007 Quitclaim Deed, which was returned to Joel Arnason on 9-17-02; and 47, 66, 90, 91, 92,& 153
910/19/2007 Steno &Shorthand Notes)
1010/19/2007 TRANSCRIPT DATED DECEMBER 13, 2006
1110/22/2007 DISK-tra
1210/22/2007 certificate of service of copies of transcripts
1311/15/2007 MOT. EXT/TIME APPELLANT BRIEF (e-mailed)
1411/15/2007 E-FILED MOTION (MAT)
1511/15/2007 Response to Mot. Ext/Time ATB - no objection (e-mailed)
1611/15/2007 EFILED RESPONSE to Mot. Ext/Time ATB
1711/15/2007 ACTION BY CLERK (MAT). Granted: 12/14/2007
1812/14/2007 APPELLANT APPENDIX (e-filed pdf)
1912/14/2007 E-FILED APPENDIX
2012/14/2007 APPELLANT BRIEF (pdf)
2112/14/2007 E-FILED BRIEF (ATB - pdf)
2212/14/2007 Received surcharge for ATB (Receipt no. 17950)
2312/21/2007 Received 7 copies of ATB from Central Duplicating
2412/21/2007 Received 6 copies of ATA from Central Duplicating
2501/14/2008 APPELLEE BRIEF (e-filed)
2601/14/2008 E-FILED BRIEF (AEB)
2701/15/2008 Received $25 surcharge for AEB (Receipt #17985)
2801/18/2008 Received 7 copies of AEB from Central Duplicating
2901/23/2008 REPLY BRIEF (e-filed) (PDF)
3001/23/2008 E-FILED BRIEF (RYB) (PDF)
3101/23/2008 SITTING WITH THE COURT: Schmalenberger, Allan L.
3201/30/2008 Received 7 copies of RYB from Central Duplicating
3302/14/2008 APPEARANCES: Patrick W. Fisher; Stephen W. Plambeck, Jason R. Crance
3402/14/2008 ARGUED: Fisher; Plambeck
3502/14/2008 ORAL ARGUMENT WEBCAST
3606/09/2008 DISPOSITION: AFFIRMED
3706/09/2008 UNANIMOUS OPINION: VandeWalle, Gerald W.
3806/09/2008 Costs on appeal taxed in favor of Appellee
3906/06/2008 Judgment e-mailed to Parties
4007/01/2008 MANDATE
4107/10/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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