               Filed 1/29/20 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                               2020 ND 26

Aftem Lake Developments, Inc., and
Gerald Lee Aftem, individually,                   Plaintiffs and Appellants
     v.
Riverview Homeowners Association,                  Defendant and Appellee



                               No. 20190221

Appeal from the District Court of Mountrail County, North Central Judicial
District, the Honorable Todd L. Cresap, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Judd M. Jensen (argued) and Troy L. Bentson (on brief), Bozeman, MT, for
plaintiffs and appellants.

Monte L. Rogneby, Bismarck, ND, for defendant and appellee.
  Aftem Lake Developments Inc. v. Riverview Homeowners Assoc.
                        No. 20190221

VandeWalle, Justice.

[¶1] Gerald Aftem and Aftem Lake Developments Inc. (Aftem) appealed a
district court judgment dismissing its lawsuit against the Riverview
Homeowners Association. Aftem argues the court erred in holding it has no
ownership interest in certain subdivision roads. We affirm.

                                      I

[¶2] In 1998, Aftem purchased 10.69 acres of real property in Mountrail
County. Aftem subdivided part of the property into three platted subdivisions;
Arrowhead Point, Bridgeview, and Riverview Estates, collectively referred to
as the Riverview Subdivisions. Each subdivision plat stated the roads and
public rights of way were dedicated to the public.

[¶3] Aftem submitted the plats to the Mountrail County Commissioners for
approval. At the Commissioners’ meeting, the Commission approved the plats
on the condition that the County would not assume maintenance responsibility
for the platted subdivision roads within the subdivisions.

[¶4] Aftem recorded covenants against the property and created the
Riverview Homeowners Association (Riverview HOA) to enforce the
subdivisions’ covenants. In 2015, the Riverview HOA developed and built a
water utility system for the subdivisions. Portions of the water system were
located underneath the platted subdivision roads.

[¶5] Aftem sued the Riverview HOA for trespass and negligence, alleging it
did not have permission to run its water lines underneath the subdivision
roads to which Aftem claimed ownership. Aftem claimed it owned the roads
within the subdivision because, although the County Commission approved the
plats, the County did not maintain the roads. Riverview HOA denied the
allegations, claiming the County Commission’s approval of the subdivision
plats divested Aftem of ownership in the subdivision roads.



                                      1
[¶6] The parties submitted a stipulated statement of undisputed facts and
moved for summary judgment. Aftem argued it owned the subdivision roads
because the County refused maintenance responsibility for the roads.
Riverview HOA asserted Aftem was divested of ownership in the roads when
the plats were approved and recorded. The district court granted Riverview
HOA’s motion and concluded Aftem had no ownership interest in the
subdivision roads. The court entered a judgment dismissing Aftem’s lawsuit.

                                      II

[¶7] Aftem argues the district court erred in granting summary judgment in
Riverview HOA’s favor.

[¶8] The 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.

Johnston Land Co., LLC v. Sorenson, 2019 ND 165, ¶ 6, 930 N.W.2d 90
(quoting Becker v. Burleigh Cty., 2019 ND 68, ¶ 7, 924 N.W.2d 393).

                                      2
                                       III

[¶9] Aftem argues the County’s approval process for the subdivision plats was
imperfect because the County Commission approved the plats on the condition
that it would not maintain the roads within the subdivisions. Aftem contends
it retained ownership of the subdivision roads as a result of the County’s
imperfect approval of the plats.

[¶10] The laying out and platting of subdivisions is governed by N.D.C.C. ch.
40-50.1. A “plat must describe particularly and set forth all the streets” within
the subdivision. N.D.C.C. § 40-50.1-01(1).

[¶11] Under N.D.C.C. § 40-50.1-03, a “plat must contain a written instrument
of dedication, which is signed and acknowledged by the owner of the land.” The
instrument of dedication must contain a full and accurate legal description of
the land. Id. The plat must include a certification from the registered land
surveyor. Id. The dedication and certification must be sworn to before a notary
public. Id. The plat must be approved by the governing body affected by the
plat. Id.

[¶12] After approval of the plat by the governing body, the plat must be
recorded. N.D.C.C. § 40-50.1-04. Under N.D.C.C. § 40-50.1-05, relating to the
conveyance of land noted on a plat:

      When the plat has been made out and certified, acknowledged, and
      recorded as required by sections 40-50.1-01, 40-50.1-03, and 40-
      50.1-04, every donation or grant to the public, or to any individual,
      religious society, corporation, or limited liability company, marked
      or noted as such on the plat or map is a sufficient conveyance to
      vest the fee simple title in the parcel of land as designated on the
      plat. The mark or note made on a plat or map is for all intents and
      purposes a general warranty against the donors, their heirs and
      representatives, to the donees or grantees for the expressed and
      intended uses and purposes named in the plat and for no other use
      or purpose. The land intended to be used for the streets, alleys,
      ways, or other public uses in any jurisdiction or addition thereto
      must be held in the corporate name of the jurisdiction in trust for
      the uses and purposes set forth and expressed and intended.


                                       3
[¶13] Here, the district court concluded Aftem’s three subdivision plats
satisfied the requirements of N.D.C.C. § 40-50.1-05:

            In the present situation each one of the recorded plats
      contains a written instrument of dedication signed and
      acknowledged by the owner. Each plat contains a certification from
      the surveyor as to the accuracy of the plat. Each plat also contains
      the required signatures from the [Mountrail] County Planning
      Commission and the [Mountrail] County Commissioners. Each
      plat was also recorded with the [Mountrail] County Recorder.
      Accordingly, the requirements of N.D.C.C. § 40-50.1-05 have been
      met and the result of those donations or grant to the public which
      were “. . . noted as such on the plat or map. . .” is a sufficient
      conveyance to vest fee simple title in that land to [Mountrail]
      County. As such, [Aftem]’s claim to the platted property ended at
      the point in time each plat was approved and recorded in
      accordance with N.D.C.C. § 40-50.1-05.

            ....

      [A] statutory dedication /conveyance of land was made with respect
      to all three subdivisions in accordance with N.D.C.C. [§] 40-50.1-
      05. Given that a proper statutory dedication of the roads and other
      common areas had been previously given, and that the result of
      that prior conveyance divested [Aftem] of ownership interest in the
      property which is the subject of this dispute, the action initiated
      by [Aftem] is dismissed, with prejudice.

[¶14] Aftem relies on Winnie Dev. LLLP v. Reveling, 2018 ND 47, 907 N.W.2d
413 to support its argument that there was an imperfection in the plat
dedication. In Winnie, at ¶ 10, the dedication in the subdivision plat did not
include a specific parcel of property. We held the failure to include a legal
description or other words describing the parcel “precluded a valid statutory
dedication due to the lack of a legally accurate description.” Id. Thus, fee simple
title to the parcel remained in the original owner and did not vest in the
municipality. Id.

[¶15] Aftem does not dispute that the recorded plats each have clear dedication
language granting the public a perpetual right of way in the subdivision roads.


                                        4
Rather, Aftem asserts the County’s conditional approval of the plats at its
Commission meeting created an imperfection and did not divest Aftem of
ownership in the roads. We disagree.

[¶16] As conceded by Aftem, the Arrowhead Point and Bridgeview subdivision
plats include an “OWNER’S CONSENT AND DEDICATION” stating: “We the
undersigned, Aftem Lake Development, Corporation, being all the owners and
mortgage holders of the lands platted herein, do hereby voluntarily consent to
the execution of said plat, vacation of all existing roads and do dedicate the use
of new roads to the public forever.” The plat for Riverview Estates declares that
Aftem donates and dedicates to the public any “rights of way as hereon shown,
for public use forever.” Each plat also contains a full and accurate legal
description of the property, a surveyor’s certificate, and the signature of the
Mountrail County Commission chairperson approving the plat. See N.D.C.C. §
40-50.1-03. Nothing on the face of the plats indicates the County approved
them on the condition it would not be responsible for maintenance of the roads.
The plats were recorded as required by N.D.C.C. § 40-50.1-04.

[¶17] This case involves ownership of the subdivision roads, and we need not
decide which party is responsible for the maintenance of the roads.1 Aftem’s
subdivision plats satisfied N.D.C.C. §§ 40-50.1-01, 40-50.1-03, and 40-50.1-04.
The plats dedicated the use of the subdivision roads and public rights of way
to the public forever. Thus, under N.D.C.C. § 40-50.1-05, Aftem’s dedication of
the subdivision roads and public rights of way divested Aftem of ownership in
the roads.

[¶18] We conclude the district court did not err in granting Riverview HOA’s
motion for summary judgment.




1   Mountrail County was not a party and did not appear in this action.

                                        5
                                     IV

[¶19] The parties’ remaining arguments are either without merit or not
necessary to our decision. The judgment is affirmed.

[¶20] Gerald W. VandeWalle
      Daniel J. Crothers
      Jerod E. Tufte
      Lee A. Christofferson, S. J.
      Jon J. Jensen, C.J.




[¶21] The Honorable Lee A. Christofferson, S.J., sitting in place of McEvers,
J., disqualified.



                                     6
