Scott Howe holds a measuring tape July 10 to show his fence posts are 21 feet apart, which is outside the 20-foot width of the prescriptive township road. He plans for the posts to be six feet tall when his fencing project is completed.

RUSO – Butte Township and a landowner have been to court once over the status of a prairie trail and may be headed that way again.

The board of Butte Township, in the northeast corner of McLean County, had sued Scott Howe of Minot in August 2021 after Howe plowed up an 810-foot vehicle trail that ran on one side of about 300 acres that he purchased in January 2021. The township claimed damages to a prescriptive road.

Prescriptive roads on private land become established as public rights of way when the public uses the routes continuously for at least 20 years. Landowners typically still pay taxes on the roadway land.

A Burleigh County judge agreed with Butte Township following a court trial in December 2022 and ordered Howe to restore the trail. Howe did so, and then erected six-foot posts for a fence just outside the 20-foot road width agreed upon by Howe and the township post-trial.

Howe said he must fence both sides of the road to avoid having people travel on more than the 20 feet.

“If I don’t fence both sides of the road, then the public gets to adversely possess. If they drive off the road, that’s adverse possession,” he said. “If I don’t protect my property, then they are taking more private property for public use.”

The township board, which declined to comment due to potential future litigation, determined the posts violated the court order and turned the matter over to McLean County State’s Attorney Ladd Erickson.

Howe said the county removed his 54 fence posts last week.

“Instead of protecting everybody’s property rights, they are trying to take away my right to protect my property so the public, the township, can’t adversely possess any more of my property,” Howe said. “The county never did follow the due process for this either. They just sent a notification on Thursday of a Fourth of July weekend and then they tore it down the next week. They didn’t follow any sort of notice requirements.”

Howe said the individuals who removed the posts had to trespass on his land to do so because the posts were outside the 20-foot width of the public roadway.

In a letter to Howe’s attorney, Erickson explained that Howe obstructed the right of way with the fence posts, in violation of the court order stating the right of way was public and must be open for farm equipment to pass as it did before the legal case took place.

“Removing obstructions to right a ways is an official duty of government officials to perform, so government officials are not trespassing. Whether we give a person notice or not that we are going to remove obstructions is case specific,” he wrote. An individual with a past history of obstructing passage, such as locking a gate, might not be notified before the obstruction is removed, but someone without that history would receive a chance to make a correction before the county takes action, he said.

“Essentially, public road obstructions are public nuisances, and legally, nuisances have no value,” he wrote.

Howe, who was re-installing the fence posts this week, argues prescriptive roads have no right-of-way requirement for setbacks. Additionally, he said, no zoning ordinance exists for how far the fence must be outside the 20 feet.

He said the 20-foot roadway is enough for most farm equipment, although a combine header, due to its width, might need to be detached and transported separately. The primary use of the road is by a local farmer who rents a small acreage at the end of the trail.

Prescriptive roads aren’t common in North Dakota, said Lee Brandvold, Ryder, president of the North Dakota Townships Officers Association. Where they exist, the association recommends townships have formal agreements with landowners and have the roads documented and recorded. Without that, hard feelings among neighbors can result, Brandvold said.

Butte Township is engaged in a second lawsuit, filed in February 2022, over a prescriptive road on property of another township landowner. Court records show the judicial officer will consider a motion for summary judgment on Monday. In the meantime, a jury trial is scheduled to begin July 27.

Howe said whether his dispute ends up back in court depends on the state’s attorney.

“It’s really up to Ladd Erickson because he is the county official that has essentially said I’m a criminal for protecting my own property. He told my attorney that he’s investigating me for three criminal offenses. This is really up to him. If he makes it right, we don’t have to go to court. If he doesn’t, there’s government-facilitated trespassing, government-facilitated destruction of property, not following due process, harassment for threatening me,” he said.

Meanwhile, Howe still envisions building a house on his Butte Township property and raising chickens, goats and cows. It just won’t be on the spot he initially picked out near the tree grove, where the rustic prairie trail runs.