author: GILDEA, Justice.

text:
    John Wesley HEBERT, et al., Respondents, v. CITY OF FIFTY LAKES, Appellant.
    No. A06-215.
    Supreme Court of Minnesota.
    Jan. 17, 2008.

      Paul Donald Reuvers, Iverson Reuvers, LLC, for Appellant.
    Scott Marshall Lucas, Thomas B. Olson & Associates, P.A., Edina, MN, for Respondents.
    Susan Lynn Naughton, St. Paul, MN, for League of Minnesota Cities Amicus.
    Thomas H. Boyd, Minneapolis, MN, for Builders Association Minnesota Amicus.
    Jon William Morphew, Schnitker & Associates, P.A., Spring Lake Park, MN, for Eminent Domain Institute Amicus.
   OPINION

GILDEA, Justice.

This case arises from the construction of a gravel roadway that partially intrudes on respondent landowners’ Torrens property. The landowners filed this action in 2005, seeking a declaratory judgment that they owned the property over which the road encroaches and that the City “has no right, title or interest in any portion” of the property. They also sought equitable relief in the form of ejectment and damages for trespass. Appellant City of Fifty Lakes brought a motion to dismiss the complaint for failure to state a claim. The district court dismissed the complaint on the grounds that the City acquired the property by de facto taking when the road was constructed and that the landowners’ claims were time-barred. The court of appeals reversed and remanded in an unpublished decision. Hebert v. City of Fifty Lakes, No. A06-215, 2007 WL 582956 (Minn.App. Feb.27, 2007). Because we hold that the City did not acquire an interest in the property through a de facto taking and that the timeliness of the landowners’ claims cannot be resolved as a matter of law on the pleadings, we affirm.

The following facts are taken from the complaint and documents referenced in the complaint. Respondent landowners own six property lots located along the south side of North Mitchell Lake Road in Fifty Lakes, Minnesota. The lots were registered in 1953, and a 66-foot-wide roadway was dedicated in 1954 when the plat was recorded. The City laid the gravel road at issue in this case in 1971, but the road as built deviated south from the platted and dedicated road and thereby encroached on respondent landowners’ properties. The road invades each property, but the extent of the invasion varies from 29 feet up to 49 feet.

According to the complaint, the gravel road has been open and used by the public since 1971. The landowners demanded that the City remove the road from their property, but the City refused. The complaint does not allege, and the record does not disclose, when this demand was made.

The City moved to dismiss the complaint, contending that the City acquired the land in 1971 when the road was built and that the landowners’ efforts to reacquire the land or sue for damages were barred by the statute of limitations. As indicated above, the district court granted the City’s motion.

The court of appeals reversed and remanded. Hebert, 2007 WL 582956, at *6. The court held that the district court’s determination that the City acquired the property by de facto taking was erroneous because “the degree of interference by the gravel road at the wrong location is not so substantial as * ⅞ * to constitute a taking in the constitutional sense.” Id. at *4. The court also reversed the district court’s decision that the statute of limitations barred the respondents’ claims. Id. at *5. We granted the City’s petition for review.

This case comes to us on review in connection with district court’s decision to grant the City’s motion to dismiss the complaint for failure to state a claim. When reviewing a case dismissed pursuant to Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief can be granted, the question before this court is whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn.1997). Our review is de novo. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn.2003). We are to “consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the non-moving party,” the landowners in this case. Id.

I.

We turn first to the City’s claim that it acquired the property in 1971 through its construction of the road. The City argued to the district court that it acquired the property through de facto taking and by common law dedication. The district court did not reach the dedication question, but ruled that the City had acquired the property by de facto taking. The City does not press common law dedication on appeal, but contends it acquired an interest in the land under the de facto taking doctrine and by statutory dedication. We address each argument in turn.

A. Defacto Taking

A de facto taking is defined as a “taking in which an entity clothed with eminent-domain power substantially interferes with an owner’s use, possession, or enjoyment of property.” Black’s Law Dictionary 1493 (8th ed.2004). The district court concluded that the City “dispossessed the [landowners] of their enjoyment of this portion of their land for 34 years by physically appropriating it with a road used by the public on a regular basis.” The court relied on Brooks Investment Co. v. City of Bloomington, 305 Minn. 305, 232 N.W.2d 911 (1975), to support its conclusion that the City had acquired the land in question.

In Brooks, we recognized that a governmental authority may acquire an interest in property by physical appropriation, even though no formal eminent domain proceeding has been initiated. Id. at 318, 232 N.W.2d at 920. We noted that this type of acquisition does not require an “official intention to acquire any property interest” and characterized such an acquisition as a de facto taking. Id., 232 N.W.2d at 920 (quoting Eyherabide v. United States, 170 Ct.Cl. 598, 345 F.2d 565, 567 (1965)). A de facto taking “creates in the condemnor a protectable legal interest in the property which is equivalent to title by condemnation; the condemnor can be forced to compensate to the original owner of the property, but the owner cannot eject the condemnor nor can he require discontinuance of the public use.” Id. at 319, 232 N.W.2d at 920.

The facts of Brooks, like those alleged in this case, involved a roadway that encroached on private property. Id. at 307, 232 N.W.2d at 913. We said in Brooks that a “substantial interference * * * so as to constitute a taking in the constitutional sense,” occurred when the city built a street encroaching on the property in question. Id., 232 N.W.2d at 920. We held that the city acquired an easement to the extent of the encroachment. Id., 232 N.W.2d at 920. Relying on the rationale of Brooks, the City argued to the district court that it acquired title to the land at issue by de facto taking when it constructed the gravel road in 1971.

The landowners argue that Brooks does not apply to this case because their property is Torrens property. We did not discuss in Brooks whether the property at issue there was Torrens or abstract property. The parties have not brought to our attention, and our own research has not disclosed, any case where we have addressed whether Torrens property can be acquired via de facto taking. We turn to that question now and begin with a discussion of the Torrens system.

Minnesota adopted the Torrens system in 1901 as an alternative to abstract property ownership “to create a title registration procedure intended to simplify conveyancing by eliminating the need to examine extensive abstracts of title by issuance of a single certificate of title free from any and all rights or claims not registered with the registrar of titles.” Hersh Props., LLC v. McDonald’s Corp., 588 N.W.2d 728, 733 (Minn.1999) (internal quotation omitted). Under the Torrens system, title is registered through judicial proceeding. Id. at 734. “[I]n order to maintain the reliability of certificates of title, certain subsequent transfers of title and changes to the certificate must be made either by court order or by approval of the examiner of titles.” Id. (citing Minn.Stat. §§ 508.58, 508.62, 508.68 (1998)).

The Torrens Act does not specifically address whether Torrens property may be acquired via de facto taking. But Minn. Stat. § 508.02 (2006) contains two provisions that inform the analysis of that question. First, the statute provides that registration shall not operate to change “the right to take the land by eminent domain.” Id. The statute thus makes it plain that the government may acquire title to Torrens property pursuant to an exercise of its eminent domain authority.

Second, the statute provides that registration “shall not operate to change or affect any other rights, burdens, liabilities, or obligations created by law and applicable to unregistered land except as otherwise expressly provided herein.” Id. Section 508.02 then contains two express exceptions to this general rule, providing that “[n]o title to registered land in derogation of that of the registered owner shall be acquired by prescription or by adverse possession.” Id.

The language of the Torrens Act, together with the notice principles underlying the Torrens system, leads us to conclude that the City did not acquire the property at issue by de facto taking. We acknowledge that a de facto taking under the analysis in Brooks operates similarly to the government’s acquisition by eminent domain. Brooks, 305 Minn, at 319, 232 N.W.2d at 920 (noting that “the de facto taking creates in the condemnor an interest equivalent to title by condemnation”). But a de facto taking implies the government’s intent to take private property from the circumstances. See id. at 318-19, 232 N.W.2d at 920 (citing Eyherabide, 345 F.2d at 567, and recognizing that within the context of a de facto taking “ ‘a constitutional taking is implied’ ”). Indeed, in this case, the City argued to the district court that when it built the road in 1971 it “informally exercise[ed] its eminent domain powers.”

We have said, however, that “statutes conferring compulsory powers to take private property are to be strictly construed.” Fairchild v. City of St. Paul, 46 Minn. 540, 544, 49 N.W. 325, 326 (1891). A strict construction of the eminent domain authority in section 508.02 points to the conclusion that an intention to take Torrens property should not be implied from the circumstances, but that the government should express its intention to acquire Torrens property through initiation of formal proceedings under the eminent domain provision in Minnesota Statutes chapter 117 (2006).

The City’s interpretation of the eminent domain provision in section 508.02 to include acquisition by de facto taking is also at odds with the notice principles that underlie the Torrens system. The purpose behind the Torrens system was to “simplify conveyancing” by allowing prospective purchasers to rely on the certificate of title as reflecting all interests in the land. Hersh Props., 588 N.W.2d at 733; see also Moore, 282 Minn. at 519, 165 N.W.2d at 217 (“The obvious intent of the Torrens Act is to confer a conclusive title on the holder of a certificate.”). Like the court action for registration of a certifícate of title, the government’s commencement of eminent domain proceedings results in a formal adjudication of rights to the land, with all interested parties receiving notice and an opportunity to be heard. See Minn.Stat. § 117.055 (2006) (describing petition and notice necessary to institute eminent domain proceedings); Barfnecht v. Town Bd. of Hollywood Twp., 304 Minn. 505, 509, 232 N.W.2d 420, 424 (1975) (explaining that “[ejminent domain proceedings * * * provide private landowners with notice, due process of law, and the opportunity to secure just and fair compensation”). In contrast to the government’s initiation of eminent domain proceedings, a de facto taking would operate informally in this case because there was no court action or formal process initiated by the City.

Finally, allowing the City to acquire the land at issue here by de facto taking would operate in the same way as if the City acquired the land by adverse possession in that in both situations, a landowner is deprived of rights to land due to actions of another. See Rogers v. Moore, 603 N.W.2d 650, 657 (Minn.1999) (listing elements of adverse possession). Adverse possession, however, is an exception to the general proposition that Torrens property is subject to the same “burdens, liabilities, or obligations created by law” as unregistered property, because acquisition by adverse possession is specifically disallowed by the Torrens Act. Minn.Stat. § 508.02. We cannot ignore this legislative prohibition. See Minn.Stat. § 645.17(2) (2006) (noting that “the legislature intends the entire statute to be effective”).

For all of these reasons, we hold that the City did not acquire an interest in the land at issue by de facto taking.

B. Statutory Dedication

The City alternatively argues that it acquired the property through statutory dedication, pursuant to Minn.Stat. § 160.05, subd. 1 (2006) (the “user statute”), which provides:

When any road or portion of a road has been used and kept in repair and worked for at least six years continuously as a public highway * * * it shall be deemed dedicated to the public to the width of the actual use ⅜ * *. This subdivision shall apply to roads and streets except platted streets within cities.

The landowners contend that the user statute does not apply because dedication by public use is a form of adverse possession, which is prohibited by the Torrens Act, Minn.Stat. § 508.02, and because the user statute contains an exception for “platted streets within cities.”

The City did not argue to the district court that it acquired the land by operation of the user statute. The record therefore is not developed as to whether the statutory requirements of use and maintenance have been met in this case. See Minn.Stat. § 160.05, subd. 1 (noting that for dedication to apply the “road or portion of a road has [to have] been used and kept in repair and worked for at least six years continuously as a public highway”). Because the City did not press this argument below and the record is not adequately developed on the question of the applicability of the statute, we decline to consider the question of whether the City acquired rights to the land by operation of the user statute. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (“A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.” (internal quotation omitted)).

In sum, we affirm the court of appeals’ conclusion that the City did not acquire the property by de facto taking. We therefore remand the respondents’ claim for declaratory judgment to the district court for further proceedings.

II.

We turn next to the City’s argument that the statute of limitations bars the landowners’ claims for ejectment and trespass.

A. Ejectment

The City asserts that the landowners’ claim for ejectment is time-barred by the 15-year statute of limitations set forth in Minn.Stat. § 541.02 (2006), which provides: “No action for the recovery of real estate or the possession thereof shall be maintained unless it appears that the plaintiff * * ⅜ was seized or possessed of the premises in question within 15 years before the beginning of the action.” Section 541.02 is the adverse possession statute in Minnesota. See Beer v. Minn. Power & Light Co., 400 N.W.2d 732, 736 (Minn.1987). As such, it cannot operate against Torrens property. See Minn.Stat. § 508.02.

As previously discussed, the City acquired no interest by de facto taking or by adverse possession when it built the road. To apply the statute of limitations to Torrens property in the way the City advocates would result in the City being able to accomplish indirectly — acquiring title to the property — what we held above it can not do directly. This would be an absurd result and one that the legislature surely did not intend. See Minn.Stat. § 645.17(1) (2006) (stating that courts may presume that “the legislature does not intend a result that is absurd”).

We affirm the court of appeals decision that the respondents’ ejectment claim is not barred by the limitations period set forth in Minn.Stat. § 541.02, and remand this claim to the district court for further proceedings.

B. Trespass

We turn next to the landowners’ claim for trespass. The City argues that the landowners’ claim is barred by Minn. Stat. § 541.05, subd. 1(3) (2006), which provides that actions for “trespass upon real estate” shall be commenced within six years. The landowners do not dispute that the six-year limitations period governs, but they argue that the trespass is a continuing one, and as such they are permitted to recover damages for the interference with their property rights for the six-year period preceding the filing of this action. We therefore must determine whether the roadway operates as a permanent trespass, which occurred in 1971 when the City laid the gravel road, or a continuing trespass. Unless the roadway operates as a continuing trespass, the limitations period lapsed after 1977 and the landowners are time-barred from seeking damages for trespass.

The test to determine whether the claimed trespass resulting from the construction of the road is permanent or continuing is “whether the whole injury results from the original wrongful act”— the construction of the gravel road in 1971 — “or from the wrongful continuance of the state of facts produced by such act.” Bowers v. Mississippi & Rum River Boom Co., 78 Minn. 398, 402, 81 N.W. 208, 209 (1899) (emphasis added). In explaining the difference between an injury resulting from a permanent trespass and an injury resulting from a continuing trespass, we have stated:

A permanent injury to real property * * ⅝ is one of such a character and existing under such circumstances that it will be presumed to continue indefinitely. A temporary, or continuing injury is one that may be abated or discontinued at any time, either by the act of the wrongdoer, or by the injured party.

Worden v. Bielenberg, 119 Minn. 330, 332, 138 N.W. 314, 315 (1912); see also Beer, 400 N.W.2d at 735 (holding that when “the interference with the property right and the damages occurred simultaneously” the injury is a single one and “not a series of recurring injuries”). If the future injury is preventable but the trespasser fails to take steps to avoid a recurrence, our jurisprudence confirms that the invasion constitutes “separate, recurring acts of trespass.” Heath v. Minneapolis, St. P. & S.S.M.R. Co., 126 Minn. 470, 474-75, 148 N.W. 311, 312 (1914) (concluding that a continuing trespass resulted from an embankment that caused diverted surface water to wash large deposits of sand onto the plaintiffs land).

Consequently, the resolution of the issue here centers on the nature of “the wrong complained of.” Worden, 119 Minn, at 333, 138 N.W. at 315. If the wrong complained of is the act of the City in constructing the gravel road, the trespass is permanent. See, e.g., id. at 332, 138 N.W.2d at 315 (concluding that the act of making excavations in a street constituted a permanent trespass because “the wrong resulted] from the completed act”); Ziebarth v. Nye, 42 Minn. 541, 542, 544, 44 N.W. 1027, 1027-28 (1890) (concluding that there was a single trespass where “[t]he alleged trespass consisted of a single tor-tious act upon the land of the plaintiff’— unlawfully excavating two parallel ditches on the plaintiffs farm and constructing an embankment). On the other hand, if the wrong complained of is some continuing or recurring intrusion onto the landowners’ property, the trespass is continuing. See, e.g., Bowers, 78 Minn, at 403, 81 N.W. at 209-10 (concluding that the acts of the defendant in placing and maintaining piling in a river, which caused water, logs, and ice to drive upon the shore of the landowner’s property, were in the nature of a continuing trespass); Mathews v. St. Paul & Sioux City R.R. Co., 18 Minn. 434, 440-41 (Gil.392, 396-97) (1872) (concluding that the construction and operation of a railroad through the plaintiffs pasture constituted a continuing trespass in a suit involving injury to a cow); Harrington v. St. Paul & Sioux City R.R. Co., 17 Minn. 215, 224-25 (Gil.188, 201) (1871) (concluding that a continuing trespass resulted from the construction of a railroad and the continuous operation of trains over the property of the plaintiffs, which interfered with their use and enjoyment of their premises and rendered access to the street inconvenient and unsafe); see also Field-Escandon v. DeMann, 204 Cal.App.3d 228, 251 CaLRptr. 49, 53 (1988) (concluding that the “salient feature” of a continuing trespass “is that its impact may vary over time.”).

The complaint alleges that “[t]he encroachment of the Roadway off of the Platted Street and onto Plaintiffs’ Property constitutes a continuing trespass, which significantly and detrimentally affects the value of Plaintiffs’ Property.” Through the roadway, the complaint alleges that “Defendant has unlawfully entered, and continues to unlawfully enter, upon Plaintiffs’ Property.” The landowners allege that they “have contacted the Defendant demanding that it remove the Roadway from Plaintiffs Property, but Defendant has refused to do so.” Finally, the landowners seek damages for what they allege to be a continuing trespass.

We are not bound by legal conclusions stated in a complaint when determining whether the complaint survives a motion to dismiss for failure to state a claim. See Anspach v. City of Philadelphia, Dept. of Pub. Health, 503 F.3d 256, 260 (3d Cir.2007) (“[LJegal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” (internal quotation omitted)); see also Bell Atl. Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (explaining that a plaintiffs obligation to provide the grounds of its entitlement to relief “requires more than labels and conclusions”). But the question of whether a trespass is continuing is not always purely a question of law. See Starrh & Starrh Cotton Growers v. Aera Energy LLC, 153 Cal.App.4th 583, 63 Cal.Rptr.3d 165, 175 (2007) (finding that the issue of whether trespass generally is continuing or permanent was a question of fact for the jury).

The landowners rely on Northern States Power Co. v. Franklin, 265 Minn. 391, 122 N.W.2d 26 (1963), to support their claim that the presence of the road on their property constitutes a continuing trespass and that the statute of limitations thus has not run. See also Forsythe v. City of South St. Paul, 177 Minn. 565, 570, 225 N.W. 816, 818 (1929) (“For such continuing injuries it is well established in this state that damages may be recovered within the six-year period.”). Franklin, like this case, came to us in the posture of a motion to dismiss. 265 Minn, at 392, 122 N.W.2d at 28. We concluded that the district court had erred in dismissing the trespass claim on the pleadings. Id. at 398, 122 N.W.2d at 31. Franklin compels the same conclusion here.

In Franklin, Northern States Power Company erected two steel electric transmission line towers in 1952. 265 Minn, at 392-93, 122 N.W.2d at 28. Approximately 10 years after the towers were constructed, the power company brought suit to reform the easement so that it would include the land upon which the company erected the towers and the landowner counterclaimed for trespass. Id. at 393, 122 N.W.2d at 28. The landowner demanded that the towers be removed because they encroached on its land and were not constructed within the scope of an easement granted by the prior owner of the land. Id., 122 N.W.2d at 28. The district court dismissed the trespass counterclaim because the towers were in existence and visible when the landowner bought the land. Id. at 394,122 N.W.2d at 29. On appeal, the power company argued that the landowner could not maintain an action for trespass “because it was not in possession [of the land] when the trespass was complete.” Id. at 397, 122 N.W.2d at 30.

Because of the procedural posture of Franklin, coming to us on a motion to dismiss the trespass counterclaim without a developed “factual foundation,” we held that we could not resolve the issue of continuing trespass. 265 Minn, at 397, 122 N.W.2d at 31. Critical to our conclusion was the landowner’s allegation that it had “alleg[ed] a demand for removal of the structures.” Id. at 397, 122 N.W.2d at 30. With this demand, the landowner “eon-sent[ed] to an entry upon the land” and because of that consent, “the failure to remove the structures, rather than the original entry, characterizes the wrong and supports [a] theory of a continuing trespass.” Id. at 397, 122 N.W.2d at 30. Importantly, we said that “[t]he problem of whether the trespass is continuing, or a single permanent trespass * * * depends on the character of the invasion and the structures erected; and this problem, as well as the problem of the measure of damages to be applied, is essentially one of proof.” Id. at 397, 122 N.W.2d at 31. Accordingly, we remanded the counterclaim to the district court for further proceedings. Id. at 398,122 N.W.2d at 31; cf. Alevizos v. Metro. Airports Comm’n, 298 Minn. 471, 494 n. 6, 499, 216 N.W.2d 651, 666 n. 6, 668 (1974) (reversing dismissal of complaint and noting that overflights and near-flights that constitute a taking may also be considered a continuing tort).

Franklin is dispositive of the limitations issue on the landowners’ trespass claim as it is presented to us. Just as the complaint in Franklin alleged that the landowner made a demand, so does the complaint allege that the landowners made a demand in this case. And the record here, just like the record in Franklin, is not developed as to the “character of the invasion” caused by the road.

Because we cannot make a determination on the record before us — where the factual allegations of the complaint must be accepted as true — whether there is a continuing trespass, we remand the claim to the district court for further proceedings.

Affirmed.

      . The court of appeals concluded that there was not a de facto taking under Brooks because, in contrast to Brooks, the City in this case laid "a mere gravel road” without any " 'valuable improvements.' " Hebert, 2007 WL 582956, at ⅝4 (quoting Brooks, 305 Minn, at 318, 232 N.W.2d at 920). The court also noted that the road had not been made "permanent, by, for example, paving or curbing.” Id. These distinctions are not persuasive. In Broolcs, we did not focus on the value of improvements in finding a de facto taking. We focused instead on the nature of the government activity and found that utilizing a property for a public roadway was a de facto taking. 305 Minn, at 318-20, 232 N.W.2d at 920-21.

      . The Torrens Act "lists seven exceptions that encumber Torrens property in spite of their failure to appear on the last certificate of title.” In re Collier, 726 N.W.2d 799, 802 n. 1 (Minn.2007) (citing Minn.Stat. § 508.25 (2004)). One exception is for public highways. Minn.Stat. § 508.25(4) (2006); see Anderson v. Birkeland, 229 Minn. 77, 86, 38 N.W.2d 215, 221 (1949) ("Section 508.25(4) specifically provides that all rights in public highways upon the land shall remain unimpaired by Torrens registration proceedings.”). The City has not argued that this exception applies. We therefore have no occasion in this opinion to determine the relevance, if any, of this exception to the facts of this case.

      .The two exceptions, acquisition of an interest by prescription and acquisition by adverse possession, have common elements. "The elements necessary to prove adverse possession are well established and require a showing that the property has been used in an actual, open, continuous, exclusive, and hostile manner for 15 years.” Rogers v. Moore, 603 N.W.2d 650, 657 (Minn.1999). A prescriptive easement requires the same elements, but a difference exists “between possessing the land for adverse possession and using the land for a prescriptive easement.” Boldt v. Roth, 618 N.W.2d 393, 396 (Minn.2000) (emphasis added). Whereas adverse possession operates to divest title to the land at issue, "[r]ights of prescriptive easement in land are measured and defined by the use made of the land giving rise to the easement. * * * [A prescriptive easement] is a servitude imposed upon corporeal property, and it gives no title to the land upon which it is imposed.” Romans v. Nadler, 217 Minn. 174, 181, 14 N.W.2d 482, 486-87 (1944).

      . Our holding should not be misinterpreted to preclude owners of Torrens property from seeking compensation under the Takings Clause in either the United States or Minnesota Constitution. U.S. Const, amend. V; Minn. Const, art. I, § 13. This issue is not before us and we express no opinion on it.

      . The City relies on Beer v. Minnesota Power & Light Co., where we recognized that a landowner does not have unlimited time within which to seek compensation for the taking of its land. 400 N.W.2d 732, 736 (Minn.1987). Beer does not resolve the issue in this case because it does not address Torrens property and because, as set forth above, we hold that the City did not acquire the property by de facto taking.

      . The inapplicability of section 541.02 to Torrens property does not however preserve an ejectment action in perpetuity. An action for ejectment seeks equitable relief, and as such may be subject to the equitable defense of laches. See Gully v. Gully, 599 N.W.2d 814, 825 (Minn.1999) ("[I]t is a maxim of equity that he who seeks equity must do equity”) (internal quotation omitted). We have recognized that “a party is barred by laches when the delay is so long and the circumstances of such character as to establish a relinquishment or abandonment of rights.” Corah v. Corah, 246 Minn. 350, 357, 75 N.W.2d 465, 469 (1956). We have also applied the doctrine of laches in circumstances when there is no statute of limitations expressly applicable to the particular claim. See, e.g., Lindquist v. Gibbs, 122 Minn. 205, 208, 142 N.W. 156, 158 (1913) ("There is no statute of limitations that applies to such cases. * * * A party who comes into a court of equity must act with reasonable diligence, under all the circumstances, or he is chargeable with laches.”). Finally, as the City notes, we have applied equitable principles to disputes involving Torrens property. See In re Collier, 726 N.W.2d at 808 (noting "that we have applied principles of equity when a result under the Torrens Act violates notions of justice and good faith.”); Finnegan v. Gunn, 207 Minn. 480, 482, 292 N.W. 22, 23 (1940) ("Nothing in the Torrens system indicates that the ancient concepts of equity are not applicable * * *.”).

      . The City cites our decision in Ziebarth v. Nye, 42 Minn. 541, 44 N.W. 1027 (1890), to support its claim that the statute of limitations for bringing a trespass claim has lapsed. We noted that the trespass in that case "consisted of a single tortious act upon the land of the plaintiff, the result of which will continue without change from any cause but human labor.” Id. at 544, 44 N.W. at 1028. But Ziebarth came to us after a trial, and the record was completely developed as to the character of the trespassing activity. Accordingly, it is not helpful in resolving the nature of the trespass as a matter of law based on the pleadings alone.


source: Caselaw Access Project

author: /s/ Russell A. Anderson Chief Justice

license: Public Domain

text:
    David A. ANDERSON, Respondent v. XCEL ENERGY, Self-Insured/G.E. Young & Company, and Ace USA/G.E. Young & Company, Relators, and Fairview Red Wing Health Services, BlueCross BlueShield of MN, University of MN Physicians, and Red Wing Corner Drug, Intervenors.
    No. A07-2119.
    Supreme Court of Minnesota.
    Feb. 5, 2008.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed October 15, 2007, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (explaining that “[s]ummary affirmances have no prece-dential value because they do not commit the court to any particular point of view,” doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/ Russell A. Anderson Chief Justice


author: SHUMAKER, Judge.

text:
    STAR WINDSHIELD REPAIR, INC., as assignee for Aaron HELGET, Petitioner, Appellant (A07-216) v. WESTERN NATIONAL INSURANCE CO., Respondent (A07-216), and The Glass Network, Claimant (A07-217), Auto Glass Express, as assignee for Kathy Heglos, claimant, Appellant (A07-217), v. Austin Mutual Insurance Company, Respondent (A07-217), and State Farm Mutual Automobile Insurance Company, petitioner, Appellant (A07-830), v. Archer Auto Glass, as Assignee of Ronald Hornberg, Respondent (A07-830).
    Nos. A07-216, A07-217 and A07-830.
    Court of Appeals of Minnesota.
    Feb. 5, 2008.

      Charles J. Lloyd, Livgard & Rabuse, PlL.L.P., Minneapolis, MN, for appellants Star Windshield Repair and Auto Glass Express, and for respondent Archer Auto Glass.
    Eric J. Magnuson, Briggs & Morgan, P.A., Minneapolis, MN; and Mark R. Bradford, Bassford Remele, Minneapolis, MN, for respondent Western National Insurance Co.
    Steven R. Kluz, Mohrman & Kaardal, P.A., Minneapolis, MN, for respondent Austin Mutual Insurance Company.
    Leatha G. Wolter, Jenneane L. Jansen, Meagher & Geer, P.L.L.P., Minneapolis, MN, for appellant State Farm Mutual Automobile Insurance Company.
    Considered and decided by SHUMAKER, Presiding Judge; WORKE, Judge; and MUEHLBERG, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

SHUMAKER, Judge.

Each of these appeals is taken from a district court decision resolving a motion to vacate an arbitrator’s award related to claims for insurance policy proceeds made by auto glass repair companies as purported assignees of the insured policyholders. In two of the cases, the district court vacated the arbitrators’ awards, concluding that anti-assignment language in the insurance policies precluded assignment of post-loss auto-glass claims. In the third case, the district court denied the motion to vacate, concluding that the assignment of a post-loss claim was not precluded by policy language. Because plain language in each of the insurance policies precludes all assignments, we affirm the two orders vacating the arbitrators’ awards and reverse the order denying the motion to vacate.

FACTS

The dispositive issue in each of these companion cases is whether an anti-assignment provision in a motor vehicle insurance policy is enforceable as to post-loss physical damage proceeds so as to preclude a purported assignee from asserting the right to dispute the amount of such proceeds.

Each insurer provided comprehensive insurance, which included coverage for windshield and glass damage. Western National Insurance Co. and Austin Mutual Insurance Company had identical anti-assignment provisions in their policies: “Your rights and duties under this policy may not be assigned without our written consent.” State Farm Mutual Automobile Insurance Company’s anti-assignment provision was expressed differently: “No change of interest in this policy is effective unless we consent in writing.”

In each case, an insured vehicle sustained windshield or glass damage and the insured policyholder contracted with a glass repair company to fix or replace the damaged item. Each repair company's agreement contained an assignment clause by which the insured assigned to the company any claim for insurance proceeds.

The respective repair companies performed glass repair work and directly billed the applicable insurers. Each insurer paid for the repair work but in an amount less than that billed. Asserting rights as assignees under the insurance policies, the repair companies initiated arbitration proceedings. Over the insurers’ objections, arbitrators held hearings and made awards exceeding the sums the insurers had paid to the repair companies.

The insurers respectively moved the district court to vacate the arbitration awards, arguing that the purported assignments were void. In the cases of Star Windshield Repair, Inc. v. W. Nat’l Ins. Co. and Auto Glass Express v. Austin Mut. Ins. Co., the district court agreed with the insurers and vacated the awards. The repair companies appealed. In the matter of State Farm Mut. Auto. Ins. Co. v. Archer Auto Glass, the district court held that the anti-assignment provision did not extend to post-loss proceeds and confirmed the award. The insurer appealed. We consolidated these appeals for decision.

ISSUE

When a policy of comprehensive motor vehicle insurance prohibits the assignment of rights, duties, or interests without the insurer’s consent, does the prohibition validly extend even to the assignment of post-loss insurance proceeds?

ANALYSIS

It is undisputed that the arbitra-tions in these consolidated cases are governed by the Minnesota No-Fault Automobile Insurance Act. Minn.Stat. §§ 65B.41-.71 (2006). No-Fault arbitrators are “limited to deciding questions of fact, leaving the interpretation of law to the courts.” Gilder v. Auto-Owners Ins. Co., 659 N.W.2d 804, 806 (Minn.App.2003) (quoting Weaver v. State Farm Ins. Cos., 609 N.W.2d 878, 881 (Minn.2000)). But no-fault arbitrators are authorized in certain cases to make legal determinations necessary to grant relief. Weaver, 609 N.W.2d at 882. Accordingly, an arbitrator’s determination of a legal issue is subject to de novo review. Klinefelter v. Crum & Forster Ins. Co., 675 N.W.2d 330, 334 (Minn.App.2004).

The interpretation of a provision in an insurance policy is a legal issue. AMCO Ins. Co. v. Ashwood-Ames, 534 N.W.2d 740, 741 (Minn.App.1995), review denied (Minn. Sept. 28, 1995). In each of the consolidated cases, an arbitrator interpreted an anti-assignment clause in an insurance policy to permit the assignment of post-loss insurance proceeds. If an arbitrator errs as a matter of law in making an award, the arbitrator thereby exceeds his power and the award may be vacated. Minn.Stat. § 572.19, subd. 1(3) (2006); Weaver, 609 N.W.2d at 882.

An insurance policy is a contract to which the general rules of contract law apply, unless there are statutory provisions to the contrary. Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917, 926 (Minn.1983). One ubiquitous rule of contract law that applies here is that, if there is no ambiguity in policy terms, the insurance contract is to be given its plain meaning. Bobich v. Oja, 258 Minn. 287, 294, 104 N.W.2d 19, 24 (1960). The glass repair companies do not contend that the anti-assignment clauses are ambiguous, nor do we find them to be so. All the clauses here plainly have broad reach, precluding any transfer of a right or interest under the respective policies. Thus, on the face of each policy, the insured may not assign the right to receive insurance proceeds or the right to litigate a dispute over the amount of proceeds claimed to be due. Despite this plain and broad prohibition, the glass repair companies argue that Minnesota law allows the assignment of post-loss property-insurance proceeds. In addressing this contention, we note at the outset that these cases do not involve liquidated sums that the respective insureds have merely directed their carriers to pay to third parties. Even under the language of these policies, such a directive to pay a fixed sum to another would be permissible. Caselaw has not always made the distinction between assigning liquidated proceeds and unliquidated proceeds. The distinction is significant because the former assignment implicates only the mechanical transfer of money, while the latter assignment carries with it the substantive right to litigate the amount of the insurance benefit the insurer is obligated to pay. In the context of the cases on appeal, the assignee of unliquidated proceeds, here the glass repair companies, would have the right to submit the claim, if it is $10,000 or less, to mandatory and binding No-Fault arbitration. Minn.Stat. § 65B.525 (2006).

The glass repair companies argue that Minnesota precedent permits a post-loss assignment of insurance proceeds despite an anti-assignment clause in the policy, and that the purpose of such a clause is not depreciated by a post-loss assignment.

Addressing the latter argument first, we note that the glass repair companies contend that the purpose of an anti-assignment clause is twofold. First, it prevents an increase in the risk of loss to the insurer without the insurer’s knowledge and consent. Second, it protects the insurer from having to do business with a party it has not chosen to do business with. The companies argue that, because the loss has already occurred, there can be no increase in the risk covered by the policy, and that, by statute, insurers are required to do business with glass repair companies. See Minn.Stat. § 72A.201, subd. 6(14) (2006) (providing statutory guidelines for settlement of window-glass damage claims). Although the glass repair companies are correct in identifying at least two reasons an insurer might include an anti-assignment clause in an insurance policy, when the language of the policy is unambiguous, as it is here, we are not permitted to interpret it, but rather we must give effect to the plain meaning the parties intended. See Thommes v. Milwaukee Ins. Co., 641 N.W.2d 877, 880 (Minn.2002) (“When the language of an insurance contract is unambiguous, it must be given its plain and ordinary meaning.”).

That brings us to the contention that Minnesota precedent permits the type of assignment at issue here. For that proposition, the glass repair companies rely on Windey v. N. Star Farmers Mut. Ins. Co., 231 Minn. 279, 43 N.W.2d 99 (1950); Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792 (Minn.2004); Reitzner v. State Farm Fire & Cas. Co. Inc., 510 N.W.2d 20 (Minn.App.1993), superseded by statute, 1994 Minn. Laws ch. 435, § 1, at 257, as recognized in Border State Bank of Greenbush v. Farmers Home Group, 620 N.W.2d 721, 723 (Minn.App.2000); and In re Estate of Sangren, 504 N.W.2d 786.

Windey involved a real estate purchase agreement that required the vendor’s insurance proceeds from any property loss to be applied against the purchase price. 231 Minn, at 281, 43 N.W.2d at 100. Even though the contract contained an anti-assignment of the policy clause, the supreme court held that the requirement in the purchase agreement “did not constitute an assignment of either the policy or the proceeds thereof.” Id. at 283, 43 N.W.2d at 101. In fact, “[i]t gave the vendee no rights against the insurer, but only against the [insureds] so far as concerned the application of the proceeds in case of loss or damage.” Id., 43 N.W.2d at 101-02. In dictum, the court went on to say that a post-loss assignment is not an assignment of the policy:

Assignment, after loss, of the proceeds of insurance does not constitute an assignment of the policy, but only of a claim or right of action on the policy. Such an assignment does not void the policy under a provision that if it is assigned without the insurer’s consent it shall become void.

Id., 43 N.W.2d at 102 (citations omitted).

In Illinois Farmers, the Minnesota Supreme Court held that arbitration is required to resolve automobile-glass claims. 683 N.W.2d at 796. But the insurer in that case did not contend that glass claims were not assignable. Rather, the dispute centered on whether the glass claims were arbitrable singly or collectively. Id. at 798. There is nothing in the Illinois Farmers opinion that supports an inference that the insurance policy here contained an anti-assignment clause. But, if the policy did have such a clause, it is clear that the insurer did not raise it as an issue.

Reitzner dealt with a casualty insurance policy on property purchased by vendee on a contract for deed. 510 N.W.2d at 22. The vendee was the named insured and the vendor’s assignee was listed as an additional insured. Id. The property was damaged by a fire that the named insured intentionally set. Id. Policy language stated that such an intentional act voided the policy and precluded payment to the insured who set the fire and to “any other insured.” Id. The court of appeals held that the clear language of the policy excluded coverage to the additional insured. Id. at 24.

In dictum, the court discussed the standing of an assignee, who took an assignment of both vendor and vendee interests, to bring an action against the insurer. Id. at 26. The court concluded that despite a prohibition against assignment of “this policy,” the assignee “did not receive a pure assignment of the policy, but rather, received an assignment of the proceeds due under the policy should the claim be successful.” Id.

Finally, in Sangren, the court of appeals addressed the assignment of a homeowner’s insurance policy that contained an anti-assignment clause. 504 N.W.2d at 790. The court held that the insurer had waived any objection to the assignment. Id. Then, in dictum, the court added that “this was not really an assignment of the policy. Rather it was an assignment of the proceeds of the policy.” Id.

None of the Minnesota precedents on which the glass repair companies rely provides controlling law on the issue before us. In three of the cases, the comments regarding the assignment of proceeds are dicta, and in the fourth, no issue as to a prohibition of assignment was raised. Moreover, in the three cases in which the dicta appears, the insurance policies prohibited assignment of the “policy” itself. The courts in those cases simply recognized a difference between assigning a policy and assigning loss proceeds. In the cases before us now, however, the anti-assignment clauses refer to rights and interests and duties. This prohibitory language is broad enough to reach loss proceeds as well as the policies themselves.

We hold that the issue on appeal is controlled by the Minnesota Supreme Court’s most recent decision as to contractual anti-assignment clauses in Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267 (Minn.2004). Although it is not an insurance-policy case, Travertine observed that “our precedent that parties may agree that their contractual rights and obligations are not to be assigned is well-established.” Id. at 272. The court traced the precedent back to its 1964 decision in which the court explained the general rule as to assignment of proceeds:

The general rule is that the right to receive money due or to become due under an existing contract may be assigned even though the contract itself may not be assignable. A contract to pay money may be assigned by the person to whom the money is payable, unless there is something in the terms of the contract manifesting the intention of the parties that it shall not be assigned.

Id. (quoting Wilkie v. Becker, 268 Minn. 262, 267, 128 N.W.2d 704, 707 (1964)).

The Travertine court then noted that the disputed management agreement contained the prohibition that “the rights and obligations of Berkey/Lenna shall not be assignable.” Id. The court held that this language was a sufficient indication of “something in the terms of the contract manifesting the intention of the parties that it shall not be assigned.” Id.

The glass repair companies here contend that Travertine is not sound authority because it does not involve an insurance policy. The Minnesota Supreme Court has stated that insurance policies are sometimes treated differently from ordinary contracts because the insurance business is quasi-public in nature. Illinois Farmers, 683 N.W.2d at 802. The court has explained that, because of the nature of the insurance business, the state may regulate it so as to protect the public and, “[i]f a term in an insurance contract conflicts with Minnesota statutes, the contract term becomes unenforceable.” Id. But as to the issue of the broad prohibition against assignment without the insurer’s consent, the glass repair companies have not shown that insurance contracts here are sui generis or that anti-assignment clauses conflict with statutory law. Thus, general principles of contract law apply, and Travertine, applying such principles, controls the outcomes of these cases.

We also reject the glass repair companies’ argument that public policy dictates the free assignability of post-loss proceeds. Just as the insurance industry is highly regulated, “Minnesota’s auto glass industry is highly regulated” as well. Illinois Farmers, 683 N.W.2d at 796. Public policy dictates that an insured ought to be able to select his own auto glass vendor and that the insurer should be required to pay that vendor as long as the vendor’s charge is fair and reasonable. That policy is reflected in Minnesota’s Unfair Claims Practices Act, Minn.Stat. § 72A.201, subd. 6(14) (2006). The glass repair companies have not shown how the anti-assignment clauses at issue violate or detract from the public policy now codified or how a refusal to enforce the clauses would fail to serve public policy.

DECISION

Therefore, we affirm the district court decisions in Star Windshield Repair, Inc. v. W. Nat’l Ins. Co. (A07-216) and Auto Glass Express v. Austin Mut. Ins. Co. (A07-217), and we reverse the district court decision in State Farm Mut. Auto. Ins. Co. v. Archer Auto Glass (A07-830).

Affirmed in part and reversed in part.

      . We note that our decision in this case is consistent with that reached in Auto Owners Ins. Co. v. Star Windshield Repair, Inc., 743 N.W.2d 329(Minn.App.2008).


author: VANDE WALLE, Chief Justice.

text:
    2008 ND 8
    Kelli Jo KOURAJIAN, Plaintiff and Appellee v. Darin Chris KOURAJIAN, Defendant and Appellant.
    No. 20070175.
    Supreme Court of North Dakota.
    Jan. 17, 2008.

      Robert J. Schultz, Conmy Feste, Ltd., Fargo, ND, for plaintiff and appellee.
    Dennis D. Fisher (argued) and Jeff A. Bredahl (on brief), Bredahl & Fisher, Fargo, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Darin Kourajian appealed from a district court order which denied his motion for a change of custody without granting an evidentiary hearing. We affirm.

I.

[¶ 2] Darin and Kelli Kourajian divorced in Iowa in 2004. Darin Kourajian was granted custody of the two eldest children, while Kelli Kourajian took custody of the two youngest children. Kelli Kourajian and the two youngest children had moved to North Dakota in 2003. In April 2007, Darin Kourajian brought a motion to change custody of the two youngest children from Kelli Kourajian to himself.

[¶ 3] In support of his motion, Darin Kourajian filed an affidavit alleging that Kelli Kourajian had several jobs and moved four times since 2003; that Kelli Kourajian filed bankruptcy in 2005 and has written bad checks; that Kelli Kourajian was engaged to and lived with a man in 2006 then hired a surrogate to have a baby; that the engagement was called off and Kelli Kourajian gave up her parental rights to the baby; that Kelli Kourajian does not let the children speak to him when she is angry and tells the children to call his new wife inappropriate names; that the children are not doing well in school and are frequently tardy or absent; that it is inappropriate for the eight-year old boy and six-year old girl to share a bedroom; that Kelli Kourajian is an alcoholic and mixes sleeping pills with alcohol; that Kelli Kourajian leaves the children home alone to go to a store, bar or her friends’ homes; that Kelli Kourajian had their oldest child babysit during a 2006 visit while she went to the bar; that the children in his custody missed their flight home because Kelli Kourajian was unable to get the children ready in time; that Kelli Kourajian called him at 1:00 a.m. on a school night and their son was still up playing video games; and that Kelli Kour-ajian leaves him inappropriate messages.

[¶ 4] Darin Kourajian’s affidavit also stated that he is remarried, owns a four-bedroom home in a safe neighborhood and has been a chiropractor for three years; that his home is more routine and structured; that the children in his custody are in bed by 9:30 p.m. on school nights; that they do family activities together; that his brother and Kelli Kourajian’s parents and sister live nearby; that his new wife supports his efforts to gain custody and is a loving stepmother; and that the children in his custody are good students and involved in extracurricular activities.

[¶ 5] Kelli Kourajian submitted an affidavit stating that she is a recovering alcoholic who has been sober since July 2006; that she attends weekly AA meetings; that the children have lived in a peaceful, stable environment in her home since the divorce; that she has numerous family members nearby involved in the children’s lives; that she works as a receptionist; that she provides the children with insur-anee and takes them to regular check-ups; that the children are involved in extracurricular activities and are well-acclimated to the Fargo area; and that she obtained a protective order against Darin Kourajian in November 2002 due to physical abuse. Darin Kourajian submitted a responsive affidavit which denied all allegations of abuse.

[¶ 6] In its June 2007 order, the district court found no prima facie case for modification of custody and denied Darin Kourajian’s motion without holding an evi-dentiary hearing.

II.

[¶ 7] Darin Kourajian argues he established a prima facie case for custody modification under N.D.C.C. § 14-09-06.6(4).

[¶ 8] Before custody may be modified after a two-year period following a prior custody order, the district court must consider whether a material change in circumstances has occurred and, if the court finds a material change in circumstances, the court must decide whether custody modification is necessary to serve the best interests of the child. N.D.C.C. § 14-09-06.6(6). A moving party demonstrates a material change in circumstances by establishing a prima facie case under N.D.C.C. § 14-09-06.6(4), which provides:

A party seeking modification of a custody order shall serve and file moving papers and supporting affidavits and shall give notice to the other party to the proceeding who may serve and file a response and opposing affidavits. The court shall consider the motion on briefs and without oral argument or evidentia-ry hearing and shall deny the motion unless the court finds the moving party has established a prima facie case justifying a modification. If a prima facie case is established, the court shall set a date for an evidentiary hearing.

[¶ 9] The standard for establishing a prima facie case was outlined in Lagro v. Lagro, 2005 ND 151, ¶ 16, 703 N.W.2d 322 (citations omitted):

A party seeking custody modification under N.D.C.C. § 14-09-06.6(4) is entitled to an evidentiary hearing if the party brings a prima facie case, by alleging, with supporting affidavits, sufficient facts which, if uncontradicted, would support a custody modification in favor of that party. Generally, the opposing party must rebut a prima facie case by going forward with evidence showing the moving party is not entitled to the relief requested. Where the opposing party presents counter affidavits which conclusively establish that the allegations of the moving party have no credibility or where the movant’s allegations are, on their face, insufficient, even if uncontra-dicted, to justify custody modification, the court, under N.D.C.C. § 14-09-06.6(4), can find the moving party has not brought a prima facie case and deny the motion without an evidentiary hearing.

A prima facie case does not require facts which, if proved, would mandate a change of custody as a matter of law. Tank v. Tank, 2004 ND 15, ¶ 12, 673 N.W.2d 622. A prima facie case only requires facts which, if proved at an evidentiary hearing, would support a change of custody that could be affirmed if appealed. Id. A prima facie case is only “enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Id. (citations omitted).

[¶ 10] As noted in this Court’s decision in Lausen v. Hertz, 2006 ND 101, ¶ 7, 714 N.W.2d 57, citing Lagro, there is disagreement amongst the Court regarding whether a denial of an evidentiary hearing on a motion for a change of custody should be reviewed under an abuse of discretion standard or should be reviewed as a matter of law. Nevertheless, we conclude that under either standard of review, Darin Kourajian failed to establish a prima facie case for a material change of circumstances.

[¶ 11] Darin Kourajian alleges Kelli Kourajian has issues with alcohol abuse. A material change of circumstances includes important new facts unknown at the time of the prior custodial decree. Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38. Kelli Kourajian’s alcoholism was a fact that existed and was known to the court at the time of the prior order and therefore is not a new fact to be taken into consideration.

[¶ 12] Darin Kourajian makes several other allegations regarding Kelli Kourajian’s personal life, work habits and change in residence. A material change of circumstances can occur if a child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development. Id. (citations omitted). The party seeking to modify the custody order bears the burden of proof. N.D.C.C. § 14-09-06.6(8). Darin Kourajian provided little or no competent firsthand knowledge of the allegations in his affidavit or how they have negatively impacted the children in Kelli Kourajian’s custody. The purpose of the prima facie case requirement in N.D.C.C. § 14-09-06.6(4) is to avoid holding custody modification hearings based on mere allegations alone. It is not the purpose of the requirement to allow the moving party an opportunity to investigate allegations. Even if all of Darin Kourajian’s allegations were presumed to be true, the allegations were not based on firsthand knowledge and therefore are insufficient to warrant an evidentiary hearing.

III.

[¶ 13] The district court order denying the motion without an evidentiary hearing cited Lagro but did not detail which of the several applicable points of law included in Lagro were applied to the case at hand. We reiterate our preference for specific findings of fact in decisions regarding child custody matters, rather than use of forms such as the one in the record in this case.

[¶ 14] We affirm.

[¶ 15] DALE Y. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.


text:
    2008 ND 7
    CITY OF MINOT, Plaintiff and Appellee v. Tim BOGER, Joni Boger, Timothy John Boger, Jr., and Marissa Boger, Defendants and Appellants.
    No. 20070158.
    Supreme Court of North Dakota.
    Jan. 17, 2008.
    Rehearing Denied Feb. 21, 2008.

      Nevin Van de Streek, City Attorney, Eaton, Van de Streek & Ward, Minot, N.D., for plaintiff and appellee.
    Robert S. Rau, Bosard, McCutcheon & Rau, Ltd., Minot, N.D., for defendants and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] Tim Boger, Joni Boger, Timothy John Boger, Jr., and Marissa Boger appealed from a judgment enjoining them from storing or parking heavy construction equipment and allowing their employees to mobilize for work on their property, and dismissing their counterclaim for damages against the city of Minot for inverse condemnation. We conclude the district court did not err in issuing the injunction as we have modified it or in dismissing the Bo-gers’ claim for damages. We affirm the judgment as modified.

I

[¶ 2] The Bogers own three city lots in Minot which are zoned single family residential. The first two lots were purchased by a contract for deed in April 1981, and the Bogers obtained a warranty deed for the lots in July 1985. They obtained the third lot in February 1997. The Bogers built a home and later built a commercial building on the lots. For the past 25 years the Bogers have operated a street-sweeping business, Boger and Sons Super Vac, on their property. According to the Bo-gers, no one is employed in this business other than family members. Recently the Bogers began operating a lawn care business, B & B Ground Service, out of their home. Non-family members are employed in this business. As a result of their business activities, the Bogers have used their property to store business equipment when it is not in use. The equipment includes street sweepers, front-end loaders, dump trucks, and other machinery. Employees of the businesses reported to work at the Boger residence, picked up the equipment they needed, and left their personal vehicles at the residence until their work days were completed.

[¶ 3] In October 2002, the city of Minot brought this action against the Bogers to enjoin them from conducting the businesses out of their home property, alleging those businesses did not qualify as permissible “home occupations” under the applicable city zoning ordinance. The Bogers counterclaimed, alleging Minot’s attempt to enforce the zoning ordinance constituted an unconstitutional taking of their property through inverse condemnation. Following an evidentiary hearing and other proceedings, the district court granted an injunction:

1. The defendants (or of any one or combination of the defendants), and those in privity with them (or any one or combination of them) are enjoined from storing or parking heavy construction equipment or similar equipment including but not limited to street sweepers, front-end loaders, back-hoes, skid-loaders, fork-lifts, belly-loaders, motor-graders, dump trucks, Bob Cats, paint trucks, and snow-plows on the following described premises (hereafter “the premises”), to wit: Lots 3, 4, and 6, Block 6, Radio City Subdivision of Blocks 5, 6, 7, and 8, Ward County, North Dakota.
2. The defendants (or of any one or combination of the defendants), and those in privity with them (or any one or combination of them) are enjoined from using the premises as a place for the employees of the defendants (or of any one or combination of them), as a site for mobilizing for working for the defendants (or of any one or combination of them). As used herein “mobilizing for work” means reporting to work at a place and leaving at or near that place the vehicle, if any, which one used in order to arrive at such place.

The court also dismissed the Bogers’ counterclaim, concluding there had been no taking of their property through enforcement of the zoning ordinance.

II

[¶4] The Bogers contend the district court erred in construing the applicable Minot zoning ordinance and in determining they were violating the ordinance.

[¶ 5] In Hentz v. Elma Twp. Bd. of Supervisors, 2007 ND 19, ¶ 9, 727 N.W.2d 276, we said:

We interpret ordinances as we would any statute. GO Committee v. City of Minot, 2005 ND 136, ¶9, 701 N.W.2d 865 (citations omitted). Ordinance interpretation, like statutory interpretation, is a question of law subject to full review upon appeal. Id. (citation omitted). “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. In construing a statute, we ascertain the enacting body’s intent by giving the statutory language its plain, ordinary, and commonly understood meaning. GO Committee, at ¶ 9. “ ‘We construe statutes as a whole and harmonize them to give meaning to related provisions.’ ” Id. (quoting Larson v. Larson, 2005 ND 67, ¶ 8, 694 N.W.2d 13).

[¶ 6] A “home occupation” is permitted on property zoned single family residential under Minot’s zoning ordinances if it meets the definitional criteria. In the district court, the parties agreed that the 1978 version, rather than the amended 1985 version, of Minot Zoning Ordinance No. 2223, applied:

Home Occupation: Any occupation or activity which meets all of the following tests:
(a) The occupation is managed and owned by a person residing on the premises and not more than one other person is employed by the owner/manager on the premises except members of the immediate family of the owner/manager who also live on the premises.
(b) The exterior of the premises used for the home occupation is indistinguishable from any other residential dwelling of like design and character, in that no commercial displays, show windows, exterior storage areas, parking areas, are evident except that a name plate or business sign not more than 2 feet square may be exhibited, which is attached flush to the side of the building.
(c) The home occupation does not generate pedestrian traffic substantially greater, or vehicular traffic or vehicular parking substantially greater or substantially different in kind or character, than that ordinarily associated with a similar dwelling which is used solely for residential purposes.
(d) The home occupation is no more dangerous to life, personal safety, or property than any other activity ordinarily carried on with respect to premises used solely for residential purposes.
(e) No loud or unpleasant noises, bright, or glaring lights, offensive or noxious fumes, or odors, or perceptible vibrations attributable to the home occupation are emitted from the premises.

[¶ 7] The Bogers argue the court erred in imposing the restriction on parking heavy construction equipment on the premises because the ordinance “is silent as to the number or quality of vehicles that may be sited at a residence.” The Bogers’ argument ignores that subdivision (b) of Ordinance No. 2223 provides “no commercial ... exterior storage areas, [and] parking areas, are evident” on the exterior of the premises. Further, subdivision (c) of Ordinance No. 2223 requires that the home occupation “not generate ... vehicular traffic or vehicular parking substantially greater or substantially different in kind or character, than that ordinarily associated with a similar dwelling which is used solely for residential purposes.” If the Bogers are claiming a due process violation, the due process clauses of the federal and state constitutions are not violated under the void-for-vagueness doctrine if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law. In re McGuire, 2004 ND 171, ¶ 19, 685 N.W.2d 748. We believe the ordinance gives adequate warning of the proscribed conduct.

[¶ 8] The district court found the Bogers were in violation of Ordinance No. 2223. The court found the Bogers used their property as a marshaling point for B & B Ground Service employees and those employees parked their vehicles on or near the premises and used the Bogers’ work vehicles and equipment at various job sites. The court further found the Bogers used their “premises for external storage and parking of equipment, machinery, and commercial vehicles.” The equipment included a grader, two or three street sweepers, a pay loader or front-end loader, Bobcats, dump trucks, vacuum trucks, and vats for melting tar. The court found these vehicles and machinery were “substantially greater or substantially different in kind or character, than that ordinarily associated with a similar dwelling which is used solely for residential purposes.”

[¶ 9] A finding of fact is clearly erroneous under N.D.R.Civ.P. 52(a) if it is not supported by any evidence, if, although there is some evidence to support the finding, a reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous view of the law. WFND, LLC v. Fargo Marc, LLC, 2007 ND 67, ¶ 13, 730 N.W.2d 841. We conclude the district court’s finding that the Bogers did not have a permissible “home occupation” under the Minot zoning ordinance is not clearly erroneous.

Ill

[¶ 10] The Bogers argue that 1985 amendments to the Minot zoning ordinance were improperly promulgated and are invalid. The Bogers also contend their use of the land had vested because it predated the “purported amendments” to the ordinance and, therefore, they should be grandfathered into the ordinance. However, based on a stipulation of the parties, the district court applied the 1978 version of the ordinance, not the 1985 version. The Bogers did not purchase the first of their lots until 1981. The Bogers’ arguments about improper promulgation of the 1985 amendments to the ordinance and about being grandfathered into the ordinance are irrelevant under the circumstances.

IV

[¶ 11] The Bogers contend that the City improperly considered aesthetics in implementing the zoning ordinance.

[¶ 12] In Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 110, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the Supreme Court held that application of New York City’s Landmarks Preservation Law to private property did not constitute a taking of property under the Fifth Amendment where the city’s zoning laws prevented use of the air space above Grand Central Terminal after the Landmarks Preservation Commission designated it as a “ ‘landmark’ ” having “ ‘a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.’ ” The Court noted “[o]ver the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance.” Id. at 107, 98 S.Ct. 2646 (footnote omitted). “It is well settled that the state may legitimately exercise its police powers to advance esthetic values.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Courts have recognized a government’s substantial interest in aesthetics and the right to maintain its aesthetics through zoning regulations. See, e.g., Florida Pub. Telecomm. Ass’n, Inc. v. City of Miami Beach, 321 F.3d 1046, 1055 (11th Cir.2003). Minot could validly consider aesthetics under its authority to zone for the purpose of promoting “the general welfare of the community.” N.D.C.C. § 40-47-01.

V

[¶ 13] The Bogers appear to argue the injunction is overbroad because it denies them rights which other owners of residential property within Minot may enjoy. They contend the injunction improperly prohibits “all categories of equipment” on their property and the employment of any non-family members.

[¶ 14] The injunction does not prohibit “all categories of equipment,” but merely prohibits “storing or parking heavy construction equipment or similar equipment.” The prohibited equipment is specified in a nonexclusive list of what can only be considered “heavy construction equipment.” The injunction does not prohibit commonly used commercial vehicles. The injunction does prohibit the Bogers “from using the premises as a place for the employees of the defendants ... for mobilizing for working for the defendants.” Under subdivision (a) of Minot Zoning Ordinance No. 2223, one non-family member may be employed on the premises in a valid “home occupation.” To the extent the district court’s injunction can be interpreted to prohibit one non-family member employee from “mobilizing” for work on the Bogers’ premises, it is overbroad. We modify the injunction to permit one non-family member employee to mobilize for work on the Bogers’ premises. See Federal Land Bank of St. Paul v. Ziebarth, 520 N.W.2d 51, 59 (N.D.1994) (modifying injunction to conform to district court’s intention).

VI

[¶ 15] The Bogers argue a regulatory taking of their property has occurred through inverse condemnation.

[¶ 16] Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal. McCrothers Corp. v. City of Mandan, 2007 ND 28, ¶34, 728 N.W.2d 124. In Wild Rice River Estates, Inc. v. City of Fargo, 2005 ND 193, ¶ 13, 705 N.W.2d 850 (internal citations omitted), this Court set forth the standards governing a takings claim when there has not been a physical taking of property or a deprivation of all economically beneficial use of the property:

These standards are “designed to allow ‘careful examination and weighing of all the relevant circumstances.’ The primary Penn Central factors are ‘[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations,’ and the ‘character of the governmental action’ — for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good.’ The Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.”

[¶ 17] The Minot zoning ordinance advances a legitimate and substantial government interest. The Bogers had no legitimate or reasonable investment-backed expectations in essentially using their premises in a commercial rather than a residential manner, because Minot Zoning Ordinance No. 2223 was in effect several years before they purchased their residential lots. See McCrothers Corp., 2007 ND 28, ¶ 35, 728 N.W.2d 124. The ordinance has not deprived the Bogers of economically beneficial use of the property. As the district court noted, “[t]he injunction does not affect the use of their residential property as a residence in any manner, and the evidence presented [established] that the Bogers’ property would not have any substantial increased marketability or market value if the property was allowed to be used for commercial or industrial use and that the highest and best use of the Bogers’ property was that of a residential home and garage.” We conclude there has not been an unconstitutional taking of the Bogers’ property without just compensation. See Eck v. City of Bismarck, 302 N.W.2d 739, 745 (N.D.1981) (“a zoning ordinance is not invalid merely because it prohibits the highest or best use of the property”); Eck v. City of Bismarck, 283 N.W.2d 193, 198-99 (N.D.1979) (city’s enactment of ordinance limiting use of property to agricultural purposes and failure to amend ordinance to allow single-family residential use did not support action for inverse condemnation); Dorman v. Township of Clinton, 269 Mich.App. 638, 714 N.W.2d 350, 352-58 (2006) (plaintiff who asserts denial of economically viable use of land must show that property was either unsuitable for use as zoned or unmarketable as zoned); MC Props., Inc. v. City of Chattanooga, 994 S.W.2d 132, 136 (Tenn.Ct.App.1999) (refusal to rezone property from residential to commercial was not unconstitutional taking by inverse condemnation where existing zoning allowed beneficial use even if it deprived owners of best use of property).

VII

[¶ 18] We have considered the other arguments raised by the Bogers and conclude they are without merit. The judgment, as modified, is affirmed.

[¶ 19] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.