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NOWLING v. BNSF RAILWAY

No. 20010302.

646 N.W.2d 719 (2002)

2002 ND 104

Walter NOWLING, Carol Nowling, Rose Misialek, and Julian Lizakowski, Personal Representative of the Stephie Lizakowski Estate, Plaintiffs and Appellees, v. BNSF RAILWAY, Defendant, and and Bill Slominski d/b/a Minto Grain, LLC, Defendant and Appellant.

Supreme Court of North Dakota.

Rehearing Denied August 15, 2002.

Attorney(s) appearing for the Case

Robert C. Fleming (argued), and Neil W. Fleming (appeared), Fleming & DuBois, Cavalier, for plaintiffs and appellees.

Steven C. Ekman, Welch and Ekman, Grafton, for defendant and appellant.

David C. Thompson, Grand Forks, for amicus curiae Mark Tibert & Suzi Tibert, Melvin Tibert & Cathy Tibert.

Ronald F. Fischer, Pearson Christensen, Grand Forks, and Nicholas B. Hall, Hodny Currie Lawyers, Grafton, for amicus curiae City of Minto.

VANDE WALLE, Chief Justice.

[¶ 1] Bill Slominski, doing business as Minto Grain, LLC ("Slominski"), appealed from a judgment quieting title to a tract of land to Walter Nowling, Carol Nowling, Rose Misialek, and Julian Lizakowski, as personal representative of the estate of Stephie Lizakowski ("the Nowling group"). We hold a railroad right of way for an operating railroad line is a public highway under N.D. Const. art. XII, § 13 and is not

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