State v. Herzig

[¶ 25] I, respectfully, dissent. The majority of courts have concluded the issue of whether a road is public by prescription can properly be decided in a criminal proceeding. I would overrule State v. Meyer, 361 N.W.2d 221 (N.D.1985), and affirm the criminal judgment. The holding in Meyer is not in line with case law in other states and forces the criminal court to decide if there is a “legitimate dispute” regarding whether the road at issue is a public road by prescription. Meyer provides no guidance on how, when, or by whom this determination is to be made in the criminal proceeding. The…