dissenting.
[¶ 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 majority opinion now attempts to provide some procedure, which creates an exception to the rule limiting a motion to dismiss a criminal prosecution. See State v. Howe, 247 N.W.2d 647, 652 (N.D.1976) (stating “[a] procedural rule cannot abrogate a substantive right”).
[¶ 26] Numerous courts have permitted the issue of whether a road is a public road by prescription to be tried in a criminal proceeding. See State v. Hutchison, 721 N.W.2d 776 (Iowa 2006) (holding the State *243has the burden of proof to establish a road is private to uphold a conviction for criminal trespass); see also State v. Eisele, 37 Minn. 256, 33 N.W. 785, 785 (1887) (stating, “[a] large part of the cases of indictments for obstructing highways have been cases in which the legal existence of the public right was disputed. The existence of such right is an element in the crime charged, which may and must be proved like any other fact necessary to constitute the offense”); State v. Berg, 28 Idaho 724, 155 P. 968 (1916) (holding the State must provide sufficient evidence to establish the road is public in a criminal trial for obstructing a public highway); State v. Nesbitt, 79 Idaho 1, 310 P.2d 787, 793-94 (1957) (Smith, J., dissenting) (noting that the State has the burden of proving beyond a reasonable doubt that the road in question is a public highway); State v. Teeters, 97 Iowa 458, 66 N.W. 754 (Iowa 1896) (holding whether a road is a public highway is a question for the fact finder in a criminal trial for obstructing a public highway); State v. Hayes, 125 Kan. 375, 263 P. 782 (1928) (affirming a judgment of conviction for obstructing a public highway when the State proved the road was in fact public); State v. Brown, 72 N.M. 274, 383 P.2d 243 (1963) (holding the defendant may provide evidence a road is private in his criminal trial for obstructing a public highway); State v. Tyler, 54 S.C. 294, 32 S.E. 422 (1899) (holding the fact finder has the responsibility of determining whether a road is public by way of prescription in a criminal action for obstructing a public highway); Martin v. Commonwealth, 159 Va. 894, 165 S.E. 425 (1932) (holding the Commonwealth must prove beyond a reasonable doubt that the roadway is a public highway to sustain a conviction for obstructing a public highway); Clark v. State, 25 Ala.App. 30, 140 So. 178 (1923) (holding the State must prove beyond a reasonable doubt a road is a public highway by prescription in criminal cases despite the burden of proof being a preponderance of evidence in civil cases); State v. Camp, 134 Idaho 662, 8 P.3d 657 (Idaho Ct.App.2000) (affirming a criminal judgment of obstructing a public highway when the defendant failed to prove he had a prescriptive easement over the road); State v. Trove, 1 Ind.App. 553, 27 N.E. 878 (1891) (affirming a directed verdict of not guilty of obstructing a public highway, when the State failed to show that the alleged highway had been established by law, or by prescription or dedication); Ewen v. Commonwealth, 239 Ky. 492, 39 S.W.2d 969 (1931) (holding the Commonwealth must prove the road in question is a public highway in a criminal trial for obstructing a public highway); State v. Hood, 143 Mo.App. 313, 126 S.W. 992 (1910) (holding the State has to prove beyond a reasonable doubt a road is public by dedication in a criminal trial for obstructing a public highway); State v. White, 96 Mo.App. 34, 69 S.W. 684 (1902) (holding the fact finder must first determine whether a road is public by way of prescription before determining whether .the defendant is guilty of obstructing a public highway).
[¶ 27] In the context of a charge of the offense of criminal trespass or obstruction of a public road, I have not found one jurisdiction that has dismissed a criminal conviction based on the theory that the issue of whether a road is public by prescription can only be tried in a civil action.
[¶ 28] The law in North Dakota is well-settled that “section lines are considered public roads open for public travel....” N.D.C.C. § 24-07-03. Likewise, the law in this state is well-settled “[a]ll public roads and highways within this state which have been or which shall be open and in use as such, during twenty successive years, hereby are declared to be public roads or highways and confirmed and es*244tablished as such whether the same have been laid out, established, and opened lawfully or not.” N.D.C.C. § 24-07-01. The issue is a factual one and not “ill-suited,” but rather suited for a jury. The trial court did not err in denying Herzig’s motion to dismiss the charge against him or in denying his motion for judgment of acquittal under Meyer.
[¶ 29] Because I would overrule State v. Meyer, the trial court’s denial of the jury instruction requested by Herzig on “legitimate dispute” was not error.
[¶ 30] I would overrule the plurality decision in State v. Meyer and affirm the criminal judgment.
[¶ 31] MARY MUEHLEN MARING