concurring specialty-
This should have been a “classic” Rule 52(a) case. The case was tried to the court without a jury and there was a controlling fact question — was the public use of the road adverse and for a sufficient time period to make § 24-07-01, NDCC, applicable? My concern starts with the absence of a special finding of fact on this controlling fact question.
The trial court prepared and filed a memorandum opinion and “if an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.” Rule 52(a), NDRCivP. The memorandum opinion ended with the following paragraph:
“I conclude that the plaintiff has failed to establish, either by clear and convincing evidence or by a preponderance of the evidence, that the road in question was being used under claim of right for the required period. Accordingly, I conclude that easement by prescription has not been obtained, and that the complaint should be dismissed. Counsel for the defendant will prepare the appropriate concluding documents.”
No findings of fact or conclusions of law were incorporated into the “appropriate concluding documents.” The conclusion by the trial court in the memorandum opinion is very comparable to that made by the trial court in Struehynski v. Decker, 194 N.W.2d 741 (N.D.1972), which we said was inadequate. I recognize the futility of my efforts to upgrade findings of fact so that we can, without reservation, give trial court findings the presumption of correctness that they deserve under Rule 52(a). It is an ideal which may never be reached and I acknowledge that there will be some waste of judicial effort involved when the result is presumptively an affirmance of the judgment anyway. If there is a reversal of the judgment indicated, however, I can foresee serious questions.
One additional matter requires my comment. In the succinct statement of fact quoted by the Chief Justice from the trial court’s memorandum opinion is a reference to “a trail or road that followed section lines up to the gate.” It is by no means clear to me that Renschler’s fence or gate does not obstruct the section line right-of-way. In Small v. Burleigh County, 225 N.W.2d 295, 298 (N.D.1974), we said that “belated tolerance of fencing on section lines is not effective to deprive the public of rights . . . . ” See also, Saetz v. Heiser, 240 N.W.2d 67 (N.D.1976). It should be understood that we are not at this time reversing our holdings in Small or Saetz.