dissenting.
Summary judgment disposition of the claims of DeLair is not appropriate. I agree with that portion of the majority opinion wherein the Court holds that the area where the accident occurred is not a public road in that it is within an incorporated city.
Irrespective of the fact the road was a non-public road, there remains an obligation on the part of LaMoure County and Sheridan Township to comply with both 39-13-07 NDCC and the general law that highways must be built to eliminate dangerous situations. If such dangerous situations do exist, the county and township are mandated by statute to install uniform traffic control devices necessary to regulate, warn and guide traffic. Pursuant to 39-13-06 NDCC, the Highway Commissioner has approved a manual and specifications for traffic control devices for all highways, as promulgated by the United States Department of Transportation pursuant to Title 23 U.S.C. Sections 109(b), 109(d) and 402(a). See Belt v. City of Grand Forks, supra.
Whether the intersection involved in the accident in this case is a dangerous situation is a question of fact. Whether the county and township have complied with the specifications is also a question of fact.
The majority opinion has found facts to exist. These facts were never found to exist by the trial court and were not conceded to exist by the parties. On this ap*64peal from the summary judgment, the majority has made the unwarranted and disputed finding of fact as follows:
“_we conclude there was no duty on LaMoure, Sheridan, or the Piehls because the intersection, controlled as it was by a stop sign, did not represent an unreasonable risk or dangerous condition to prudent individuals lawfully using the road.”
Another finding of fact made by the majority is as follows:
“_however, we believe that the intersection, controlled as it was by a stop sign, was not a dangerous or unusually hazardous condition to a driver exercising ordinary care and driving within the limits of the law.”
The Supreme Court, in a continuation of an unauthorized trend, is once again acting as a trier of fact. The fact finding function is not vested with the Supreme Court in that trial de novo has been abolished in civil cases. Thus, this trend should no longer be engaged in.
The majority opinion has found facts in dispute to support its position as follows: 1) that the stop sign was an adequate warning; 2) that the stop sign was properly located; 3) that the intersection was not a dangerous situation; 4) that the fence as a dangerous barrier to the traveling public could not be forseen as dangerous in the exercise of ordinary care; 5) that DeLair did not exercise ordinary care; 6) that De-Lair used the highway unlawfully; and 7) that no engineering defects exist in the construction and planning of the intersection.
Defendants Walter Piehl and Hattie Piehl, as adjacent landowners, also owe a duty to the DeLair and the traveling public to not allow a condition to exist which renders travel unsafe, a point conceded by the majority opinion. Whether the Piehls were negligent or not in this respect is an issue of fact. The Supreme Court cannot make a determination and find as a fact that the Piehls were not negligent. I agree with the dissent of Justice Pederson who holds that the action against the Piehls cannot be disposed of summarily.
The law clearly delineates the powers of the trial court and the powers of the Supreme Court. The Supreme Court, in usurping the trial court’s power as a fact finder, creates untold problems with the litigants and encourages numerous unnecessary appeals. If the Supreme Court is to grant trial de novo, the law should be changed to permit it to do so. Until that happens, the Supreme Court must limit itself to the functions vested with an appellate court on review and trust the trial courts to function as triers of fact.