concurring specially.
On the facts of this record, I concur with the result reached by the majority opinion. I write separately to express my concern with the issue of trying title to real property in a summary proceeding without the benefit of formal discovery. I take no issue with the advice in footnote 2 of the majority opinion that because it enacted § 33-06-02, NDCC, any argument as to that procedure is one to be presented to the Legislature. I do not, however, concede that this court is powerless to impose a different procedure should justice in the form of procedural due process so require. See Article VI, Section 3, North Dakota Constitution [“The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state ...]. We have stated in Rule 35(b) of the Rules of Appellate Procedure that on appeal if it is “necessary or proper” we may order a new trial of the entire cause or some specific issue or issues and that if “in the consideration of any appeal, it becomes apparent to the supreme court that some issue involved in the case has not been tried, or if tried has not been determined, the supreme court may remand the case to the trial court for the determination of the issue ...”
Thus in the instance in which the title to real property is at issue in an eviction action and involves complicated factual and legal questions, I would not foreclose the option to require that the title to real property be tried only after adequate time has been allowed for discovery as to the factual issues and research and briefing of the legal issues. Although they were not eviction actions, if actions such as Kim-Go v. J.P. Furlong Enterprises, Inc., 460 N.W.2d 694 (N.D.1990); Furlong Ent. v. Sun Exploration & Prod,., 423 N.W.2d 130 (N.D.1988); Wehner v. Schroeder, 335 N.W.2d 563 (N.D.1983), appeal after remand, 354 N.W.2d 674 (N.D.1984), Malloy v. Boettcher, 334 N.W.2d 8 (N.D.1983) and other “complicated” cases had been brought as eviction actions, I would not hesitate if I were a trial judge to refuse to determine the title to that real property in that procedural posture. As an appellate judge, I would not hesitate to remand for further proceedings if I believed there were issues involving the title to real property that had not been adequately tried or determined.
By analogy I note that we have previously held that a criminal action is ill-suited to a settlement of a dispute as to whether or not the necessary requirements have been met to declare a road a public road by prescription, State v. Meyer, 361 N.W.2d 221 (N.D.1985), and that a criminal prosecution for theft is not the appropriate means *750of resolving a dispute over the ownership of crops between a cotenant in possession and a bank, State v. Brakke, 474 N.W.2d 878 (N.D.1991).
An eviction action in which title to the property is at issue is markedly similar to those actions, but I agree that where, as here, eviction actions in which the title to the property is either not complicated or the issue of title is advanced merely to delay the eviction action, the summary proceeding is appropriate. Where those circumstances are not present, I do not believe the defendant or the court can be required to determine the title without adequate discovery and research.