974 N.W.2d 393
N.D.2022Background
- In August 2017 West Fargo authorized a sewer improvement project requiring a right-of-way across private property including McAllister’s lot.
- West Fargo sued to condemn the needed sewer easement using quick-take procedures and deposited $36,000 as an offer of compensation with the court.
- The district court allowed immediate possession under quick-take and granted West Fargo’s motion in limine excluding testimony that the easement made McAllister’s property nonconforming under the city front-yard setback ordinance.
- The parties stipulated to a condemnation judgment for $36,000, with costs and fees reserved; an initial appeal was dismissed for improper Rule 54(b) certification, and on remand an amended judgment awarded fees and costs (unchallenged).
- McAllister appealed, arguing quick-take was unauthorized for the sewer easement and that exclusion of evidence about setback nonconformity/severance damages was erroneous.
Issues
| Issue | Plaintiff's Argument (City of West Fargo) | Defendant's Argument (McAllister) | Held |
|---|---|---|---|
| Whether quick-take is available for a sewer right-of-way under N.D. Const. art. I, §16 and N.D.C.C. §40-22-05 | §40-22-05 expressly contemplates rights-of-way for laying mains, pipes, ditches or conduits for sewage and authorizes deposit/taking procedure | "Right of way" is limited to highway/road purposes; constitutional quick-take was meant for highways/incidental uses only | Court held "right of way" not limited to highways; quick-take authorized for the sewer easement. |
| Whether the phrase "right of way" in the constitution/statute should be restricted to highway purposes | Context and statutory language (listing pipes/ditches for water/sewage) show broader meaning; historical/lexical sources support non‑highway uses | Relies on definitions tied to highway statutes and past cases to argue a narrow meaning | Court concluded the term, as used in the 1956 amendment and §40-22-05, includes easements for sewer mains and is not limited to roadways. |
| Whether ch. 40-22 requires special assessments as a prerequisite to using quick-take | Chapter permits special assessments but uses "may"; funding by special assessment is permissive, not mandatory | Chapter title and context imply the "special assessment method" is the required funding mechanism | Court held special assessments are optional; §40-22 does not condition quick-take on using special assessments. |
| Whether excluding testimony that the easement created setback nonconformity (and related severance-damage theory) was an abuse of discretion | Evidence was premised on an incorrect interpretation of the zoning ordinance and thus irrelevant; exclusion within trial-court discretion | Easement changed the reference line and rendered the property nonconforming, supporting severance damages | Court affirmed exclusion: ordinance interpretation was a legal question, district court’s reading was correct, and excluding testimony based on the incorrect theory was not an abuse of discretion. |
Key Cases Cited
- Eberts v. Billings Cnty. Bd. of Comm’rs, 2005 ND 85, 695 N.W.2d 691 (constitutional amendment authorizing quick-take permits legislative quick-take procedures)
- Johnson v. Wells Cnty. Water Res. Bd., 410 N.W.2d 525 (N.D. 1987) (discussing scope of quick-take authority in prior context)
- EOG Res. Inc. v. Soo Line R. Co., 2015 ND 187, 867 N.W.2d 308 (term like "right of way" may vary by statutory context)
- State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, 712 N.W.2d 828 (terms separated by "or" have independent significance)
- Linstrom v. Normile, 2017 ND 194, 899 N.W.2d 287 (district court has discretion over evidentiary rulings)
- Arnegard v. Arnegard Twp., 2018 ND 80, 908 N.W.2d 737 (ordinance interpretation is a question of law)