Irwin v. City of Minot, 860 N.W.2d 849

Background

Robert and Donna Irwin own 8.12 acres adjacent to property from which the City of Minot sought clay to build emergency earthen dikes during the 2011 Souris River flood.
The City contracted with a neighboring landowner (Sedevie) for clay and paid for a specified quantity; contractors entered the Irwins’ land without permission and removed an indeterminate amount of clay and topsoil used in dike construction.
The Irwins’ property suffered physical damage (cement slab, barn, fence, native prairie) and the City did not seek the Irwins’ permission or pay compensation.
The Irwins sued the City in inverse condemnation under N.D. Const. art. I, § 16 alleging the City took/damaged their property for public use without just compensation; both parties moved for summary judgment.
The district court granted summary judgment for the City, reasoning the City acted under its police power in a sudden emergency and therefore compensation was not required; the Irwins appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the City’s removal of clay from Irwins’ land constituted a compensable taking/damage for public use	Irwins: City deliberately removed soil for public use and did so without consent or compensation; proximate cause of damage was the City’s action	City: Action was an exercise of police power in an emergency (doctrine of necessity); not an eminent-domain taking and thus noncompensable; statutory immunity applies	Reversed – summary judgment improper; factual dispute whether an actual emergency justified uncompensated taking; remand for further proceedings
Whether the “police power emergency” doctrine applies to bar compensation when property is taken in a flood emergency	Irwins: Doctrine inapplicable where clay was available elsewhere and City previously contracted for clay; burden should not fall solely on Irwins	City: Emergency justified immediate action without eminent-domain proceedings or compensation	Court: Question of fact exists about actual necessity; court cannot resolve on summary judgment; remand to decide merits
Whether contractor negligence (vs. City action) was the proximate cause of damage	Irwins: Damage resulted from City-directed extraction for dike construction	City: Damage was caused by contractors’ negligence in following instructions, not a government taking	Court: Did not decide now; issue may arise on remand and need not be addressed at this stage
Whether sovereign/municipal immunity or statutory defenses preclude recovery	Irwins: Not addressed as primary defense to inverse condemnation claim	City: Asserts immunity/authorization defenses for emergency actions	Court: Did not resolve; remand for further consideration, concurrence questions reliance on immunity given precedent

Key Cases Cited

Eck v. City of Bismarck, 283 N.W.2d 193 (N.D. 1979) (inverse condemnation requires proof of taking/damaging for public use and proximate causation)
Knutson v. City of Fargo, 714 N.W.2d 44 (N.D. 2006) (summary judgment review and inverse-condemnation principles)
Aasmundstad v. State, 763 N.W.2d 748 (N.D. 2008) (public entity liability when property is taken/damaged for public use without eminent-domain proceedings)
Wilson v. City of Fargo, 141 N.W.2d 727 (N.D. 1966) (police-power takings uncompensated only when exercised to meet sudden emergencies)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (U.S. 1992) (emergency necessity standard for avoiding compensation; government must show actual necessity to avert grave threats)
Bowditch v. Boston, 101 U.S. 16 (U.S. 1880) (recognizes police-power destruction of property without compensation in imminent peril)
TrinCo Inv. Co. v. U.S., 722 F.3d 1375 (Fed. Cir. 2013) (doctrine of necessity applies only when imminent danger and actual emergency exist)
Holtz v. Superior Court, 475 P.2d 441 (Cal. 1970) (describes police-power emergency doctrine and limits on noncompensable takings)
Caltex, Inc. v. United States, 344 U.S. 149 (U.S. 1952) (recognizes sovereign power to destroy or appropriate property to avert public peril)
Kitto v. Minot Park District, 224 N.W.2d 795 (N.D. 1974) (concurrence questioning immunity as a defense to governmental takings)
Bulman v. Hulstrand Constr., 521 N.W.2d 632 (N.D. 1994) (concurrence cites limits on reliance on governmental immunity)