927 N.W.2d 865
N.D.2019Background
- MDU sought eminent domain under N.D.C.C. ch. 32-15 to acquire an easement across Behm’s land for a 3,000-foot natural gas pipeline to supply a BNSF railroad switch.
- The switch is heated in winter; BNSF claims pipeline gas would increase reliability and lower cost versus propane truck deliveries, which can be disrupted by weather.
- District court bifurcated necessity and damages, then found the pipeline was an authorized public use but that condemning Behm’s property was not "necessary," characterizing the taking as mere convenience for MDU/BNSF and imposing permanent harm on Behm.
- MDU appealed the necessity ruling; Behm cross-appealed on multiple issues but did not adequately brief them.
- The Supreme Court reviewed North Dakota precedent on judicial review of public necessity and whether serving a single industrial customer defeats a public-use finding.
- The Court reversed the district court, holding the taking was necessary for a public use and remanded for trial on damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pipeline is a "public use" under N.D.C.C. ch. 32-15 | MDU: Pipeline is an authorized public use because MDU is a public utility and pipelines are statutorily listed | Behm: The pipeline serves only a single private user (BNSF) and is mere convenience, not a public use | Held: Public use — MDU is a public utility and condemnation to serve a single customer can still be a public use |
| Whether taking Behm’s property is "necessary" for the public use | MDU: The particular property is reasonably suitable; other routes are impractical or much more expensive; consideration of future conflicts supports chosen route | Behm: Condemnation is unnecessary because BNSF can keep using propane and alternate routes exist; this is mere convenience | Held: Necessity satisfied — court must defer to condemnor absent bad faith, gross abuse, or fraud; focus is on necessity of the utility, not the customer |
| Whether the district court properly weighed alternative routes and private injury | MDU: Alternatives would add substantial cost or create subordinate-easement complications; condemnor may weigh future development and conflicts | Behm: Alternatives would reduce private injury and are therefore preferable | Held: District court erred in substituting its judgment; MDU reasonably weighed alternatives and future risks; Behm failed to show condemnor acted in bad faith or abused discretion |
| Cross-appeal issues adequacy | — | Behm raised multiple issues but did not brief them | Held: Issues inadequately briefed; Court declined to address them |
Key Cases Cited
- Brandt v. City of Fargo, 905 N.W.2d 764 (N.D. 2018) (restate standard limiting judicial review of public necessity and deference to condemnor absent bad faith, gross abuse, or fraud)
- Oakes Mun. Airport Auth. v. Wiese, 265 N.W.2d 697 (N.D. 1978) (court’s role is limited to whether particular property is reasonably suitable and usable for authorized public use)
- KEM Elec. Coop., Inc. v. Materi, 247 N.W.2d 668 (N.D. 1976) (customer convenience and condemnor’s construction/maintenance convenience can support necessity)
- Otter Tail Power Co. v. Malme, 92 N.W.2d 514 (N.D. 1958) (condemnor may consider future development in siting lines to avoid later relocations)
- Cent. Power Elec. Coop., Inc. v. C-K, Inc., 512 N.W.2d 711 (N.D. 1994) (discusses deference to condemnor and limits where chosen route may be less suitable)
- Spring Valley Water-Works v. San Mateo Water-Works, 28 P. 447 (Cal. 1883) (holding condemning for mere convenience is insufficient — relied on by district court but distinguished by this Court)