Lead Opinion
This is an appeal from a district court order granting partial summary judgment in an eminent domain proceeding. We lack jurisdiction, decline to exercise our supervisory powers, and, accordingly, dismiss.
Central Power Electric Cooperative, a corporation (hereinafter Condemnor), is a rural electric generation and transmission cooperative. As part of a joint venture of Condem-nor and Otter Tail Power Company, a new substation was built just outside of Botti-neau, North Dakota. Part of this project included the construction of a transmission line from Gardena to Bottineau. The property touched by the proposed route for the new line included a residential mobile home park owned by C-K, Inc., a corporation, and Gordon D. Carlson, Robert R. Kromrey, and Rose M. Carlson (hereinafter Landowners).
After failed negotiations, eminent domain proceedings under chapter 82-15 of the North Dakota Century Code were initiated by Condemnor on March 8, 1993, when it served a summons and complaint on Landowners. Landowners timely filed an answer in which they requested a trial by jury on the matter of damages.
The partial summary judgment order, drafted by Condemnor, granted Condemnor a transmission line easement on a portion of Landowners’ property, and conditioned this easement “upon the payment of $2,500 into the Court by [Condemnor] pending determination of actual damages.” Immediately thereafter, prior to any determination of damages by a jury, Condemnor deposited $2,500 with the court and constructed the transmission line across Landowners’ property. This appeal followed.
Landowners raise three issues on appeal: first, whether the trial court violated NDCC § 32-15-29 when it made a determination of damages without a hearing on the merits, and when it granted Condemnor possession of an easement on Landowners’ property pri- or to a hearing on damages; second, whether the granting of partial summary judgment was proper; and third, whether the order for partial summary judgment in this matter is a final order.
I. APPEALABILITY
Condemnor has made a motion to this court requesting that we dismiss the appeal
There is a well-established, two-prong inquiry used when analyzing the jurisdiction of this court to consider appeals from orders in cases where there are unadjudicated claims remaining to be resolved by the trial court. E.g., Thompson v. Goetz,
In determining the appealability of this particular order granting partial summary judgment, we acknowledge that under the unique set of facts surrounding this case, this interlocutory order may well involve the merits of the action, or at least some part thereof. See NDCC § 28-27-02(5). Although not all orders granting partial summary judgment fall within § 28-27-02, see e.g., Kavaney Realtor & Developer, Inc. v. Travelers Ins. Co.,
Not only do we require Rule 54(b) certification for appeals of orders for partial summary judgment, Ceartin v. Ochs,
Because Landowners essentially concede in their appellate brief that this order is not appealable without Rule 54(b) certification, we consider this appeal as a request to exercise our supervisory jurisdiction. N.D. Const. art. VI, § 2; see B.H. v. K.D., D.D.,
Landowners would have us believe that the nature of this ease is extraordinary, and, as such, merits our review. They distinguish the facts of this case from those of a typical eminent domain proceeding under chapter 32-15 of the North Dakota Century Code; specifically, the fact that Con-demnor was allowed to construct the transmission line on the property before damages were determined and before final judgment was entered. Section 32-15-29 of the North Dakota Century Code does not provide for quick take, it provides for possession after judgment. Landowners’ argument of the impropriety of Condemnor’s actions is based on what we said in Johnson v. Wells County Water Resource Bd.,
If the contentions Landowners are making are true, then this may indeed be an unjust and extraordinary case warranting our supervision. The possible illegality and unconstitutionality of such an act is made clear in Johnson,
If we could stop our analysis here, we would surely grant supervision; however, we must also consider whether other adequate remedies, exist. Lang v. Glaser,
Although this case may have the necessary ingredients to constitute an extraordinary case, Landowners, in effect, sat on their rights. They did not take the necessary steps available to prevent the injustice they now complain of, and the remedy of appeal will be available after entry of final judgment. It is for these reasons that we decline to exercise our power of supervision, and therefore dismiss. We will consider the possible illegality of Condemnor’s actions on appeal from the final judgment should one be brought later. Condemnor’s request for attorney’s fees is denied, and neither party is awarded costs.
Notes
. Eminent domain proceedings under chapter 32-15 may be divided into two parts. A bench trial is held to determine public benefit and necessity, and a jury trial may be requested to determine damages. NDCC § 32-15-13.
. The fact that we are dismissing this appeal for lack of jurisdiction is not meant to reflect negatively on the validity of Landowners’ substantive issues on appeal. See Williams Co. v. Hamilton,
When contested, necessity is generally found unless the condemnor acted arbitrarily, capriciously, in bad faith, or fraudulently. Oakes Mun. Airport Auth. v. Wiese,
. The portion of our constitution addressing quick take states:
“Section 16. Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner.... No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or ascertained and paid into court for the owner.... Compensation shall be ascertained by a jury, unless a jury be waived. When the state or any of its departments, agencies or political subdivisions seeks to acquire right of way, it may take possession upon making an offer to purchase and by depositing the amount of such offer with the clerk of the district court of the county wherein the right of way is located.”
N.D. Const, art. I, § 16.
Concurrence Opinion
concurring in result.
The trial court’s order granting Central Power possession of the property before a jury determined the damages, effectively created a form of “quick-take” eminent domain authority without benefit of law and without benefit of immediate review.
Quick take authority is given by our State Constitution only to the “state or any of its departments, agencies or political subdivi-sions_” Art. I, § 16, N.D. Const. Even then, the quick take authority is not a self-executing grant but must be authorized by the Legislature. Johnson v. Wells County Water Resource Bd.,
Here there was a court hearing as to the necessity for the taking, and in that respect this procedure differs from a quick take procedure. But the Constitution also specifies that no right of way shall be appropriated to the use of any corporation “until full compensation therefor be first made in money or ascertained and paid into court for the owner,” and, most significantly, requires that the “Compensation shall be ascertained by a jury, unless a jury be waived.”
Here, contrary to the Constitution, compensation, as determined by Central Power, not by a jury, was paid into court, and Central Power was permitted to take possession of the property “pending determination of actual damages by a jury.”
Adding insult to injury, Central Power, while using C-K’s property, moved to dismiss C-K’s appeal from the order granting partial summary judgment on the issue of necessity and permitting Central Power to have possession of the property, relying on City of Williston v. Beede,
In concluding that the issue of necessity and the issue of damages should not be bifurcated for purposes of appeal, it is apparent that we did not contemplate a procedure in the trial court that would violate the Constitution by permitting the condemnor to take the property before the damages have been ascertained by a jury. Here, notwithstanding that the procedure is clearly contrary to the provisions of the Constitution, the majority concludes that the issue of necessity for the taking cannot be determined on appeal because the damages are yet to be ascertained.
The majority relies on the evolution of our application of Rule 54(b) NDRCivP, to the appeal process. I have been an advocate of that development. See, e.g., Gillan v. Saffell,
But, despite what was an obviously improper acquisition of the property, C-K, as the majority opinion notes, did not request this court to exercise its supervisory jurisdiction, which can be done expeditiously. Rather, C-K pursued the ordinary route of appeal with its attendant time intervals for preparing a transcript and briefing, thus allowing time for the transmission line to be built. Although C-K argues that the continued presence of the transmission line damages its business, and perhaps its employees and customers, that argument should have prompted C-K to ask this court to exercise its supervisory jurisdiction rather than to file an appeal. City of Williston, supra, juxtaposed with the cases cited by the majority concerning our application of Rule 54(b) for determining the appealability of eminent domain cases, after a finding of use and necessity but prior to a determination of damages, clearly set forth the appropriate path to seek immediate relief from this Court. The most severe damage suffered by C-K’s failure to do so may well be to Central Power should this Court on appeal from the final judgement in this matter reverse the finding of necessity made by the trial court.
I am persuaded by the majority opinion that under these circumstances we should not exercise our supervisory jurisdiction and I therefore concur in the result reached by the majority opinion.
. The procedure used by Central Power — and approved by the trial court — to obtain possession of the property before the damages were ascertained by a jury and paid into court and the procedure to appeal the trial court's order are the crux of the issue before us. The substantive issues of whether or not there was a necessity for the taking and whether or not the sum deposited by Central Power ultimately proves adequate compensation are immaterial at this juncture. It is not the prerogative of Central Power or the trial court to ascertain damages. It is for the jury. Until the jury has determined the damages and that amount is paid into court, Central Power is not entitled to possession of the property.
Concurrence Opinion
concurring in the result.
Because there is no Rule 54(b) certification, I agree this case is not appealable. I also agree that this is not a case that warrants exercise of our supervisory power. I therefore concur in the result. I do not endorse the majority’s gratuitous discussion of the merits of the case. In fact, I wish that I could wave a magic wand and erase footnote 2. While dictum may be useful on rare occasion, I do not believe it serves any useful purpose on this occasion.