Southeast Cass Water Resource District v. Burlington Northern Railroad

SOUTHEAST CASS WATER RESOURCE

DISTRICT, political subdivision Dakota, Ap of North

State Plaintiff pellee, BURLINGTON NORTHERN RAILROAD

COMPANY, Corporation, a Delaware Appellant.

Defendant Civ. No. 940106. Dakota. Court of North

Feb. Gen., Krenz, Atty. Atty. Ann Asst.

Julie Bismarck, curiae, Office, General’s for amicus of N.D. Submitted on brief. State MESCHKE, Justice. Company

Burlington Northern Railroad (BN Railroad) judg- summary from appeals declaring responsible ment it the costs of necessary bridges modifications its drainage improve- culverts to accommodate by the Water ments directed Southeast Cass (District) County Resource District for Cass Drain 45. We conclude that NDCC 61—16.1— constitutionally places BN Railroad responsibility costs of continuing necessary drain- accommodating its track age improvements. We affirm.

I

Drain in 1948 for 45 was established along natu- County Fargo at West Cass two rail- ral channel. The drain intersects Railroad, operated by BN a main road tracks crossings, by-pass line and line. At both existing openings BN under the Railroad has water. tracks accommodate the flow of area, flooding large- Potential urbanization, ly increasing caused the deepen, plan expand, District and widen Drain 45. improvement, BN Rail-

After the drain’s bridges by-pass line road’s line and its main longer the ex- culverts will no accommodate flow, pected determined. water District modify BN The District notified Railroad in- bridges culverts to accommodate unaltered, BN Rail- If left creased runoff. artificially bridges and culverts will road’s Drain 45 expected through flow obstruct the up Fargo to back into West and cause water heavy precipitation, the District in times of drain, modify need to determined. The disput- bridges, and the culverts was Railroad, dispute who but it did ed necessary expense must bear the changes bridges and culverts. failed, the District negotiations After Twichell, McCullough, E. Ohnstad Steven declaratory judgment BN Rail- sought a plaintiff appellee. Fargo, for West 61-16.1- responsible road making Nilles, Crothers, 42 “for associated with Hansen Da- the costs J. & Daniel through trackfs] Ltd., necessary openings vies, Fargo, appel- for defendant point [the] track[s] where lant. of, drains in- any public ]” accommodate the the limits or across intersects By partial summary creased water flow. highway, injury but not to the of such judgment, the trial court concluded that road. instances where NDCC 61-16.1-42 BN Railroad to highway, run a drain across the state modifying bear the costs of highway department, county board culverts, and ruled: commissioners, township or the board of requirement [T]he contained in section 61- supervisors, be, may as the case when Century 16.1-42 of the North Dakota Code by notified the water resource board to do companies pay that railroad for the costs so, necessary openings through shall make making, building keeping repair and the expense, road or at its own necessary openings the points at the where keep repair and shall build and all re- drains intersect with railroad tracks is quired bridges provided culverts or un- as appropriate police pow- exercise of a valid der section 61-16.1-43. In instances er; ..., therefore, and section 61-16.1-42 along where drains are laid or within the Century of the North Dakota Code does rights way highways, of roads or the prohibition not violate the constitutional drains shall kept open be maintained and damaging private or property with- by expense and at the of the water re- just compensation out as found in section may source district concerned. A drain be 16 of article I of the North Dakota Consti- along any laid necessary, railroad when tution. injury railroad, but not to the of the and pending resolved, After other necessary claims were ivhen it is to run a drain across railroad, BN appealed Railroad summary this final company, the ivhen judgment, claiming that the statute by the water resource board to do notified so, wrongly compel construed to the railroad to shall make necessary opening the modify existing bridges railroad, and culverts with- through such shall build the re- and, compensation out if place the statute culverts, did quired bridges and and shall railroad, expense the on the the statute is keep repair. them in private unconstitutional as a prop- added). (Emphasis argues BN Railroad this erty just compensa- use without section is not compel modify intended to it to tion. bridges the and expense. culverts at its own

II BN urges Railroad phrase, that the “at its Section 61-16.1-42 of the North Da expense,” own part used in the that describes Century kota Code directs: governmental a responsibility unit’s along opening Drains and across roads and when a drain intersects a may railroads. along, Drains be laid highway,1 with- or part but omitted from the that 1.Although drain, requires govern- NDCC 61-16.1-42 constructing bridge the cost of such or mental unit to accommodate "at its culvert following shall be shared in the man- expense," NDCC 61-16.1-43 directs some ner: cost-sharing bridges for certain and culverts at 1. The may, state water commission if funds the highways: available, intersections of drains with certain participate in accordance with regulations such bridges may pre- rules and Construction as and culverts —Costs. remaining The water resource board shall scribe. The construct such cost shall be borne bridges forty percent by county sixty percent or culverts over or connection with the judgment a drain as in its be district which has created the need passage part furnish any private from one for such to another of construction. If, however, moneys or tract of land intersected have not been made farm such drain. participation The cost of such available to the construction commission for charged part forty shall be in accordance with cost of con- subsection then drain, percent structing any bridge, bridge such cul- cost of a or culvert vert, passageway paid by county sixty percent or shall shall be maintained under be board, quthority charged shall of the water resource cost of the drain to the necessary expense part shall district. be deemed a bridges of the cost of maintenance. 3. Where such or culverts are con- any bridge Whenever participation, culvert is to be con- structed with federal financial county township highway sys- structed on a exceeding the costs the amount of the federal tem over and participation across or in connection with a shall be borne the district a rail- responsibility sponsibility when drain intersects railroad’s when describes road.2 only indicates that drain intersects do work is not

the railroad must says places The District 61-16.1-42 NDCC financially responsible for the costs. Accord- responsibility railroad not Railroad, interpretation ing to perform modify its own work Legislature’s supported de- statute culverts, also but to absorb the costs of precursor amendment to the feat of 1963 work. Because statute that does have 61-16.1-42 would added authorize reimbursement to the railroad expense,” work, “at phrase, company doing its own the District plainly urges describes the railroad’s re- the statute means that the statute that introduced, provisions county according of 1963 Bill did House No. 535 section, state, may highways, the be. explicitly part case as did the obligated necessary that a railroad was to make 1462 2. Section 61-16.1-42 derives from section openings through expense.” "at its own tracks Revised Codes of North Dakota: 1895 however, Agriculture, House The Committee on companies. Duty may be railroad Drains recommended an amendment that the House any along, the or laid within limits of across passed, stating that the railroad "shall make the road, and when laid out and con- so necessary opening through at its such railroad any be structed or when road shall hereafter added). expense...(Emphasis own Journal along any or it shall constructed across drain Thirty-eighth the of the House of the Session of county duty be the of the board of commission- 345-46, Assembly, Legislative at 444-45 ers, township supervisors, may or as the case bill, During hearings the Senate on the a "Wah- be, keep open to the same and free from all attorney representing Railway peton ... N.D. may along any drain laid obstructions. A be against” lines testified the House amendment. necessary, injury but not to the railroad when road, Minutes the Senate Committee on Natural to of such it shall be when Resources, (March 1, 1963). across a at 8 The Senate run drain railroad shall be recommended, duty company, when notified such Committee on Natural Resources so, drain the board of commissioners to do passed, to Senate its own amendment necessary opening through make said bill, to expense” deleting lan- the "at its own keep repair road and to build and suitable guage and added: bridges. culverts or constructing bridges The cost of such or cul- virtually unchanged This 1895 statute remained following verts shall shared manner: through a of recodifications. 1905 Re- series fifty percent company; fifty to the railroad 1837; § vised of North Dakota 1913 Com- Codes percent management to the water district 2481; § piled North Da- Laws of Dakota North bridge which for such or has created need Explicit § Revised Code of 1943 61-2135. kota culvert. expenses drain reference to for a across Thirty-eighth Journal of the Senate of the Session highway appeared federal first in the statute or Legislative Assembly, at 824-25 Legislature § 61- when the amended House to concur in The refused Highway Depart- the "State 2135 amendment, and Senate a conference committee necessary opening through ment” "make 1127; Journal, 1118-19, was formed. House keep highway” repair and "build and said Journal, at 923. conference commit- Senate expense.” at its suitable culverts did not with the Senate amendment tee concur Legis- ch. 323 In 1945 N.D.Laws the House and further recommended specifically some lature authorized allocation of adding expense” "at be de- amendment its own cost- costs when a drain crosses a 1307-08; Journal, leted the bill. House sharing provisions precursor NDCC 61- Journal, then at 1043-44. The bill was Senate substantially 21-32 that was similar to current explicit passed chambers without both ch. 347 NDCC 61-16.1-43. 1955 N.D. Laws language responsibility, lack on the railroad’s 32; (codi- §§31 and ch. 387 1 1957 N.D.Laws it, for costs. §§ fied as 61-2131 and 61-2132 the 1957 were created In water resource districts Supplement to the North Dakota Revised Code boundaries,” emphasis "hydrologic with 1943). management were eliminated to water districts encourage "drainage ... In districts duplication jurisdiction. Report of the avoid reorganize management dis- under our water Council, Legislative Forty-Seventh North Dakota laws,” Legislature enacted NDCC 61- trict (1981); Legislative Assembly, at 110-11 supplement manage- 16-46 -47 to water § 1. NDCC 61-16.1-01. N.D.Laws ch. 632 See Report Dakota ment district laws. Legislative North -43 are essential- Committee, Present NDCC 61-16.1-42 and Thirty-eighth Research ly of former sections 61-16-46 (1963); recodifications Assembly, Legislative at 54 1981). -47 of water to conform this creation (repealed §§ 9 N.D.Laws ch. 421 and 10 management replace water parroted part resource districts provisions of NDCC 61-21- These -32, relating As districts. 31 and districts. This, carry railroad must coupled proposed the costs. 1963 amendment to the fore- procedure with the 61-16.1-42, lack of a like that in runner of NDCC that would have cost-sharing by NDCC 61-16.1-43 for phrase, expense,” added the “at its own district, says the District evidences an inten intersecting of the section on a drain tion responsible that the railroad is Legislature’s shows the intention modifying costs of its own structures. The that the railroad not absorb the costs of the points District already out this court has work. interpretation used this in State ex rel. Trim subsequent While a amendment to a Co., Minneapolis, ble v. P.St. & S. S. M. statute be useful sometimes to shed 150 N.W. 463 when we light on the intent of an earlier version of the construed a forerunner to this statute. statute, v. North Dakota Workers Effertz Interpretation of a statute is a Bureau, Compensation N.W.2d question fully of law that is reviewable (N.D.1994), legislative rarely help inaction Zuger this Court. v. North Dakota Ins. Spaeth ful. Eddy State ex rel. Furni Ass’n, (N.D.1992). 135, 136 Guar. 494 N.W.2d (N.D.1986), ture 386 N.W.2d we We first look language of the statute Legislature’s held a later defeat of an amend Surveying itself. Eng’g Nesdahl & v. Ackerland subject ment on the cannot evidence what a (N.D.1993). rp., Co 507 N.W.2d prior Legislature intended when it first en Code, Unless otherwise defined in the words then, acted the statute. Since we have often given plain, ordinary, then- and common pointed out that proposed the defeat of a ly meaning. understood Kim-Go J.P. Legislature amendment a later does not Inc., Furlong Enterprises, 460 N.W.2d help questions answer original about the in (N.D.1990). Only language if the of a tent of an enactment. Peterson v. McKenzie ambiguous statute is will extrinsic aids be County School Dist. 467 N.W.2d Legislature’s used to ascertain the intent. (N.D.1991); Coles Glenburn Public School 689;

Nesdahl NDCC 1-02-39. As we said (N.D.1989). Dist. 436 N.W.2d 264 n. 2 Zuger ambiguous a statute is if it is reasoning applies That here. susceptible rational, differing, but mean Any attempt glean legislative intent ings. from the Legislature actions of the 1963 BN Railroad and the District each offer especially would be futile this case because rational meanings but different for this stat- diametrically different amendments to the responsibility ute on a railroad’s for the costs forerunner of this section were defeated. changing bridges and culverts to accom- proposed See Footnote 2. One amendment drainage. modate reasonably BN Railroad specified would have perform the railroad argues that expense” use of the “at work “at expense”; its own the other would phrase part highway- the statute on have divided the costs of work on the rail- crossings drain phrase omission of that crossings equally road’s between the railroad from the of the statute on railroad-drain management and the water district. Just as crossings an indicates intent to save the rail- speculate rejection one could that of the “at hand, road from the costs. theOn other expense” its own amendment indicates the that, reasonably District argues because the Legislature’s intention that the railroad any statute is silent on reimbursement to the responsible cost, should not be so too work, railroad the railroad speculate rejection could one that of the cost- responsible is for the costs of the work that sharing Legisla- amendment indicates the the statute directs it to do. We conclude ture’s intention that responsi- the railroad is ambiguous. that the statute is ble for the whole cost. The inaction of the Legislature clarify does not this ambi- Ill guity. ambiguous, When a statute is we consider legislative history assessing Legis- ambiguous, When a statute is we also con- 1-02-39(3). lature’s intention. NDCC BN sider the “common law or statutory former argues Legislature’s Railroad provisions, defeat of including laws the same or Minneapolis, P. & M. “circum- Trimble v. St. S. S. subjects,” well similar enact- Ry. the statute was 150 N.W. 463 stances under which 1-02-39(2) BN Rail- ed.” NDCC im- planned drainage Trimble considered argues requiring railroad that River, non-navi- provements for Mouse express contrary work “is parts that gable natural watercourse drained adopted Legisla- statutory procedure by the Removal six rows of several counties. projects.” pay for water and drain ture to bridge across piling supporting Railroad, by BN the statutes cited But earlier, river, years ten was “neces- built -20, 61-16.1-06, -18, -15 to treat how NDCC . sary [engineer’s] the flow which the obtain resource district finances water contemplate.” N.W. at plans Trimble 150 against them drainage and assesses held that This Court Those statutes do not affected landowners. remove, expense, at its own pay. fix what costs a district must On the obstructions, pilings, artificial like hand, 61-16.1^42 and -43 treat other NDCC drainage channel. flow of the modified intersection costs a district must bear. what railway “if a explained Trimble that crosses that specify sections do not The latter unnavigable stream which serves for obligated pay any of the costs district land, drainage any given area of it must go a railroad track. No a drain may drainage itself to the accommodate reim- cost-sharing with or statute authorizes anticipated, present and reasonably both to a railroad for costs of modi- bursement Also, prospective.” quoting Id. at 466. after fying bridges culverts to accommodate 61-16.1-42, the forerunner section drainage. North 1837 of the 1905 Revised Codes of Historically, statute the inter about Dakota, the Court reasoned: with a railroad has re section of drain It be conceded virtually inception the same since its mained right agents par- the board had the as of language 2. See Footnote That 1895.3 and of as perhaps ex ties interested the state interpreted by this Court in State rel. was contributing financially responsible for to forerunner been 3. Even before enactment of the 1895 construction, statute, of and maintenance laws authorized the costs of our current territorial crossing against companies the drains railroads. of costs railroad assessment drainage projects crossing in 1885 and 1887 railroad tracks. amendments for Territorial changes. wording Dako- only minor made Territory Legislature the of Dakota In 43; 47; Laws, Laws, ch. ta ch. 1887 Dakota specifical- enacted laws on Dakota, Although §§ 2074. 1887 C.L. of Laws, ly ch. treated railroads. 1883 Dakota specified wording omitted that the railroads was §§ One "viewers” to 28. section itself, perform statute maintenance work the the ditch, drain, "any apportion costs or water- for apportioning for continued to authorize Pol.Code, Dakota, Chap- 1883 R.C. of course.” maintenance the rail- both and construction drains, § the LVX For construction of ter roads. apart apportion were "viewers” to "set and Legislature repealed "Chap- the State railroad, corporate or ... a share ... each road all acts of 1883 and ter of the Session Laws proportion to work in the benefits which of said amendatory N.D.Laws ch. 51 thereof ..1895 improvement, to each from such and will result chapter on § entire new and enacted an feet, share, length give and location of each This of Drains in "Construction and Maintenance yards cubic of earth to number of the estimated State,” including specifically a section enumerat- therefrom, price per and cubic be removed yard, Companies.” ing "Duty of Railroad each, of or and the cost of the construction explained § in footnote ch. 51 19. As N.D.Laws 2, separately, specify the manner in allotment it shall this section directed that "when new mainte- the work be done.” Id. For which shall necessary railroad to run a drain across a ditch, drains, any established "[w]hen nance duty company ... to railroad shall be the such part or in this act drains either in whole through railroad, opening said make the any public corporate or road or or keep repair culverts roads, and to suitable build any viewers ... or such benefits § bridges.” It is this 1895 R.C.N.D. or company, apportion ... if shall to the reviewers unchanged railroad, virtually wording has remained corporate [sic] road or (drainage pro- since See NDCC 61-21-31 then. portion expenses costs and thereof such individuals, (operation jects); water 61-16.1-42 private require them to districts). impose Drainage laws that perform resource like manner said labor in said costs Dakota, Pol.Code, upon railroad accommodation costs of 1883 R.C. as individuals.” deeply traditions. in our State’s are embedded Chapter Since railroads have LVI 28. any a whole to the removal of IV material and artificial obstructions Constitution, The North art. Dakota flowage of in the stream. It the water I, “[p]rivate property directs that shall upper ripar- also be conceded that damaged public not be taken or use with ” right ian owners would have had Yet, just compensation.... out cannot we injurious case of an obstruction which interpret our nar grant state constitution to them, inor case of the failure of the rights guaranteed by than federal rower railway same, company to remove Matthews, constitution. See State v. themselves enter the land of such (N.D.1974). 90, 99 look to N.W.2d So we company expense. and to at its remove it precedents regula both state federal tory taking private added). use. (emphasis Trimble at 470 We have accurately doubt the no Trimble statements Railroad submits that re depicted understanding prevailing at the changes quired will “involve between three time, clearly applied the statute to make and four hundred thousand and the dollars responsible for the modification traffic,” rerouting substantial cre costs as well as the work. unjustified ating expense “an [the for which substantially Statutes that “By itself will derive no benefit.” railroad] previously existing same as are con statutes forcing comply with 61—16.1— [it] Section strued continuations of same law. 42,” argues, BN Railroad “has Distinct Mills, Sprynczynatyk ex rel. State 523 effectively right-of- taken [BN Railroad’s] (N.D.1994); N.W.2d NDCC 1-02-25. ways crossing Drain 45 them and committed original That statute has re use.” BN Railroad centers its ar day. mained intact to Related statutes gument recognition on this Court’s that the interpretation. reinforce this NDCC 61- scope of the North Dakota constitutional 16.1-09(16) authorizes the to “[o]rder District takings clause on use is broader appropriate initiate legal compel action to respects some than its Fifth Amendment entity responsible for the maintenance counterpart in the United States Constitu repair any bridge or culvert remove tion, Users, citing Grand Forks-Traill Water ... artificial block which hinders or de (N.D.1987), Hjelle, Inc. v. 413 N.W.2d 344 through creases the flow of water such appeal dismissed bridge or culvert.” Another subsection di 1002, addition, 98 L.Ed.2d 969 In “cooperate rects railroads to with [water re out, points City citing Railroad Minch v. of source] districts in to “[c]oordi- this effort” (N.D.1983), Fargo, N.W.2d 71 cert. 332 de proposals installation, modification, nate 829, 105, nied 464 U.S. 104 L.Ed.2d S.Ct. 78 bridges or construction of ... culverts and to (1983), public entity compen- 108 a can cause appropriate sizing achieve maximum and con damage fully property sable to tak without sistency openings.” of road NDCC 61—16.1— ing it. 09(21). We therefore that conclude NDCC precedents, The District relies on clear places continuing responsibility 61-16.1-42 state, argument both federal for its that for the costs of accommodating increased compensable no taking requiring there is a drainage in this case BN Railroad. changing railroad to absorb the costs of its Still, inquiry complete. our is not If and culverts to drain accommodate constructions, susceptible Q. a statute is age changes. Chicago, of two B. Ry. & Co. v. Grimwood, 561, that would one render it of doubtful constitu Illinois ex rel. 26 not, tionality (1906); and one that would constitu 50 L.Ed. 596 of Graf Paul, Co., one Adop tional must be selected. Matter Ry. ton v. M. & M. 16 N.D. St. of (N.D. K.A.S., (1907); tion 499 N.W.2d 567 N.W. 598 Trim State ex rel. of 1993); 1-02-38(1). We Minneapolis, Ry. therefore ble P. St. & S. M. S. argument (1914); consider BN Railroad’s 28 N.D. 150 N.W. Lake Michigan NDCC 61-16.1-42 Clough, as so construed would vio Shore & S. Co. v. the North late Dakota Constitution. U.S. 61 L.Ed. 374 waterway, or there is a natural “[WJhere a state’s held that Each of these decisions already is highway a exists and required a rail- where police-power regulation company a under its of crossed adjust for the intersection to its track railroad, a taking rail- license to build way not a of the a was any specific grant legisla- road’s us.e. authority to tive obstruct Grimwood, prece- the earliest these waterway, company is bound dents, bridge creek. crossed a the railroad’s crossing, at own keep to make and its its drainage proposed modifications The district all in such as shall meet expense, condition drainage struc- improve the creek to to requirements the reasonable upstream. land The ture and to better drain changed and increased as the conditions the railroad of its district notified use demand.” bridge responsibility statutory to build a new suitably the creek at the intersection with Chicago, (quoting 26 S.Ct. at 347 Id The Su- Grimwood, accommodate the modified channel. Q. Ry. People ex rel. B. & Co. argu- summarized the railroad’s preme (1904)). Court Ill. 72 N.E. ment: summarily rejected rail road’s claim: railway company

The contention of that, bridge lawfully present its railway duty it to hold be the [W]e constructed, general corporate its expense, company, at its own to remove construct, build, operate and power to culvert, bridge, present the creek the from county maintain it, there placed timbers and stones aforesaid, township depth and as the (unless it its also abandons surrenders of the channel under it were suffi- width vicinity right to cross the creek at or cient, time, carry at the off the water of crossing) present to erect at its flowed, creek it then and now bridge a new expense and maintain bridge cannot flows—the foundation regula- crossing that will conform bridge dis- removed and its use be Drainage established Commis- tions turbed, compensation first made unless State; sioners, authority of under the as will be or secured such amount requirement if enforced will and such removing expense sufficient meet the property for private to a amount the timbers and stones the creek meaning of public use within the the Con- bridge length constructing a new such stitution, equal pro- nor a denial plan opening with such under it as the of the laws. tection requires. The com- of the Commissioners Grimwood, 26 S.Ct. at 351. meet pany insists that it to Thus, requiring a rail held that Grimwood be, expenses of its own funds will these out modify bridge expense its own road at Constitution, meaning within regula across dram conform its for use with- of private property for not a of tion is and, therefore, compensation, out public use. law, process of as well a denial to due equal protection of the laws. 598, City Grafton, 113 N.W. In of Grimwood, 582, purposes city condemned for street at at 345. U.S. right railroad’s of strip land within the ruled it the rail- of Supreme The Court for way. sought The railroad reimbursement implied-in-law duty to maintain an road’s changes grading, such as bridge adequate accom- costs of structural opening under the city building sidewalks. The planking, and might “the of water as result modate volume expenses “made lawful, regulations responded that these were estab- reasonable state, necessary by a of this enacted public authority from statute by appropriate lished state, of police power drainage on the so-called time of lands under time to for they that cannot be considered at therefore of creek.” Id 26 S.Ct. either side damage in action.” element of adopted proper Supreme The at 347. that This court held City summary applicable law: lower court’s Grafton expenses the railroad’s Railway for the structural indiana that Law railroads changes compensable: were not railways to construct their over watercourses Court, Supreme

[T]he United States “so as not to with interfere the free use own, identically same,” a statute the same as our drainage approved commission damages held that no could be allowed for plans for an artificial channel that changes necessary structural made required railroads to absorb substantial ex- crossing, held, they such also for rea- pense bridging the channel. One of the appeal clearly sons which to us as sound bridge railroads had earlier constructed a unanswerable, expenditures that such that did not obstruct the stream’s natural are made comply order to argued, flow. The railroads their because express statutory with the enactments railroads were not within the area to be aforesaid, which are construed as mere drained, they did not contribute to the need police regulations. As stated the Su- benefited, drainage, they for would not be preme C., Court of the United B. States and their tracks could be taken with Q. Ry. Chicago, & Co. v. [166 U.S. 17 appropriate compensation. Supreme The (1897)]: 41 L.Ed. 979 “The ex- Court observed that none of the railroad pense erecting gates, planking actually “expropriated,” lands were but the crossings, [sic], maintaining flagment damage temporary was “confined to a incon- necessarily which will laying result in the way rights venience the use of their railroad, out of a street across a must be pending the construction of the drain and the regarded as incidental to the exercise of necessity making expendi- substantial state, police powers and do not money in pass tures of order to their rail- just compensation constitute element of roads over the new watercourse.” Lake to the railroad.” Shore, U.S. 37 S.Ct. at 146. expenses Id. 113 at 602. N.W. of a comply railroad to with a police- reasonable obligations In view of assumed power regulation compensable is not tak- respective companies they accepted when ing.4 State, their franchises at the hands of the very it is clear that the State exercise Shore, precedent Lake a federal like police power laying its out an artificial precedent the North Dakota in Trimble dis earlier, rights way changes cussed watercourse across the with- considered in drain age compelled modify making compensation out companies railroad to Shore, crossing. acting Lake under an for the expense inconvenience and to which Nashville, street-crossing Walters, preceded Similar Ry. decisions tions. C. L. & St. drainage-crossing decisions in the United States U.S. 55 S.Ct. 79 L.Ed. 949 Chicago, Ry. Nashville, Court. B. Q. & Co. v. legislation Since both decisions and Chicago, 166 U.S. 41 L.Ed. tempered imposed have often the ratio of (1897) (When city extends a street across a highway crossings grade on railroads for it is not inhibited the constitutional separations by competing used forms of injunction against taking private property for Atchison, transportation. Compare T. & S.F. compensation, use without nor bound to California, Co. v. Public Utilities Comm'n damages expenses railway company award (rail- 98 L.Ed. 51 constructing gates, planking crossing, main- by permission roads in the streets of state or its watchmen, like, taining públic regu- complain subdivisions could not that their assess- safety proper- lations ty. of lives and fifty percent improvements ment of city compensate Neither is the bound to safety solely and convenience was not based depreciation railroad for in the value of the rail- them, special accruing regulatory benefits crossing). reason of the street There has agency's refusal to allocate costs on the basis of police-power analysis been some shift in this for arbitrary benefits alone not an was exercise of highway crossing. a police power). drainage improvements The Competition any competing this case do not favor with the form of railroads from transportation transportation, together greater navigation, with like taxation on nor does NDCC transportation, require railroads than on 61-16.1-42 truck and bus railroads to contribute to competitors. precedents caused the United States re- their line to This of does quire carefully weigh police-power analysis the courts to not herald the arbitrari- shift in for street-crossing drainage improvement ness and of reasonableness authorized a state imposed by police power regula- legislature. on railroads

893 adjust unless, indeed, compel subjected, that a railroad to they thereby regulations are drainage changes compensation appear power is without it be that the made arbitrarily, wantonly, compensable taking.5 or being are not exerted public private distinguished from for North constitutional other Dakota Several benefit, the disregard of or otherwise clauses, adopted at 1889 Constitu- first con- rights companies fundamental years ago, over tional Convention a hundred cerned, of there in either which cases analysis the police-power relevant are Const, rather exercise would an abuse than an be (“Rail- XII, § N.D. art. 13 here. See project power, and the could hereby high- ... ways declared against oppo- lawfully carried out their be ways, and all ... are declared to railroad[s] sition, compensation. or without with subject legislative be carriers common (“the control; ”); XII, 382, at 147. ... art. 5 exercise of Id. at 37 See also Wabash S.Ct. never Ry. County Drainage police power of state shall Co. South Daviess this v. Cir.1926) Dist., (8th 909, corpo- abridged, permit or so construed as to 12 F.2d 914-15 denied, (same, Shore), to conduct their such a relying on Lake cert. rations business 455, 751, infringe equal rights 47 L.Ed. 873 manner as to of 273 U.S. S.Ct. 71 (1927). state, general well-being of precedents, or the These federal individuals state”).6 continuing police-power Ry. In Wabash Co. v. South Da- demonstrate that 61-16.1-01, 987, 990, (1962). Legislature 8 L.Ed.2d 130 There is no point judicial or fixed at which inter- abstract recognizes general declares that wel- lives, health, Takings ap- under the Clause becomes protection of vention fare and the rights property, people propriate. of of this have all Formulas and factors been management, settings. state tion, ... conserva- developed variety See of Penn development, 123-128, protection, Central, U.S., S.Ct., and control of supra, 438 98 at prevention and for the case, water resources flood each at 2659-2662. Resolution of how- damage ... in the watersheds this state ever, ultimately calls as much for the exercise health, promote thereby protect and logic. judgment application as for the safety, general people welfare of the of this discusses, prece- opinion there are solid As this state. being required railroads dents for accommo- federal, Many opinions, state and have de date drains. power. Taylor, police scribed State v. a state's 561, 76, (1916); Bratberg N.W. 579 33 N.D. 156 Const, XII, adopted originally art. 5 was 452, Advance-Rumely v. Thresher 61 N.D. Const, VII, § 134. in 1889 as N.D. art. The 552, (1931); 238 N.W. 567 State ex rel. reserving police language, source of 514, Gronna, Minot v. 79 N.D. 59 N.W.2d corporations, power be traced with over cannot opinions include: 531 Illustrative federal certainty, probably took but North Dakota Mathews, Francisco v. St. Louis and San Co. proposed for South an 1885 constitution 1, 23, 611 165 41 L.Ed. U.S. corporations article from the The entire Dakota. Williams, (1897); U.S. Erie R.R. Co. 233 adopted by proposal South Dakota 1885 761, 764-65, 34 58 L.Ed. 1155 virtually Dakota in 1889 and has remained South Allard, 51, 65, Andrus v. 100 Const, unchanged. XVII. S.D. art. particularly 210 L.Ed.2d has pertinent description: draft constitution for South Dakota The 1885 regulation by definition—in [Government — rights draft known as Williams and constitutional adjustment of volves the for Constitution, File two were po good. adjustment curtails some Often complete draft considered constitutions exploitation of the use or economic tential for Dakota Convention. 1889 North Constitutional require compensation private property. To Vogel, North Dakota Robert Constitution, Sources the 1889 effectively com all such circumstances would 331, 332 and n. 65 N.D.L.Rev. regulate purchase. pel government (1989) (Sources). See Herbert L. Meschke also hardly go could on if to some "Government Spears, Digging Roots: The Lawrence D. incident to could not be extent values Thayer Corre- Dakota Constitution and the North paying every such diminished (1989). The spondence, 65 N.D.L.Rev. 343 Pennsylvania change in the law." was not for- for South Dakota draft constitution Mahon, 393, 413, U.S. Coal Co. mally at Dakota Constitu- introduced the North 158, 159, (1922); Cen 67 L.Ed. 322 see Penn Convention, Legisla- Long’s copies but tral, U.S., S.Ct., tional supra, at at 2659. Book, containing proposal, were Clause, therefore, tive Hand gov Takings preserves to all of the Convention. distributed members regulate, subject only power ernmental ” " Ibid.; Convention Journal Constitutional 'justice and fairness.' dictates (Journal). S.Ct., 2659; Much of the Dakota 114 North see Gold 590, 594, Hempstead, Constitution was molded sub- North Dakota blatt v. Dist., 909, County Drainage precedent viess 12 F.2d tant that we studied in Northern Comm’n, the federal court for this circuit held that a N.D. States Power v. Pub. Serv. (N.D.1993) (N.S.P.). Missouri railroad was not entitled to dam- N.W.2d Monsanto, ages bridge Supreme for the costs of a a new across Court held that “to Monsanto, waterway artificial applicant created lateral diver- the extent that an registration pesticides [by sion ditch from a the main creek to the Environ- channel. The circuit court Agency], relied on the Mis- mental Protection had a confidential health, souri safety, Constitution of art. economic interest in its virtually constitutional clause cognizable identical to the environmental data that was as a above) XII, present (quoted art. right in a trade secret under state Constitution, law, reserving property right North Dakota protected state was police power corporations.7 Taking over Clause of the Fifth Amendment to United States Constitution.” N.S.P. Any doctrinal turmoil in the United States There, Supreme Court Monsan- Supreme regulatory takings Court about has (cita- to, 467 U.S. at at 2874 anything subject po reached like the omitted), analysis tion used that balanced lice-power Indeed, regulation of railroads. regula- three factors to determine whether recently acknowledged “ police power taking: tion under the created generally that it ‘has “been unable to devel “ action, governmental ‘the character of the op any determining ‘set formula’ for when impact, its economic and its interference with ‘justice and fairness’ that economic ’ expecta- reasonable investment-backed injuries by public caused action” must be ” tions.’ compensable taking.” deemed a Ruckel shaus v. Monsanto opinion distinguished The Monsanto be- statutory 81 L.Ed.2d 815 patterns regu- tween different (citations omitted). impor- registration pesticides Monsanto was an lated at different missions, 135) VII, adopted labeled as Files numerical order as was 1889 as article and has introduced, designations origin. Jour- substantially remained similar with minor generally. corporations nal The article on was renumbering. amendments and Journal at 399- Const, introduced to the Convention File 4 Const, dele- 400; VII; N.D. art. Johnson, gate Martin N. and was identical to that complete art. XII. Since no other state constitu- found the 1885 draft of the South Dakota tions known to have been considered 21-22; Long, Constitution. Journal at T.K. Convention, language corpo- and since the Long’s Legislative Hand Book 38-41 rations article introduced was identical to that in Coincidentally, as the Journal discloses at draft, the 1885 South Dakota we believe that the 13, 1889, July File 4 was introduced same Constitution, language in North Dakota's reserv- day visiting that a commission of South Dakota ing police power corporations, state over was delegates given privilege of the floor at directly taken from the 1885 South Dakota draft. the North Dakota Convention. origin We corpo- have not chronicled the Dakota, In North File 4 was amended with propos- rations article in the 1885 South Dakota changes, minor reintroduced as Files 134 and al. (with File minor variations taken from police power 7. The corporations unique clause on the reservation over is not to North Dakota. Indeed, (and have) there are at language: least eleven states that had seven that still like ty: open- long as NSP aware of the congressional “[A]s After 1978 amend- times. Id. ments, which contracts are records law under its which established the data-disclosure PSC, filing require- takings, put had with the and the attacked filed mechanisms rationally legitimate notice of manner in which Monsanto “on ment is related to any purpose public utility regulation, authorized to and disclose ‘a EPA was use applicant voluntary to it [a data turned over submission of data registration,” Monsanto “could not have had utility] exchange in for the economic advan- reasonable, expectation investment-backed [regulation] hardly can called a tages of ” keep N.S.P., that EPA would the data confidential taking.’ 502 N.W.2d at 247. While beyond prescribed in amended the limits parallel complete, not be BN Rail- this at statute itself.” U.S. at 104 S.Ct. adjust obligation bridges its across road’s Only congressional while earlier enact- drain, 2874. long-standing regu- this guaranteed explicitly to Monsan- ments “had imposes ac- latory pattern that the costs of confidentiality to ... an extensive measure public’s drainage commodating the need for use” would EPA’s disclosure exclusive itself, improvements on the can railroad taking. Id. Monsanto’s trade secrets effect a hardly taking public rea- become a when the at sonably requires change.8 successfully challenge could Monsanto precedents recent do not reflect Other ability “the of the Federal Government genre regulatory- shift in this significant marketing regulate pesti- and use Transp. analyses. See Penn Central cides,” [police-power] “such restric- because York, Co. v. New 438 U.S. in the burdens we all must bear tions are (Compre 57 L.Ed.2d 631 S.Ct. ‘ living and exchange advantage for “the preserve land program hensive historic ’” community.” doing a civilized business did prohibiting marks new construction (citations Id. at taking requiring compensation); not effect a omitted). case, drainage footnotes Keystone Bituminous Coal Ass’n v. DeBen century legisla- over a constitutional and edictis, 480 U.S. regulation of under the state tive railroads (1987) (Regulation under Penn L.Ed.2d 472 police power is one of the burdens that sylvania’s Bituminous Mine Subsidence doing in exchange must bear railroads Act 50% of Land Conservation civilized endur- business context. This kept in certain to be the coal beneath areas ing having rail- regulation, controlled the place support not con provide surface did any in- long, conduct for so defeats road’s private property without stitute a expectation trans- vestment-based that would just compensation in of Fifth and violation duty to ac- form the railroad’s established Amendments.). Key The 1987 Fourteenth improvements into a commodate effectively prece- weakens the stone decision taking. compensable Pennsylvania value of Coal Co. dential N.S.P., Mahon, 67 L.Ed. Similarly, employed we a landmark regulatory-taking analysis to ex- 322 sometimes cited as Monsanto also regulatory-taking doctrine. See claim its secrets modern amine NSP’s trade Users, Inc. unconstitutionally dis- Grand Forks-Traill Water being taken were (N.D.1987), appeal Hjelle, N.W.2d 344 long applicable utili- laws closure will have to agrees work or the railroad that it should do the BN Railroad work, accommodating its to these of drainage improvements, tracks no matter who does its laborers bear- and contests notwithstanding the fact the laborers did noth- ing the costs: ing on the site. requirement that the do the work This Brief, 8,p. (part). The rea- Railroad’s n. 3 Work reasonable and understandable. is both work of the railroad to do sonable needs specialized and near railroad tracks is on and improvements, accommodating drainage dangerous. resource It is work that a water reasons, enough safety largely reason is alone skilled and most contractors are not district and police power to State to exercise its have equipped to handle. Railroads also on the rail- impose the costs of accommodation organized with labor that contracts road. perform rail- either the work on that railroads (cid:127) — n (citations at-, at 2316 S.Ct. dismissed 484 U.S. (1988) (no omitted). regulatory taking duty in this ease L.Ed.2d 969 Railroad’s move, municipal “adjudicative de- utility arises not from a where statutes condition,” rather from an ex- expense, water cision to but its own lines installed press legislated duty under a within a fixed distance of the center line of a police power constitutional reservation highway, although highway not within the corporation. 61-16.1-42 sub- over right-of-way, later when the stantially legitimate widened). advances a state interest deny and does not Nor the most recent decisions of the do economically viable use of its track. change the United States We conclude that NDCC 61-16.1-42 con- analysis legislated police- constitutional stitutionally places upon BN Railroad the power regulation. See Nollan v. California continuing responsibility ac- for the costs of Comm’n, 825, Coastal commodating necessary drainage its track (1987) (agency 97 L.Ed.2d 677 could Therefore, improvements. we affirm. not, paying compensation, condition grant permission larger home rebuild NEUMANN, JJ., LEVINE and concur. lot beachfront owner’s transfer WALLE, Justice, VANDE concur- Chief public of an easement lateral access ring in result. beaches); across beach between two — U.S.-, Tigard, Dolan v. recognize I that Justice Sandstrom’s dis- (approv L.Ed.2d 304 prescient, sent but it is unclear to me ing floodplain zoning as a condition of an what measure the trial court would use to adjacent non-floodplain building permit for and, determine if costs are to be allocated owner, rejecting an individual but conditions specifically, more how the allocations of those requiring greenway dedication of the zoned vrould be made. drainage system, use for a storm analogize special If we were to assess- adjacent strip and dedication of an 15-foot improvements, ments for such as cities as pedestrian/bicycle pathway, as unconstitu 40-23-07, NDCC, set forth section with tional without individualized determinations placed procedure the construction on that relationship of the reasonable dedica decisions, through many duty court legitimate public purposes tions to the However, might the trial court be clearer. I conges flood control and reduction of traffic agree proper analogy. do not

tion). explained: Dolan special analogy assessment would subsume 61-16.1-42, NDCC, section in that the rail- regulation A land use does not effect a enlarging road would contend that the “substantially legiti- if it advance[s] prop- channel would not benefit the railroad “den[y] mate state interests” and does not erty and could result a determination of no economically an owner viable use his payment by benefit to the railroad and no land.” contrary majority’s to the construc- regulations The sort of land use discussed 61-16.1^42, NDCC, tion of section a con- cited, however, just cases differ agree. I struction with which particulars present two relevant from the There is no doubt that North Dakota has First, they essentially legis- case. involved historically separate considered railroads classifying lative determinations entire ar- See, apart ordinary corporations. e.g., city, city eas of the whereas here the made XII, 11-14, Article N.D. Const. See also adjudicative peti- decision to condition Const, XIII, 1(2), [compact Article application building permit tioner’s for a providing with United States for distribution Second, parcel. on an individual the condi- gross earnings of taxes on railroad between imposed simply tions were not a limitation Dakota], North Dakota and South petitioner might on the use make of her parcel, requirement separate but a that she The reason for of rail- treatment portions city. special develop- deed roads is their status in the progeny, that under and its Railroads were instru- vinced Walters ment of our State. statute, integral populating applied North of this mental if not this to the facts case, to set- significance constitutionality. Because of Dakota. is of doubtful State, some railroads were tlement of ma- I concur in the result reached extending given grants Congress for land opinion. jority Dakota, through as well rail lines North their states, as and for the benefits other western Justice, SANDSTROM, dissenting. resulting Many of the from extension. I Because believe modern constitutional many problems of the our State benefits and requires jurisprudence the trial court to de- today, demographically, are due faces at least statutory termine whether the allocation of thereof, rail- foresight or lack of the the percent of the cost to BN Railroad was roads. fair and reasonable under all of the circum- reasonable, considering In what is fair and stances, respectfully I dissent. I suggest a factor for consideration would be agree majority the land I with the that N.D.C.C. whether or not railroad received solely places upon the railroad grants Congress Dakota 61-16.1-42 North responsibility company payment the railroads in North Dakota extend or build what, building maintaining bridges and any, if the costs of benefits the railroads a drain a rail currently providing by to the the and culverts where intersects area served prevailing This was the attitude at the the road. enlargement of channel. predecessor time its statute was enacted However, there unless is clear direction the late 1800s. One author has noted Supreme States Court as to from the United analogous grade crossing situation railroad Nashville, meant its what is statement that it had “been almost the universal cases Walters, L. C. & St. 294 U.S. charge grade separa the costs of rule to the (1935) 486, 79 L.Ed. 949 about “arbi- Sax, Takings J. tion to the railroad.” costs, trary imposition” and unreasonable Power, the Police Yale L.J. Walters, (footnote omitted). Annot., See also Consti are to be in deter- what factors considered compel company power tutional railroad mining of costs to the whether allocation highway crossing to relocate or reconstruct is, dissent, as stated in “fair and railroad thereof, expense or contribute circumstances,” all of I reasonable under 109 A.L.R. will adhere result reached apparent majority. It is not to me that Winston-Salem v. Southern progeny rely, at least Walters and its which 37, 47 Railway 248 N.C. 105 S.E.2d requiring part, on the unfairness of the North Carolina improve highway for the benefit railroad policy govern- explained the historical behind railroad, trucks, competition for the requiring railroads to shoul- mental entities applies competition in this case where is not improvements expense grade der the a factor. crossings: majority’s days railroading,

Finally, “[Djuring the earlier result retains NDCC, 61-16.1-42, development present of our of section before construction systems agrees solely upon improved “places and Federal which the dissent State company responsibility highways, operated when vehicular traffic building costs of main- short distance limits and served payment of the within compa- important a drain feeders the railroad taining culverts where nies, substantially I if a railroads recognize a railroad.” shared intersects general in the benefits of susceptible of more than one con- with the statute is facilities, struction, crossing in that improved that would make it of doubtful one not, up constitutionality improved speed facilities and another that would tended feeders adopt sustains movement of vehicular traffic as we will the construction which Moreover, practically constitutionality. E.g., Graff, rails. since its Little (N.D.1993). But, freight passenger I am not con- all common carrier N.W.2d 55 “ rail, way, a natural water traffic moved the costs of these there is ‘[W]here highway already exists and is where crossing improvements, under sanction of company crossed a railroad under its regulatory agencies, were built license to build a on, passed the rate structures and were any specific grant by legisla- shipping public, first to the and then to the authority highway or tive to obstruct the products moving ultimate consumers way, company water the railroad is bound by rail. And since these built-in costs keep crossing, at to make and its being passed susceptible were on to the expense, in meet all such condition shall effectively, im- ultimate consumers so requirements the reasonable position upon companies changed as the conditions and increased making crossing financial burdens of im- ” may use demand.’ provements comported entirely with basic fairness, Grimwood, 587, principles of and were conceived 200 at 26 at 347 U.S. S.Ct. Q. impose upon the rail- (quoting Chicago, People no undue burdens B. & R. v. ex Co. Grimwood, 103, 219, companies.” rel. 212 Ill. 72 N.E. 223 (1904)). Sewerage Chicago, Metro. See also Dist. v. Shore, Although Grafton, Lake and Grim Co., M., 387, P. P. St. & R. 69 Wis.2d 230 overruled, explicitly wood have not been (1975); 651, Comment, N.W.2d 662 Constitu- precedential by their value has been limited tionality upon Assessment Railroad for developments more recent in area of Interstate, Underpass High- on Federal-Aid taking jurisprudence. 1259, way, 44 Yale L.J. 1260-1261 suggested Commentators have the “Su doubts, however, I have serious about the preme ‘taking’ Court’s decisions issues constitutionality of the statute as construed may properly ‘crazy quilt be viewed as a majority. by the Nowak, pattern’ 2 rulings.” Rotunda & Treatise on Constihitional Law: Substance principally The District relies on three de Procedure, 15.12(a), p. and 2nd at 490 argument support cisions to that no com- (1992) Dunham, (quoting Griggs Alleghen v. pensable taking by construing occur would ny County Perspective: Thirty Years of require N.D.C.C. 61-16.1-42 to BN Rail Law, Supreme Expropriation Court 1962 road to the total cost for the and 63). 63, Sup.Ct.Rev. Because of the various Paul, v. St. M. & of Grafton culverts — arise, taking a contexts which issue 313, (1907); Ry.M. 16 113 N.W. 598 resolving responsibility payment cases Michigan Clough, Lake Shore & S.R. Co. v. changes structural where railroads intersect 375, 144, 242 61 U.S. 37 S.Ct. L.Ed. 374 roads, highways or watercourses have (1917); Q. Chicago, B. & R. v. Illi Co. separate category formed a of their own. Grimwood, nois ex rel. 200 U.S. 26 S.Ct. Power, Sax, Takings See J. and the Police 74 341, 50 L.Ed. 596 discussed in —each Yale 70 L.J. majority opinion. clearly These cases Shore, Grimwood, proposition governmental Grafton, stand for the Lake requiring Supreme action a railroad to make structural which relied on Court’s decision Q. changes Ry. Chicago, where its lines intersect a water in C.B. & Co. v. (1897), public highway merely 41

course or inciden L.Ed. 979 were decid 1917, 1906, police powers respectively. tal to the of the state and ed in Q. compensable taking. Ry. Chicago never constitutes a The Grimwood and C.B. & Co. v. Grimwood, succinctly by law is summarized were authored Justice Harlan and these cases, Shore, Supreme rights along clearly where the likened the with Lake Court illus rights “taking the creek trate Justice Harlan’s view that dif and, public highway, qualitatively regulation in a and relied on fered therefore, regulation several earlier state and federal court deci mere use never necessi addressing company’s duty compensation by sions a railroad tated the state.” Rotunda Nowak, public high p. when a railroad track crosses a & at But 488. as evidenced way. Supreme landmark 1922 decision in Court 414-15, Mahon, ably. at 55 S.Ct. at Walters U.S. U.S. Pennsylvania Coal Co. revolutionary stressed the Justice Court 67 L.Ed. 322 years brought Holmes, changes in recent about leading exponent of broader “fairness,” motor compensability widespread introduction of vehicles based test seriously rail traffic and “the distinction between' which decreased viewed degree,” regula- competition “if regulation through one of increased revenues extreme, it became freight passenger tion reached a certain traffic. The both actually though property was tak- ‘taking’, no “in ruled the state court had erred Court Nowak, sense.” Rotunda & en in a literal facts refusing to consider whether the relied p. arbitrary railway upon established as imposition upon it of and unreasonable the Court’s view of This shift underpass.” one-half the cost of the Walters category is illustrated in the issues at 494. The said the Nashville, grade crossing eases jus- will “promotion convenience Walters, L. C. & St. railroad, any than of tify requiring of a more (1935). Walters, 79 L.Ed. 949 others, money, expenditure unless highway commis- statute authorized state duty provide can be shown that a sion, crossed a whenever it,” particular convenience rests separation grades particular singled are out “when individuals if in the action was its discretion advancing to bear the cost and, travelers, protection convenience, imposition must bear some any discretion conferring on the commission the evils to be eradi- reasonable relation to proportion of the cost to be borne as to the advantages to be secured.” cated or railroad, required railroad to by the 427-28, 429, at at 55 S.Ct. Walters every case. of the total cost Un- one-half statute, ordered the the commission appor- der court had held the statute The state underpass sepa- to construct an tioning one-half of the cost to proposed state grades rate where Supreme Court did not valid on its face. The unconstitutional, track and to bear one-half of would cross its but sent the rule the statute dispute the The railroad did not the cost. court to determine case back to the state the stat- project, but asserted need statutory per- allocation of 50 whether the cost, requirement it bear one-half of the arbitrary ute’s railroad was of the cost to the cent circumstances, arbitrary was “so under the circumstances. unreasonable under the deprive it of 431-32, 433-34, and unreasonable as to at Walters Walters, process of law....” without due at 487. U.S. Walters, change in by As reflected began by noting “in Supreme Court respon The judicial the railroad’s attitude toward elsewhere, Tennessee, long the rule has as partly attributable to sibility payment is that, may, ordinarily, been settled practical consideration of increased com police power, impose a rail- under its transportation. petition from other forms grade eliminating a the whole cost of early days railroading road discussing the After thereof, as it deems crossing, or such carrier during practically which all common omitted). (footnote rail, appropriate.” Walters by freight passenger traffic moved watercourse deci- cited its earlier v. South the court in Winston-Salem com- and Lake Shore as sions Grimivood Railway 105 S.E.2d 248 N.C. ern authority proposition. for this parable explained: 47-48 changed- “But have conditions valid as further noted a statute The Court ordinary competitive condi- may invalid as to “Under of facts be to one set the rails and another, may prevailing now between enacted tions a statute valid when where, here, the rail- transport as change conditions to motor invalid become no direct benefit company derives police power applied, it is which improvement, proposed crossing from the limitation that it subject to the constitutional company of the costs imposition on the arbitrarily or unreason- may not be exerted ordinarily justi- improvements were instituted project may “[T]he be subdivisions to meet local the State or its theory that the degree fied to on the safety transportation and further needs in the rate structure costs will be absorbed convenience, necessary by the made public. passed This on to rapid growth of the communities. In such rates, competi- rail like other is so because circumstances, consistently this Court has structures, subject price now a tive police pow- held that in the exercise of the law of diminish- real sense to the economic er, may improvements cost such prevailing ing returns. And reason of There is allocated all to the railroads.... in a conditions under which the rails are proper that such allocation of limitation losing competitive fight for business with fair and reasonable. Nash- costs must be transportation, other modes of ville, Walters, L. C. & St. crossing improvements not be built 405, 415, 486, 488, 79 L.Ed. passed on into the rate structures and This was the and the cases there cited. effectively shipping public in for- applied by It standard the Commission. Besides, assuming ar- mer times. power by arbitrary not an exercise of gnendo improve- the costs of these to refuse to allocate costs the Commission might ments still in some instances be the basis of benefits alone. The rail- on in railroad rate structures and absorbed in the streets not as a road tracks are consumers, passed ultimate even on to the right by permission from the matter of but so, there would be an element of basic presence or its subdivisions. The State where, here, process unfairness such creates the bur- these tracks the streets company no stands to receive direct constructing grade separations in den of project, from the since the costs benefit public safety and conve- the interest of goods would fall on consumers of prob- Having brought nience. about the rail, passengers moving in exonera- lem, position are in no railroads of the volume of commodities and tion vast complain because their share in the cost of passengers moving by motor and other alleviating solely it is not based on the transportation.” competitive modes of special accruing benefits to them from the improvements.” Atchison, in T. Walters was reaffirmed & Atchison, 352-53, Commission, 74 at 96 346 U.S. S.Ct. 346 S.F. Co. v. Public Util. omitted). (emphasis original; in citations 74 98 L.Ed. 51 In U.S. Atchison, the state utilities commis- cases,1 category of Walters orders, considering all sion entered after progeny “high and its have been viewed as railroads, given by facts and evidence lighting evolutionary by both courts shift requiring enlarge them to either or construct away appli legislatures from mechanical underpasses grade crossings and allocat- cation” of the Court’s earlier decisions. ing percent project 50 of the cost of each City Railway Company v. Mor Southern of appealed, argu- (6th ristown, Cir.1971), the railroads. The railroads 448 F.2d 290 ing denied, the costs should be allocated on the basis cert. 30 U.S. alone, of benefits and since the railroads L.Ed.2d 792 Walters and Atchison benefits, they would receive little or no grade crossing rather than water were cases Nevertheless, should be a small course cases. because the Su nothing grade crossing or at all. The Court preme costs Court relied on cases Grimwood, discretionary support affirmed the commission’s allo- in its decision authority percent cation of 50 of the costs to the rail- cited Grimwood and Lake Shore as road, liability reasoning: for the rule of railroad that it preservation recently majority city’s cited held the landmark 1. Atchison and Walters were most by Supreme examples the United Court as placed States ordinance which certain restrictions on taking challenges by majority minority of opinions designated property the use of did not constitute City Transp. in Penn Central Co. v. require a exercise of the of otherwise York, 104, 126, 148, 98 S.Ct. New 438 U.S. power. eminent domain 2660, 2671, (1978), where the 57 L.Ed.2d 631 Walters, legal in I argue altered discern no basis does not “Southern that the cost distinguishing types between the according two should be allocated to benefit analyzing taking challenge. argued Atchison..., cases in Wal- alone as was in but present proper ters and Atchison frame- there should be several consider- analysis ations, benefit, equity, work for this case. degree danger Southern, by caused generally, and what is comport These cases with more recent de circumstances, comparable consid- cisions of this Court which have refused to ered to be reasonable gov- courts and mechanically adhere to “the rule of noncom- agencies. ernmental It is clear from At- pensation normally applicable police-power chison, proper these are consider- Forks, regulations.” Buegel City v. Grand ations. The elements of reasonableness (N.D.1991) (noting N.W.2d ex and fairness in the allocation costs ceptions compensation). to rule of no See addition to the reasonableness of the re- City Fargo, also Minch v. 297 N.W.2d quirement installing signalling de- (N.D.1980) (“Distinguishing between use vice itself must be considered the court. police power compensable and a dam aging may easy certain cases.... inevitably extent of the

[t]he owner’s loss is “We do not that municipality hold or a attempt identify factor an act power state does not have full function.”). damaging police either a or a company to bear all the cost for a They comport device, also with the grade crossing safety recent reemer nor that the gence by the United States Gainesville ordinance is unconstitutional “ principle strong public per ‘[a] desire to se because it is an unreasonable and improve arbitrary [will not] condition war exercise of Gaines- achieving police power, rant the desire cut ville of its nor that benefit shorter way than the paying constitutional should be sole measure of the alloca- ” — change.’ City Tigard, Dolan v. tion of cost. We find here that the district -,-, 2309, 2322, finding L.Ed.2d court did not make a as to the (1994) (quoting Pennsylvania Coal Co. reasonableness of the allocation Mahon, 393, 416, 158, 160, installing maintaining 260 U.S. signal de- (1922)). case, particular 67 L.Ed. 322 See also Nollan vices as to this a determi- Commission, might might Coastal nation which not make the California 825, 841-842, 3141, 3151, application 97 of the ordinance unconstitution- (1987) (“California Therefore, 677 L.Ed.2d is free to al. we conclude that we must ‘comprehensive program,’ advance its if it remand the case to the district court for a wishes, by using power of eminent domain determination as to the reasonableness un- ...; ‘public purpose,’ circumstances, for this but if it wants der all of the of the alloca- an property, percent easement across the Nollans’ tion of one hundred of the cost to it.”). pay Railway.” must Southern (emphasis original). Gainesville at 591 The of decision the court Gaines of Morristown; Atchison, See also T. & S.F. Railway Company, ville v. Southern 423 Commission, Ry. Co. v. Public Utilities 190 (5th Cir.1970), particularly F.2d 588 is in (1976); Colo. 547 P.2d 236 Southern Gainesville, structive. ordinance en Knoxville, Railway Company City city required acted of Tenn. S.W.2d cert. entirely maintain install and its own ex denied, 396 U.S. pense signaling automatic devices where its L.Ed.2d 494 city main line intersected street. The trial ease, requirement installing dispute court had found the In this there is no modifica- reasonable, bridges the device was but did not con tions to the drain and to the necessary. sider the reasonableness the allocation culverts are reasonable and responsibility percent dispute the railroad of for 100 is over who must bear the re- discussing sponsibility payment of the cost. After Walters and of the costs to con- Atchison, the court said: struct and culverts. The trial § governmental

court ruled N.D.C.C. 61-16.1-42 to be reasonable courts cost, percent Railroad to agencies. See Gainesville determining further whether Instead, majority summarily dismisses statutory percent of 100 cost allocation Atchison, in a footnote Walters and most was fair and reasonable un- BN Railroad authority category line of relevant this der all of the circumstances. Absent cases; taking relies cases are finding, impossible it is determine whether way analogous in no to the factual situation requiring BN Railroad to absorb the total us; directly sup- and reaches a result before I, cost would violate the Art. which, only by antiquated ported cases since Const., prohibition damaging 1935, can at best described as private property just “derelict[s] use without thereby compensation, rendering in the stream of the law.” North Dakota N.D.C.C. applied Pharmacy 61-16.1-42 unconstitutional as Snyder’s Drug State Board Stores, Inc., this case. 414, 38 L.Ed.2d 379

I trial would reverse remand finding, parties court for after the respectfully I dissent. present question, allowed to evidence on the percent allocating whether of the cost to

BN Railroad is fair and all reasonable under I the circumstances. would direct the trial factors, including

court consider several benefit, equity, degree danger problem generally, caused and what circumstances, comparable considered

Case Details

Case Name: Southeast Cass Water Resource District v. Burlington Northern Railroad

Court Name: North Dakota Supreme Court

Date Published: Feb 8, 1995

Citation: 527 N.W.2d 884

Docket Number: Civ. 940106

Court Abbreviation: N.D.