*1 SQUARE ELECTRIC COOPERA BUTTE
TIVE, Appellant, Plaintiff HILKEN, Appel Defendant
E. Gene
lee, eight companion cases.* No. 9194.
Civ. Dakota.
Supreme Court of North 23, 1976.
June
Rеhearing July 1976. Denied * Sorch, al.; Spitzer, al.; Cooperative, Plaintiff and mund et Lawrence et Butte Electric Ap following Sorch; Miller, Appellant Lang; Douglas v. the Defendants A. et John Ernest Bender, at; pellees: Robert J. Donald T. et al. Small, al.; Dohn, al.; Ed W. et et Clarence *2 Baer,
Christensen Bismarck, & and Jos. Jr., Mandan, A. Vogel, Hilken, for E. Gene Bender, Donald T. Judy Bender and A. Rob- ert Dohn, J. Dohn and Mary Clarence W. Small, Small and Ellen C. Spitzer Edmund and Margaret Spitzer, defendants ap- and pellees; Jr., and Vogel, Mandan, Jos. A. Lang, Ernest defendant appellee; ap- pearances by Christensen, Carma A. Bis- Jr., Mandan; marck and Jos. A. Vogel, ar- gued by Jr., Vogel, Jos. A. Mandan. Schultz, Bismarck, Alfred C. for Law- Sorch, Sorch, rence Sorch and Gail and John appellees. defendants and Dr. Douglas Miller, and Mrs. A. pro se. Mr. and Mrs. Frank Murray, repre- not sented counsel.
ERICKSTAD, Chief Justice. appeal This is an judgment from a en- in Burleigh County tered District Court on 18, 1975, September denied to Cooperative Electric eminent domain for failure to establish a public use. Cooperative
In
Butte Electric
Dohn,
(N.D.1974),
trial court determined that “the selection of compatible greatest the route is with the private injury.” benefit and the least finding challenged That is not here. briefly reviewing After some cases cited parties relating in Dohn to public use, we ruling deferred on the issue: Vogel, Vogel, Brantner Kelly, Fargo, & Johnson, Devine, Lakota, Johnson & “Because we believe that a determina-
plaintiff appellant; argued premature John D. tion of this issue time, Kelly, Fargo. having a condemnation action commenced, it is better northwestern Minnesota. Each of been cooperatives repre- what constitutes one rural electric has delay a determination has been use until that issue on Minnkota’s board of directors sentative and considered extensively designated delegates briefed number of more conjunction meeting. court Minnkota’s by the trial attend annual itself, we shall action condemnation 58,000 There are billed customers on *3 this at to determine this issue attempt Minnkota’s lines with the number evenly Id., at 882. time.” divided between North Dakota and Minne- specifically us before relates The matter In addition A sota. to Class members conclusions The trial court’s Minnkota, to use. there are a number of of inves- as follows: of law read generation tor-owned utilities and other Butte, plaintiff, Square pur- cooperatives “1. That and transmission of power to its burden wholly surplus failed sustain chase from Minnkota on a has of Complaint use and the proving public designated short-term basis are and which in all dismissed plaintiff hereby members as Class C of Minnkota. Some of costs to prejudice, and with things, with supply electricity the Class C members to Nonetheless, corporate the defendants. Dakota. North mainly the 12 Square purpose to serve rural any association of “2. That cooperatives A pools energy back- electric who Class mem- power and Butte with re- support to enough direct bers. ups is not use; quirement early 1970’s,according In the to witnesses supply will not Square That Butte “3. Butte, Square on behalf of called combi- to citizens of North power
electrical increasing growths load projected nation Dakota; system on the Minnkota and the curtail- established plaintiff That the has “4. ment of traditional Rural Electrification of the ease- necessity for loans led Minnkota to Administration seek route and would as to the selected ments gen- new financing alternate sources of for do- of eminent be entitled erating plants. An investor-owned utility has question main on this Minnesota, serving part of northern includ- been established.” Duluth, ing looking was also for additional power. Minnesota Power and sources clarify to our discussion In order through negotiations Minnkota, with Light, let us findings judgment, of fact and the agreed background parties ultimately guarantee and the bonds and review the generation action. securities for construction of exchange trаnsmission in facilities was in North incorporated Butte Square system. delivery power of electrical to its 24, 1972, generate and May Dakota on after-acquired Because an clause co- rural electric electric transmit mortgage Minnkota’s with REA would $1,000 It was at operatives. capitalized financiers’ project’s have rendered in- per of 100 shares through $10 issuance junior terests REA’s interest Minnko- per- employs only Butte one Square share. property, required the creditors that a ta Lund, who manager son, general Lyle its entity Square new Butte —be formed to Power Co- employed Minnkota has been — operate project Butte facilities. nearly 25 operative years. to be Because of amount of sold distributor Minnkota is wholesale ownership project, to MP&L with electricity organized Minnesota would also project Minnkota have being Grand place of business principal exempt in loss of Minnkota’s status resulted Forks, A Dakota. There are 12 Class North certain 26 U.S.C. 501 for internal § under govern own and of Minnkota who members purposes. revenue Those include four rural 12 the distributor. was reasons, those Butte in- Dako- For in eastern North cooperatives electric in the resting 12 cooperatives corporated control eight ta rural electric 522 (3) application cooperatives requisites who are Class A how of those
rural electric subsequently disposition Minnkotа. It en- affects members of this case.
tered into a
sales and interconnection
I.
agreement with MP&L.
power line and structures.
district
not.
provides
reliability
tion
three
Burleigh County,
DC
tem is
Square Butte seeks easements for its not a
all
of the
maintain a 15% reserve
converted from DC to AC at Duluth that
(MAPP)
are presently
annual
luth.
verters
The
ed
ments that are 120 feet wide.
cluding
Young
will cross 225.8 miles of North
woodland,
from the
land,
MP&L must
must install
(Center
ter # 2
megawatt
Given this factual
Both Minnkota and MP&L are members
Because the line is
years
from AC
of the
additional
system
plant outages,
matters:
member MAPP. The MAPP
63.1 miles of
It is
defendants
direct current
plant
designed
system
and,
Butte
court’s
Mid-Continent
155.1 miles of
a
#
will
plant
which
such
load
system capacity
only
2)
lignite
does
and 5.5 miles
to DC at
a
build
because of the
usable
(Center
planned.
converter at Center # 2 and
near
is apparently
requirements.
before
(1)
demand.
ruling,
requires
adjacent
employees.
pool
herein
Duluth,
another converter at Du-
across whose
whether
fired
Center,
in
by existing
maintain
whether scheduled or
include
(DC)
pasture,
project
#
Center
1) background
the
not be
DC, Square
Area Power
capacity
nonirrigated
we must discuss
are landowners in
generating plant
Minnesota. Cen-
transmission line
its members to
to cover
one
the public
expense,
includes a
seeking
able
2.1 miles of
a degree
Basically,
Dakota,
instance in
consumers.
is convert-
other con-
related to
Milton R.
after it is
proрerty
Butte is
and the
wetland.
to serve
DC line
genera-
Dakota,
require
ease-
crop-
none
Pool
sys-
use
400
in-
it
ject to
first
without
not be taken or damaged
*4
ever, an
pertinent part that
owner.
the North
Domain
distributing the
(1896).
development and control of
proper
coal, heat,
oil,
refrigeration,
gas,
such
II.
the time
power, either
or
or for the fu-
said
use,
As to
requisites
public
of a
we
development and control
proper
ture
Supreme
find
decision of
Montana
thereof; and
generally descriptive:
Court
U *
[*]
[*]
“At the
outset, we recognize
that there
conflicting
authority
lines of
two
by delaying
In Dohn we intimated
concerning
requi-
other
jurisdictions
issue
use
until
determination
‘public
meaning
sites
use’ within the
of a
extensively briefed and
had been more
proceedings.
of eminent domain
One
merely
by the trial court
considered
view,
view, requires
the limited or narrow
purposes
of Section 32-
falling within
general
the actual use or
to use
N.D.C.C.,
15-02,
satisfy
is insufficient
proposed system by
as a
14, N.D.Const.,
requirement of Section
view,
whole. The other
called
broad
private
a use must be
before
view, essentially requires only a use con-
taken
eminent domain.
property can be
ferring
‘public advantage’
‘public
existence
non-existence of
Where the
Montana,
many
benefit’.
as with
west-
issue,
the determina
placed
states,
ern
has
to the broad view
adhered
tion, dependent
upon
as it is
the facts and
since
presumably
promote gener-
matter,
propеrly
circumstances
*5
development.
al economic
[Citations
judicial one.
omitted.]
implicit many
in
While this conclusion is
“Thus, in
use
public
Montana a
is one
issue,
public
that concern the
use
cases
advantage
confers some benefit or
in
two
met
at least
cases
squarely
has been
public.
public
to the
Such
use
is
jurisdictions.
other
Clark Gulf
from
public,
actual
the
confined to
use
but
Company,
(Fla.App.
Bokma,
which are not vague,
and a comment on
see 2A
indefinite or restric-
Nichols,
(3d
Id.,
7.2
ed.
tive.
Eminent Domain §
at 531. Re-
[Citations omitted.]”
1975).
sponding
argument
that since Missis-
sippi Power
subject
was not
to the control
project
involved in Bokma was
While
of the Alabama Public Service Commission
character,
of an intrastate
the reservoir
and since
Alabama Power held
a con-
with which the court was concerned Ad
tractual
to receive
transmitted
Co.,
ams v.
Water
138
Greenwich
Conn.
over
proposed line,
public
in Ala-
(1951),
83 A.2d
was of an interstate
bama
legal right
had no
benefits
Responding
character.
to the contention
line,
the Alabama court held that as the
proposed
since
chartered defendant
evidence in the ease established that elec-
greater
capacity
to construct
reservoir
tricity
would flow both
along
directions
necessary
supply
than
its Connecticut
the proposed line there was sufficient bene-
customers, then the reservoir was “for the
fit to the
in Alabama.
nonresidents,”
exclusive benefit of
the Con
in Graiapp by
court
its discussion of
Supreme
necticut
Court conceded “that no
requirement
in Alabama
state
permitted
exercise or authorize
benefit from
proposed
line implied that
the exercise of the
of eminent do
the power of eminent domain must benefit
except
main
for a
within its own
the public within the territorial confines of
Id.,
borders.
83 A.2d
[Citations omitted.]”
jurisdiction
delegating
of em-
concluded,
at 182. But the court
“If the
inent domain. Two
explicit-
decisions have
for a
use which
provide
ly
requirement.
discussed the
a substantial and direct
peo
benefit to the
ple
it,
of the state which authorizes
it is a
Wyoming Supreme
Court in a case
proper
the power
exercise of
of eminent
involving
diversion
appropriation
though
domain even
it also benefits the water in
Wyoming
irrigation
of land
Id.; accord,
residents
another state.”
in Colorado
a principle
detected
“to be de-
Ditch,
Grover Irr. & Land Co. v. Lovella
R.
authorities,
duced from all the
although dis-
Co.,
Wyo.
(1913);
& Irr.
P.
tinctly stated in but few” that
Annot.,
*6
(1934).
and
from an area where there is an excess of and that “the interest or welfare dependent ability generating at a particular upon time as by development affected compared growth with load or demand elec- in another state” is insufficient to (or area tricity uphold toward an where there is of exercise eminent domain. Id. tendency a be) deficiency there is to a of In Clark the Florida court determined generating compared capacity as with the the pleadings were to insufficient al- existing deficiency load in such area.” lege a public use and declared: Id., 529. “ 194 So.2d at ** * the sovereign’s power of The Alabama court declared that “it is a domain, whether it exercised principle fundamental in law of emi- another, or delegated to is limited to the private property may nent domain that not sphere of juris- its control and within the subjected be it be condemned unless is to to of diction the sovereign. A state’s use, recognized public affording a benefits exists within its territorial limits for quires each its fif- participants hold people within of the use and benefit generating percent capacity teen of its.total Thus, within one property state. emergency in short- reserve to meet for the sole be condemned cannot state requirements. term Since MP&L and public use in another serving a purpose of ' MAPP, both members of Minnkota are Conjecture might be made state. supply project will increase reserve Georgia generated current electrical participants. available to MAPP the benefit of flow into Florida for versa; however, vice citizens and Florida The trial court found associa- “[t]hat that a before us indicates pleading power pools tion of Butte with contemplat- way line one transmission enough sup- energy backups is not direct of Florida will which the citizens ed from port requirement public use.” Reserve of benefit.” Clark v. derive one iota power pool- supplies electricity through Company, supra, So.2d Gulf Power ing reliability designed to increase 371. capital power systems decrease expenditures company since each need not pleadings, a result of the insufficient As capacity equal install a to the size reserve was taking reversed and the order of largest generating of its unit. Id., at remanded. 372. cause project mega- adds cases, appears that the From these power sup- emergency watts of reserve and following present must a elements be ply what would otherwise available to exist in the where the state the North Dakota members of MAPP. This sought to be condemned lies. significant relating factor the ade- First, have either a must reliability power pool quacy re- guaranteed by regulatory control benefit be, may additionally, There certain serve. through public service commission [Bok- economic benefits to North Dakotans from [Gralapp]. or an actual benefit ma] backup power. # Center 2 as source of Second, although states also be other opinion. We discuss that later benefited, the state which must derive sub authorizes Stabilizing Effect DC Line on and direct benefit stantial [Greenwich Supply System something than an indirect Water], greater Square Butte does contend that the DC Third, Irrigation advantage ]. [Grover reliability line will increase the the elec- benefit, confined exclusive while not supply system trical North Dakota authorizing the use ly to the state phenomena reducing frequency Water], is nonetheless power [Greenwich frequency known as “low oscillations.” inextricably attached to the territorial lim frequency Whether or low oscillation because the state’s sover state *7 depends will ocсur on the combination of so and eignty is also constrained [Clark area, generation the of in the the amount Irrigation]. Grover strength of amount transmission and of case, dispose of we must deter- To that transmission. alleged by mine whether benefits Krueger the University Professor Jack provide, singly either Butte phe- explained of North Dakota further unison, a and direct benefit to substantial its effect as nomenon and follows: North Dakota. process “The oscillation is a—an actual displacement generation between the III. point on A power. the utilization electric Supplies Emergency Power Reserve good example, one that is used our alleges project first that its have University, classwork at the is to machines, emergency genera- reserve and two electrical one will increase tor, aby within North Dakota. one transmis- available is a load connected supplies Area Power Pool re- sion line. Mid-Continent brought up “And as the load is steam plant line, Minnkota’s back on based level, particular displace- the mechanical experience on his with of a plants MP&L’s rotating ment between the element of size, but he long similar not know did how comprises the motor that load versus lasted for the outage ultimate consum- position rotating element of er. length He testified that the of such machine, has a generator, that is the outage depend upon “would the availability angular displacement. you certain As in- systems; in other energy under certain displacement angular crease the load this put together we could circumstances back will increase still And above a further. minutes, in a few under others it take point angular displacement certain hours.” syn- becomes so bad that out of they fall Testimony at the trial aver- included an chronism. generator And the then stabilizing ment that with the effect of the speeds up, the motor down and slows gener- system DC line on AC the entire stop. eventually would come to a At that ating complex in the will Bismarck area point system . . . has col- operate higher output able to at a level lapsed.” currently deposi- than exists. During his manager planning system MP&L’s tes- tion, Krueger Professor indicated additional undamped that 68 low frequency tified os- generation on the system AC stabi- “with a North cillations were recorded in Dakota lizing line . . . DC would not contrib- during 1972. He indicated seven of instability ute to of the system, but without system collapses: “The those resulted in the line it would.” system in North Dakota transmission MP&L chose the DC line after studies line, breaking up, tripping the units off the indicated various 345 KV AC transmis- opening, breakers et cetera.” circuit sion totaling schemes more than 950 miles line Since the flow on DC of line would not be “adequate support action, by operator it can be controllable [generating] unit in North Dakota and exactly right phase “in rela- modulated output deliver its to the MP&L service area tionship frequency low oscilla- those seven-year period.” for the initial damp get them them to reduce tions manager system MP&L’s planning from magnitude disappear sys- concluded the DC line “will make the apparently The modulation would tem.” systems AC more reliable and increase the changed at Center as the current occur capability loading those transmission generation bypass the DC. The into lines that leave the generating complex system transmission the flow of AC AC area.” Bismarck “the will be introduced at eastern None of trial court’s findings of fact a return of system end so that [the] the effect of concern the DC line lowon energy unload the Butte will frequency oscillations. In his memorandum existing normally facilities that are trans- opinion, judge observed, the trial “There east.” ferring power from west to testimony regarding has been the stabiliza- effect, will be the disturbance moved tion AC lines within the State where the North Dakota to Minnesota Dakota this Court is not finds systems generating between the distances persuasive enough to supply public use for system the effective load center purposes.” condemnation the oscillation enough different so that *8 receiving the operations not hinder on 52(a), N.D.R.Civ.P., may Rule By we end. findings not set aside of fact in civil actions findings clearly unless such erroneous. specify to employee MP&L’s was unable that explained We standard in In re Estatе collapses in any system time or date of the Elmer, (N.D.1973): of N.W.2d 815 Dakota, although he was aware that finding system collapsed ‘clearly in 1972. “A Minnkota had erroneous’ the when, get although hours to there eight assumed that it took is some evidence to He amounts on a the noncumulative basis as it, reviewing court on fol- the support lows: left with a definite and entire evidence been a mistake has conviction that
firm fact mere
made. omitted.] [Citation might have court appellate had differently, we facts
viewed case, not trier of the does the initial
been to the lower court. us reverse
entitle [Ci- 820; accord, Id. at
tations omitted.]” Schumacher, 242 N.W.2d
Schumacher Blank, (N.D.1976); In re Estate of (N.D.1974)
asserting stabilize AC and transmission
existing generating
systems disputed, in North Dakota was not
it is that the trial court determined possible benefit, but stabilizing
that the effect is a
that such an influence is itself insuffi- exercising of justify
cient to we any domain. In case conclude clearly was
that the trial court erroneous effect giving some to influence. stabilizing
We think that the influence is give factor that must be considered with other Butte must MP&L five Square any its election to exercise years’ factors to determine whether there is notice of and, made, the elections options to Da- its once direct and substantial benefit North MP&L holds are irrevocable. kota. surplus inuring any
first refusal on Electricity Available Dakota to North option its Square as a result of to Butte
Consumers Reasonable Future exercise, “price which case the such be 75% of the overall surplus energy shall electricity Square availability during paid by average price MP&L hence, (and, Minnkota) is governed Butte immediately years preceding calendar three by a “Power & Interconnection Sales its Economy Energy or substitute . . . & Agreement between Minnesotа Power however, such overall aver- provided, Light Square Company and Butte Electric 2.4 price be less than times age shall 1,1974. We April Cooperative” dated energy at producing cost of such Cen- fuel quote from that contract: 2.” ter # Availability 3. Power “Section Square purchases Butte certain trust If Energy, (a) Square agrees Butte in the Bond Purchase and specified estates Duluth, at make available MP&L Agreement Participation and thereafter Minnesota, Net all of the HVDC terminal MP&L, if the semi- those assets to sells losses, less line Capability, percent lease rentals exceed 5.25 annual 3(b) be- is entitled under Section MP&L Butte, sum, on at specified then any be produced which can at time low MP&L, may years’ least five notice prior # 2 either to or after by Center change entitlement to MP&L’s exceeding its Completion Date without 15,000 capability entire net reduced KW. proper capability. reasonable op- “(b) entitlement If exercises MP&L’s tions, specified re- Capability, obligation entire Net to retain shall be the duced, option, capacity continues for remainder of Butte’s *9 provisions all other year agreement. term of the That obli- herein shall apply to ” * * * by agreement mutual gation can be altered such utilities. N.D.C.C. event, any Square Butte parties. Nor are cooperatives such subject to the options its to the extent that may reduce requirement obtaining a certificate of Square right MP&L restricts Butte’s public convenience and necessity before be- MP&L’s transmission facilities. ginning operation construction or plant of a system or extension thereof. Any power by Square retained Butte will See Sec- 49-03-01.5, tion reg- N.D.C.C. If sufficient by transferred DC line Duluth and ulatory powers PSC, were vested in the we Square by routed back to Butte MP&L’s precedent would have holding for right system. agreement transmission While the to such as a upon basis which contemplates that MP&L will have “sub- sustain the exercise of eminent domain. stantial excess bulk transmission capacity” Montana Company Bokma, See Power to facilitate the transfer and that MP&L 772-773, supra, Nichols, 457 P.2d at and 2A transfer, will “endeavor to facilitate” such (3d Eminent 1975). Domain 7.221 ed. § it is not intended the agreement “shall obligate MP&L to finance new or additional Square Butte asserts that REA has the grants transmission facilities.” MP&L authority compel coopera- each of the 12 Square Butte a to use such excess option tives “to exercise its assign all of capacity as “shall be from time to time rights obligations hereunder [to thereon, capacity available is not for the duration of Agree- Minnkota] supply needed to MP&L firm wheeling ment ‘fifteen party’ power agree- sales [the loads, as determined MP&L.” among Square Butte, Minnkota, ment REA, and each of the twelve cooperatives] 40,000 Subject grant to a of a KW trans- if the Administrator of REA shall so direct capacity mission Butte exercises writing anytime.” Considering that any options, priori- of its “MP&L will retain purpose of the provision merely ty for system use of its transmission protect REA mortgage money and the ad- customers, service to its and for carrying mission that REA is likely “not to [force existing agreements out terms exercising the options] against the interests power suppliers.” other of the majority,” we cannot hold spe- agrees engage not to in any provision cific alone to be sufficient to sus- activity business or other than Center # 2 tain the of eminent domain in North and its transmission facilities. Other sec- Dakota. agreement provide tions of the for consulta- Given this absence of regulatory 'authori- approval by tion with relating MP&L ty, we must determine from the record to additional and operating proce- facilities whether the trial court’s conclusion that dures at Center # 2. Square Butte will not supply pow- electrical jurisdiction of the North Dakota er to consumers in North Dakota is errone- Public Service Commission is limited as to ous. certain utilities statute: The trial following court made the find- “49-02-01.1. Jurisdiction of commis- ings of fact which upon bear sion limited as to certain utilities.—Noth- sales agreement: and interconnection ing in this chapter shall authorize the agreements into, “10. That entered commission to make order affecting provided MP&L will receive all rates, contracts, rendered, services ade- years, from this line for 7 commеncing quacy, facilities, or sufficiency of or the operational; when line becomes such regulations any public rules or utility 1985; projected date to be operated by owned and the state or any city, county, township, politi- or other “11. agreement That the afore also Butte, cal subdivision of the state any public provides allegedly utility operated herein, that is not profit, plaintiff but option taking up
529
watts,
Since Minnkota will
power
not more than 30%
receive
mega
but
from
120
2 only during operational
Center #
capability;
net
emer-
plant
gencies pursuant
joint
operating
also
agreement
the afore
“12. That
agreement or from the MAPP
sys-
reserve
Butte,
here-
Square
plaintiff
provides
1, 1985,
January
later,
tem until
it pro-
in,
plant
taking up
to 51%
option
an
poses to make
purchases
short-term
from
years
17
after line is
capability some
net
the pool
type
to use some
of short-operating
existence;
peaking capacity, and to use interconnec-
nec-
That Board action would be
“13.
power
tions with
sources in Manitoba.
individual member
essary in order for an
Cross-examination elicited an admission of
Square Butte to re-
Minn-Kota and
possibility
that an additional generating
power;
ceive
unit could be constructed at Center during
projection indicating
“14. That the
period
that
time.
power by
for
Minn-Kota and its
need
trial,
During
occurred in the
members
1977-78 assumes annual load
1975,
projеcted
autumn of
MP&L
its winter
growth
average
growth
based on
load
peak
megawatts. During
load at 762
supporting authority;”
without other
projected peak
MP&L’s
load will be 1505
of the fact
Defendants have made much
megawatts.
existing capacity
Its
was 855
eight
Minnkota’s
from
that of
directors
megawatts.
manager
system
MP&L’s
clearly
cooperatives
Minnesota
can
control
planning testified that the
industry
taconite
cooperatives.
Dakota
the four from North
largest single
is the
user of electrical ener-
power only
Square Butte can receive
Since
gy
system,
expansion
on MP&L’s
that its
through exercising
options by
its
its board
major
power
cause of increased
needs
(the
that
of directors
same board
directs
by the
system,
MP&L
and that residential
Minnkota),
arises that Min-
implication
and commercial loads on the
system
MP&L
prevent
will
nesotans on the board
increasing
relatively
were
small rate.
receiving any
power
Dakota from
anticipates
MP&L
it will have a
suspect,
#2. We
how-
produced at Center
plant
generating capacity
with a
of 500
ever,
system requires
the Minnkota
megawatts
on line
and it has asked
power
options
at the times the
additional
the Minnesota Environmental Quality
available,
economically
and if it is
become
capable
Council
a site
of supporting
advantageous
options,
to exercise those
megawatts
between 1800 and 3400
of gen-
be
advantages
then those needs and
will not
appears
eration.
It
thus
if MP&L’s
patriotism.
zealous
overshadowed
state
accurate,
projections
system
its
will be
trial court’s conclusion that
even with
power
Whether the
deficient
avail-
supply
pow-
Butte will not
electrical
able from Center # 2 and
from
addi-
correct
megawatt plant
er to citizens of North Dakota is
tional 500
in Minnesota.
Finding
on
of Fact #
not on
depends
During
Lyle
direct examination
Lund ex-
agreement.
power
#
and the
sales
plained
option
Butte took an
than
rather
a firm commitment
in case
Testimony at trial indicated that Minnko-
“totally
development
some
unheard of
generating capaci-
megawatts
ta had 366
which could reduce the cost of
ty
purchased power available to
other source” is
power
developed
some
projected
Minnkota
that dur-
consumers.
depression
case
severe
reduces de-
system
of 1977-78 its
would
ing the winter
power
Valley.
mand for
in the Red River
megawatt deficiency.
With no
have a
Asserting
that he believed the
would
system
additional
source
needed, he continued
megawatt deficien-
to have a 240
projected
“ * * *
mid-1980’s,
If we
not have
By the
Minnkota’s
did
cy by 1982.
and we had no other
supply approxi-
sources will
Butte deal
present
projected
way
go,
probably
we would
build a
mately one-half of Minnkota’s
plant and that would be a commitment.
needs.
use it. We would have
cooperаtives
would have to
associated
We
be able to
it, whether we used it or not.
pay
present
secure
based on
construction
*11
arrangement
preferable
Testimony
This is
costs.
trial also indicated
these rural electric con-
standpoint
stabilizing
that with the
influence of the
line,
sumers.”
hydroelectric
DC
or low-cost steam
generation
increased,
can be
replacing high-
that
apparently
trial court
concluded
er cost oil or diesel-fired units on the ex-
exaggerated
needs are
projected
Minnkota’s
state,
tremities of the
thereby lowering the
annual load
projection “assumes
since the
cost
consumers
the entire state.
au
supporting
without other
growth
the trier of
While it is true that
thority.”
Additionally, Center # will be available
required
accept
uncontradict-
facts is not
backup
power
as a
source of
if Center # 1
party,
of an interested
Waletz
ed evidence
should suffer certain operational emergen-
(N.D.1975),
Herdegen,
ko v.
Center
dismissed
mature,
options
complaint,
ter # 1 and that when its
Butte’s
reinstate the cause of
addition,
made in
action,
any
findings.
for assessment
dam-
and remand
appellant
failed to
ages.
directly
attack
are,
specific finding of fact and we
there
PAULSON, J., concurs.
fore, only justified
reviewing
gen
them
erally.
syllabus 1 of
See
Sorenson v. Ol
PEDERSON,
(concurring special-
Justice
son,
(N.D.1975).
At Territorial Court concluded written, being term greatest “public were our concern use” enlarged had received bolstering scope meaning; to the of the State’s econ- related the test was no The would been omy. public longer public, welfare have confined use but use by anything opinion for the welfare. assumed be benefited decided the opportunity would enhance to market that economic and other benefits energy. justified and excess our natural resources inhabitants the right of mining to facilitate the quirement eminent domain use. There is no law gold in Alaska. supporting the conclusion that indirect ben- support public efits do not use in this State. require additional cases comment to
Two
complexity
“pub
of the term
illustrate
Conclusion # 3 is in contradiction to the
Supreme
lic use.” The United
Court
States
facts.
It was
uncontradicted
the testi-
Parker,
Berman
348 U.S.
75 S.Ct.
that,
mony
within reasonable assurance in
(1954),
ques
The trial
conclusion # 2
business in such a manner as to
imposed
court’s
that the
requirement
equal rights
gen-
benefit would have
of individuals or the
enough”
support
“direct
the re-
eral well-being
to be
of the state.”
abundantly
authority
clear
We
It
must
assume
the Legislaturе
of eminent
granted
exercise the
was aware of the limitations in
14 of the
§
is limited
the Constitution to the
domain
Constitution,
North Dakota
which limits the
taking
public
for
use. The ref-
taking
of property
eminent domain to
use in
14 and 134 of the
erence
§§
those
it
instances where will serve a public
Dakota
obviously,
North
Constitution
use,
Chapter 32-15,
when it enacted
necessity,
must refer to
use to
out
Code,
Dakota Century
which sets forth how
inhabitants of the
of North Dako-
State
eminent domain
be
may
exercised and the
ta,
provision
otherwise this
would be inval-
purposes
it may
for which
be exercised.
id.
NDCC,
32-15-02(10),
Section
provides as
Co.,
In Adams v.
Water
Greenwich
follows:
(1951),
Conn.
“. . power by . all of Butte to grants the exer- government construed, cise the strictly power of to be eminent domain. The especially respect and this is special true concurring opinion goes further and domain, the of eminent which is reasons that the enumerated and itemized more peremptory harsh and its exer- (10) activities stated in subsection are de- any cise operation than other.” clared to public by specific be uses legisla- tive action and the as such landowner now If the of eminent domain is to be must assume the burden to establish that strictly grant construed when involves a the contrary With exists. subdivision, concept a we governmental it would nec- view, cannot agree. In Legislature our the essarily type grant follow that a similar merely provided power given public or that private corpo- to a those activities or itemized, enumerated, strictly must also be construed. or listed in ration subsec- “ (2) That the law control the use to exercising the basis be (10) may be tion made of property; the public a use provided eminent domain “ Legislature say (3) not did That the title so taken be would result. invested in person corporation these or were, it make activities as a
they nor did private property to be used and se, “may exer- con- but said be public per use private as property; trolled following public the uses.” cised in behalf “ (4) reap the permissible only public would be That the benefits taking Thus the possession is, public and use and that no to result. There the use were public except public.” one the exercise control however, question whether a further limi- language is additional underscored 7.22, authority, gives same § public use be to or requiring tation following public analysis concept of the city inhabitants of the for the benefit use: located property was county wherein which, public “A use definition of while If the of eminent and was taken. concise, particulars in all is consistent construed, strictly for which domain is to be judicial authority is, with the wеight of authority, a there conclusion is reliable accordingly, follows: as must be inhabitants benefit “It is a which public property use for was located taken wherein the land domain, may be by taken eminent “ precise question has must favored. This be (1) To the United enable States or a raised, question it is a which is not been but agencies state or one of its subdivisions ac- deserving legislative attention and functions, carry governmental on its required question tion. to be If this preserve and to safety, health and interpretation, judicial by resolved public comfort of whether or not should take into account the court must and public individual members strictly admonition that such taken, pro- make so the use of do- and limit construed taking vided the is made main, expand upon power. rather than such body; “ (2) To with some serve the ne- subject judi- use” is “public The term cessity or of life convenience which is and the courts have held interpretation cial required by as such and which equivalent “public is the that such term cannot be without readily furnished welfare.” “public benefit” or governmental power, aid of some wheth- Domain, 2A, 7.2[2], Eminent § Nichols on or not er is made states as follows: body, provided public may enjoy such which opinion follows this “Judicial right; service “ concept the narrow broad considers (3) particular special certain repudiated been and is no doctrine has cases, by ancient sanctioned custom or view. use’ longer prevailing ‘Public justified requirements of unusual local benefit’ it is not ‘public considered conditions, to enable individuals to culti- com- essential entire considered carry vate their on business land or in a portion even considerable munity or manner in it could not otherwise be *16 enjoy directly partici- or thereof should done, indirectly will their success en- in that it pate any improvement order welfare, hance the even if the public tak- use. This is true public a constitute individual ing by private is made proceeding the court is under whether public right no to service from has It concept. the broad concept narrow or him or of the taken.” enjoyment requirements, to that the as has been said in the may Whatever be embraced term use, embracing law the tak- public for a use” the various shades of its “public or in ing are as follows: of land use, benefit, meaning, the or welfare must “ (1) community it effect as a That be for inhabitants State [sic ] individual; and not to some oth- requirement from an minimum distinguished as 536 law, country they
er or where the eminent do- nor do public State meet the use con- private corpo- is by main exercised cept. (see Adams, supra), distinguished ration as The direct current transmission line from by exercise of such
from the
Center,
Dakota,
Duluth,
Minneso-
government.
federal
ta,
pertinent
does
meet
not
conditions
view,
public,
in our
The benefits to
law,
summarized
Nichols or
case
as
indirect,
remote,
incidental,
be
may not
above,
stated
cited in
majority opinion
speculative
satisfy
the constitutional
and mentioned later herein.
They
ap-
public
requirement.
must be
agree
We
with the majority opinion
parent and direct.
II,
through Part
particularly
the last
Gralapp Mississippi
Compa-
v.
Power
In
two paragraphs of Part II:
527,
368,
(1967),
194
ny, 280 Ala.
So.2d
cases,
“From these
it appears that the
Supreme
the Alabama
Court said:
following elements must be present for a
course, it is a
princi-
“Of
fundamental
public use to exist in the state where the
ple in the law
eminent domain that
property sought
be
condemned lies.
private property may
be
not
condemned
First,
public
must have
a right
either
subjected
it
to a recognized
unless
is to be
guaranteed
to benefit
by regulatory con
use,
public
affording
are
benefits which
trol through
public
service commission
vague,
indefinite or restrictive.”
or an actual benefit [Gralapp]2.
[Bokma]1
Second,
also
court
said:
although other
may
states
also be
benefited,
public
in the
right
.
.
state which
“.
to condemn in this
the taking
authorizes
must derive a
cannot
sub
case
be denied because
uses
stantial and direct benefit
would
promoted
another state
be
also.”
[Greenwich
Water]3, something greater
than
indi
ap-
quoted
Alabama court also
advantage
rect
Irrigation]4.
[Grover
decision,
proval
an earlier
Alabama
Third,
benefit,
while not con
follows:
exclusively
fined
to the state authorizing
equally
“It is
clear that this
is not
the use
Water],
[Greenwich
to be denied where
uses are
be
inextricably
nonetheless
attached to
granting
subserved in the state
condem-
the territorial
limits
state because
nation,
therewith,
because
connection
sovereignty
state’s
is also so con
public uses in
may
another state
be like-
strained
and Grover Irrigation]
[Clark5
promoted.
wise
While a state
take
will
dispose
case,
“To
of this
we must deter-
care
use this
for the benefit of
mine whether
alleged
benefits
people,
its own
will not refuse to exer-
provide,
either singly or in
purpose,
cise it for such
because the in-
unison, a substantial and direct
inci-
benefit to
neighboring
habitants of a
state
dentally partake
North Dakota.”
ex-
of the fruits of this
[Footnotes added.]
[Underscoring
ercise.”
ours.]
applying
foregoing
In
principles of
case,
law to
dissenting
in-
the facts
the instant
we
We are
because some
compelled
state
to reach a
receiving
opposite
habitants
another
conclusion
line,
opinion.
that of the majority
benefits from this transmission
but
We cannot
recognize
rather because the benefits
the inhabit-
the benefit
to the North
incidental,
will be
ants of this state
second- Dakota
direct
substantial.
requirements
ary,
view,
benefit,
and will not meet the
remote,
our
if any,
Bokma,
Power Co. v.
Ditch,
Montana
1.
Mont.
4. Grover
&
v.
Irr.
Land Co. Lovella
R. &
(1969).
Co.,
indirect, incidental, speculative, and Duluth, place Minnesota, “public use” takes from a sufficient not constitute does energy the domain. where would be filtered back of eminent the exercise westward. case, the Gralapp supra, Alabama the In Wyoming Supreme The Court in evidence established Grover that the
court observed
Ditch,
Irrigation
di-
Land
Lovell
flow in both
&
Co. v.
a
electricity would
the
that
Irrigation Co., Wyo. 204,131
sought
be con- Reservoir &
the lines
to
along
rections
(1913),
said,
P. 43
under
case
had
consideration a
It then
structed.
involving
appropriation of
the diversion and
would be no ben-
agree there
“We cannot
in Wyoming
irrigation
water
for the
land
of
the
in Alabama from
public
efits
court
that
in Colorado.
held
the bene-
The
power
this
line.”
and use of
construction
which
Wyoming
fits
would be available to
is, however,
there
be
that
It must
observed
were indirect and remote and were not
Gralapp
the
major
between
a
distinction
justify
pow-
the exercise of
sufficient to
under consideration.
and the case
case
er of eminent domain.
consideration, the transmis-
case under
majority opinion,
to
The cases cited in the
be converted
and will not
line is DC
sion
view,
Duluth,
an
support
opposite
Its
our
conclusion
Minnesota.
until it reaches
AC
by
majority.
inci-
that
use,
Dakota would be
than
reached
any,
if
in North
The
cоuld
than direct.
line
rather
dental
agree-
majority
The
concludes
“tapped” in North Dakota.
usefully
be
not
probability
ment evidences a reasonable
Gralapp
of the
have here
reverse
We
customers in North Dakota
that Minnkota’s
instance with
direct
case
from the
Butte
power
will receive
to Minnesota residents
primary benefit
project.
probability
A reasonable
benefits,
any,
to North Dakota
indirect
sufficient,
view,
be
in our
it must
a certain-
residents.
opinion
ty.
majority
also concludes
The.
Bokma,
Power Co.
In Montana
there
other incidental benefits in
are
(1969),
court
constructing an majority opinion concludes domain. provide electric which was line stating: single to a customer. service of the cumulative effect of “Because line, however, was available
transmission emergency in reserve and increase would to use who wish any other customer stabilizing supplies, of the effect of the Supreme Court held The Montana it. existing system, line AC DC on was use inas- acquisition options existence of the likelihood utility comрelled as the could much options that Minnkota exercise from member serve receive Butte after quoted approving- The court proposed line. power, the lower cost of (3d Domain from 2A Nichols on Eminent ly benefits, disagree we of certain incidental ed.) as follows: § 7.522[3] with the trial court’s conclusion that every long “As member has failed establish others, on right with all equal has an [Emphasis public use.” added.] terms, to the use equal in accord with the These conclusions per- every matters not that produced, it law earlier announced in the principles of thereby.” actually is not benefited son are not to opinion. options The mentioned case, by the inhabitants of North we have a DC line be exercised In the instant Dakota, bene- qualify do not as direct avail until the direct which would be no Dakota, AC, does the “likeli- fit to North nor changed had been current *18 option may which will exercise its filter back hood” Minnkota into North Dako- ta that the network in the any requirement part benefits eastern of the satisfy State. The benefits so would be and not incidental. obtained be inciden- direct tal, rather than direct. opinion Da- majority puts North position going in the to kota consumer This dissent does not imply Square (MAPP), Pool Area Power Midcontinent Butte may not pro- transmit the as energy members, and MP&L are Minnkota posed merely which but concludes that “Please, asking, may in hand and may with hat employ rely or upоn the energy.” our This is the domain, we have some of quasi-govern- function, Dakota coal has been mental picture acquire after North to necessary energy, in North Da- leases or easements accomplish converted into electric to this. kota, directly to Du- and then transmitted We would judgment affirm the luth, Minnesota, by a line. direct current If trial court. AC, objec- were the transmission lines great as the line tion would not be because VOGEL, (dissenting). Justice be transformers “tapped” could could fully agree I with the dissent of Justice energy be could be used in installed Sand, and a few my add remarks of own. Dakota, energy but is now no North as it The benefits to North Dakota claimed in to North Dakota until it can be available majority (and opinion admitted to be has been converted to AC at Duluth and insufficient individually to constitute back then as it filtered into trans- benefits) can catego- be divided into three Minnesota, systems may mission which first, “probability ries: that Minnkota energy bring back to North customers will receive direct and substan- majority opinion permits pi- Dakota. The 1985,” tial after as to I agree which rating North Dakota resources and land with Justice trial Sand court that a primarily persons for the benefit other mere option eight exercisable in or more than the inhabitants of the State North years aby majority board the of whom are (inhab- the public Dakota. The benefits to nonresidents of this State is an insufficient Dakota, casе) itants North granting quasi-govern- basis for the satisfy public purpose the constitutional mental of eminent domain to a cor- with the should concomitant transmis- shell; second, porate the claimed stabilizing line, energy on completed sion of effect of the DC line on the system AC apparent and should be rather than obscure Dakota; and, third, North the “incidental upon dependent contingency. a future such benefits” as assumed lower costs designedly Butte was created cheaper distant future due to construction corporation purpose North Dakota for the costs, present-day and emergency backup DC, building energy, an electrical trans- potential. Center, Dakota, line mission The “incidental benefits” can be dis- Duluth, Minnesota. Butte would missed as irrelevant problem before not control the which energy electrical us, which is whether the benefits line, particularly transmitted over the DC justify use of eminent domain. The Duluth, Minnesota, point after it reaches equally “incidental benefits” are applicable destination, where will be converted to all plant and transmission line construc- into AC. tion anywhere, since all lines are intercon-
We thus have a situation where the con- others, nected with so the construction of position is in demnor no assure any anywhere backup potential line adds pub- electrical transmission line will have a all lines to it is interconnected. Such lic use or benefit for or potential, alone, North Dakota standing is no reason for benefit, any, inhabitants. allowing the use of eminent domain. If the result North Dakota generating inhabitants mere capacity any- addition of energy come from the enough justify would electrical where were the use of
539
huge
faces a
increase in
domain,
would be
demand from the
judicial review
eminent
Minnesota,
industry
taconite
soon to
meaningless.
Butte
Square
come.
the indefinite
to
that comes closest
benefit
The one
1985,
(starting
earliest)
at the
future
sell
the use of
justifying
being
a
benefit
Minnkota, which has
power to
customers in
stabilizing
the claimed
eminent domain
is,
North Dakota. But
Butte itself
system
on the
lines
of the DC
effect
shell,
more than a
a manufac-
anything
will
appears that
there
Dakota.
It
electricity,
turer and wholesaler of
and not
damping effect of
from the
benefit
be some
supplier
to individual citizens.
heavily loaded
on
line on oscillations
the DC
Parker,
to Berman v.
348
long
over
distances.
Citations
U.S.
lines
transmission
AC
26,
98,
(1954),
27
benefit,
appar-
75 S.Ct.
99 L.Ed.
important,
while
Such
Auth.
Housing
Redevelop.
Minneapo-
lines are
important when AC
ently be less
Co.,
lis Met.
259 Minn.
situation them, laws, I view our
Under acquire right-of-way by
Butte welcome to
purchase, but not domain. *20 illusory, are so so
claimed benefits chimerical that
metaphysical, they and so
cannot, individually collectively, justify quasi-governmental
eminent domain.
I am authorized state that Justice joins foregoing in the dissent.
SAND Dakota,
STATE Plaintiff Appellee, DAVIES,
Kenneth Defendant Appellant. No.
Crim. 563. of North Dakota.
Supreme Court
July 1976.