Boehm v. Backes

493 N.W.2d 671, 1992 N.D. LEXIS 251, 1992 WL 365138
CourtNorth Dakota Supreme Court
DecidedDecember 14, 1992
DocketCiv. 920053
StatusPublished
Cited by7 cases

This text of 493 N.W.2d 671 (Boehm v. Backes) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boehm v. Backes, 493 N.W.2d 671, 1992 N.D. LEXIS 251, 1992 WL 365138 (N.D. 1992).

Opinion

MESCHKE, Justice.

Anton and Todd Boehm appeal from a judgment dismissing their inverse condemnation claim against the North Dakota State Highway Department. The trial court ruled that the Department’s construction of an overpass that converted the street in front of the Boehms’ property into a cul-de-sac by closing off direct access to their business from the nearby highway was not a taking. We reverse and remand.

Since 1984, the Boehms have operated a 24-hour towing and auto repair business in the 1200 block fronting First Street Southwest in Mandan, North Dakota. In 1985, they moved the business to the building and lot adjacent to its original site. The following year, Anton Boehm and the owner of the new property orally agreed that Boehm would purchase the property for $30,000. Because Boehm was unable to make the $4,000 down payment, the prepared contract for deed was never signed. Instead, Boehm informally agreed with the owner to make $350 monthly payments on the purchase price. This arrangement was formalized in February 1989 when the owner executed an option to Anton Boehm to purchase the property for the balance of the price due.

On August 8,1989, the Boehms exercised the option, paid the balance due, and obtained the deed to the property. About the same time, the Boehms learned that the Department planned to construct a new overpass to replace the nearby highway viaduct. In April 1990, access to their business was first affected by a detour sign to aid construction. Next, the Boehms sued the Department for a taking of their property, claiming that the closing of the entry end of their street by the Department’s construction of the overpass deprived their business of direct access to the highway.

Finally, on May 15, 1991, the intersection of First Street Southwest was completely closed to direct traffic to and from the highway into the block where the Boehms’ business is located. The street in front of Boehms’ business became a cul-de-sac with its only access to and from the highway in the opposite direction via a circuitous route through a residential neighborhood.

The trial court bifurcated trial of the questions of taking and damages. After a trial without a jury on the taking question, the trial court concluded that the Boehms’ “actual purchase of the property in 1989 was made with full knowledge that access would be limited upon construction of the overpass.” The trial court also ruled that the Boehms “suffered no monetary loss or income loss attributable to the present access when compared to the previous access," that the damage they “have suffered to their access is a damage shared by the general public,” and that their circuitous access was “not unreasonable.” The court dismissed the action. The Boehms appealed.

The Boehms claim a compensable interest in the property when the taking occurred on May 15, 1991, arguing that their foreknowledge of the project or of its potential effect on their access is irrelevant. They argue that the circuitry of travel, loss of traffic, and loss of business that resulted from the closure of direct access proves a taking as a matter of law.

*673 Relying on the factual finding that the Boehms’ “actual purchase of the property in 1989 was made with full knowledge that access would be limited upon construction of the overpass,” the Department responds that this forecloses the Boehms’ claim for a taking. The Department relies on a statement in Guerard v. State, 220 N.W.2d 525, 528 (N.D.1974), that a property owner “may be foreclosed from recovery if his damage is of a kind sustained by the public generally (even though it may be greater in degree) or of a kind contemplated by the parties at the time of the dedication of the street....” (Emphasis by the Department). But there is no finding that any diminution in value of this tract was contemplated or could have been reasonably anticipated at the time of the street’s original dedication. See Guerard at 528. If a landowner is damaged by a public improvement to a street that could not have been reasonably anticipated when the street was dedicated, the landowner is entitled to compensation. Filler v. City of Minot, 281 N.W.2d 237, 241-42 (N.D.1979); see also King v. Stark County, 67 N.D. 260, 271 N.W. 771, 775 (1937). Because the Department’s project was planned long after the original dedication of this street, and well after the Boehms located their business there, the Department’s reliance upon this statement in Guerard is misplaced.

The irrelevance of knowledge of the expected improvement is confirmed by precedents elsewhere. Department of Transp. v. Newmark, 34 Ill.App.3d 811, 341 N.E.2d 133, 136 (1975) (The admission of evidence and counsel’s arguments on the questions of the owner’s “ ‘prior knowledge’, other property holdings, and business acumen, were improper because they were totally irrelevant....”); State ex rel. Herman v. Schaffer, 110 Ariz. 91, 515 P.2d 593, 600 (1973); Babinec v. State, 512 P.2d 563, 572 (Alaska 1973) (Knowledge by the owner that a public improvement is proposed that will take part of his property does not prevent recovery). In this case, the Boehms’ knowledge of the impending construction of the overpass when they completed purchase of the property was irrelevant to their right to just compensation for a later taking.

If the Boehms owned the property on May 15, 1991, the date of the permanent closure of the street intersection for direct access to their business property from the highway, they held a compensable interest if that event was a taking. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 319, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987) (“[T]he valuation of property which has been taken must be calculated as of the time of the taking, and ... depreciation in value of the property by reason of preliminary activity is not chargeable to the government.”) Unless the Boehms’ access was completely cut off for a significant period by the temporary detour during construction, there is no right to compensation for temporary inconvenience. Filler, 281 N.W.2d at 244. The Boehms completed purchase of the property by warranty deed on August 8, 1989, nearly two years before the permanent closure. Therefore, before their direct physical access was completely cut off, the Boehms held a compensable interest.

“Private property shall not be taken or damaged for public use without just compensation ... for the owner.” N.D. Const, art. I, § 16; NDCC 32-15-01(2). Private property may be damaged by a public improvement “though no part thereof is taken.” NDCC 32-15-22(3); King v. Stark County, 271 N.W. 771; Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Aasmundstad v. State
2008 ND 206 (North Dakota Supreme Court, 2009)
Hardin v. South Carolina Department of Transportation
641 S.E.2d 437 (Supreme Court of South Carolina, 2007)
Gissel v. Kenmare Township
512 N.W.2d 470 (North Dakota Supreme Court, 1994)
Matter of Guardianship of Braaten
502 N.W.2d 512 (North Dakota Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
493 N.W.2d 671, 1992 N.D. LEXIS 251, 1992 WL 365138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boehm-v-backes-nd-1992.