Grand Forks-Traill Water Users, Inc. v. Hjelle

413 N.W.2d 344, 1987 N.D. LEXIS 415
CourtNorth Dakota Supreme Court
DecidedSeptember 29, 1987
DocketCiv. 870035
StatusPublished
Cited by26 cases

This text of 413 N.W.2d 344 (Grand Forks-Traill Water Users, Inc. v. Hjelle) 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
Grand Forks-Traill Water Users, Inc. v. Hjelle, 413 N.W.2d 344, 1987 N.D. LEXIS 415 (N.D. 1987).

Opinions

ERICKSTAD, Chief Justice.

Walter R. Hjelle, North Dakota State Highway Commissioner (Commissioner), appealed from a district court judgment awarding Grand Forks — Traill Water Users, Inc. (Traill), compensation, attorney fees, and costs in its action for damages for relocating a water line. We reverse.

In 1971 and 1972 Traill obtained easements from private landowners to construct a water line parallel to State Highway 18 near Hatton, North Dakota. The line was constructed outside the then-existing highway right of way, but within 100 feet of the centerline of the highway. Traill did not request the Commissioner’s consent for the location of the water line except where the line crossed under the highway. The Commissioner issued permits for those crossings.

In 1984 the highway department acquired additional right of way and construction easements, including land upon which Traill had its water line easements, for planned highway improvements along State Highway 18. Because the highway department removed several feet of the ground cover over the water line in making the highway improvements in 1985, Traill was required to relocate its water line to avoid frost damage.

[346]*346Relying on §§ 24-01-421 and 24-01-43,2 N.D.C.C., both enacted before Traill constructed the water line, the Commissioner refused to compensate Traill for expenses incurred in relocating the water line. Traill sued for a declaration that the statutes are unconstitutional, indemnity for the costs of replacing the water line, and attorney fees. The trial court concluded that the statutes are unconstitutional and that Traill’s property had been taken or damaged without compensation, and it awarded Traill compensation, attorney fees, and costs.

Resolution of this appeal requires us to address two issues: (1) whether § 24-01-42 and 24-01-43, N.D.C.C., constitute reasonable land-use regulations not requiring compensation or a taking of private property requiring just compensation; and (2) whether those statutes violate constitutional guarantees of equal protection.

“A statute enjoys a conclusive presumption of constitutionality unless it is clearly shown that it contravenes the state or federal constitution.” Richter v. Jones, 378 N.W.2d 209, 211 (N.D.1985). A statute will be construed, if possible, so that it will pass constitutional muster. In re Kupperion, 331 N.W.2d 22 (N.D.1983). Any doubt as to the constitutionality of a statute must be resolved in favor of its validity. Snortland v. Crawford, 306 N.W.2d 614 (N.D.1981). “Courts will construe statutes so as to harmonize their provisions with the Constitution if it is possible to do so, to the end that they may be sustained.” Syllabus 3, Hjelle v. Sornsin Construction Co., 173 N.W.2d 431 (N.D.1969).

1. regulation or taking

Article I, § 16, N.D. Const., provides that “[pjrivate property shall not be taken or damaged for public use without just compensation.” It is broader than the guarantee of the Fifth Amendment to the United States Constitution. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808 (1942). It “was intended to secure to owners, not only the possession of property, but also those rights which render possession valuable.” Id., Syllabus ¶ 1.

In Rippley v. City of Lincoln, 330 N.W.2d 505, 507 (N.D.1983), we explained the state’s power to regulate land use and the point at which regulation becomes a taking:

“The state, acting through its police power, has broad authority to enact land use regulations without compensating landowners for restrictions placed upon their property, and a zoning ordinance, one type of land use regulation, does not constitute a taking for which compensation must be paid merely because it diminishes the value of the regulated property or disallows the best and highest use of the property. Eck v. City of Bismarck, 283 N.W.2d 193 (N.D.1979); Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978). However, governmental regulation which prohibits all or substantially all reasonable use of the regulated property constitutes a taking of the property for public use which entitles the landowner to just compensation through an inverse condemnation action. See, Kraft v. Malone, 313 N.W.2d 758 (N.D.1981).”

In determining whether a restriction constitutes a taking, courts look to the effect of the restriction on the parcel of land as a whole, rather than to the effect on individual interests in the land. See Keystone Bituminous Coal Ass’n v. De-Benedictis, — U.S. -, -, 107 S.Ct. [347]*3471232, 1248, 94 L.Ed.2d 472, 496 (1987) [quoting Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 130-131, 98 S.Ct. 2646, 2662, 57 L.Ed.2d 631, 652 (1978)]:

“ ‘ “Taking” jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature of the interference with rights in the parcel as a whole — here the city tax block designated as the “landmark site.” ’ ”

In our view, prohibiting a landowner, and thus his lessee or grantee, from constructing “any electrical supply or communication line, gas, oil or water or other pipeline” within 100 feet of the center line of a state highway without the Commissioner’s consent (§ 24-01-42, N.D.C.C.) upon pain of removal “at the expense of the utility, when such removal is required for purposes of highway expansion” (§ 24-01-43, N.D.C.C.) “does nothing more than regulate one particular future use of property while leaving available to the property owner all other uses.” Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741, 758 (N.D.1978). Thus, the statutes do not prohibit all or substantially all reasonable uses of the regulated property as a whole.

Traill argues that “it can hardly be argued that the 100-foot restriction is based on any safety considerations or that it has a reasonable relationship to any other matter of general public welfare” and that “the legislature enacted these statutes simply to reduce the cost of possible future highway expansion.” While safety considerations may not be as great in the case of a buried water line as with some of the other types of lines restricted by the statutes, we are not prepared to say the statute is “clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or public welfare.” Soderfelt v. City of Drayton, 79 N.D. 742, 752, 59 N.W.2d 502, 507 (1953). The statute tends to promote sound and efficient highway planning, safety, and the public welfare.

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Grand Forks-Traill Water Users, Inc. v. Hjelle
413 N.W.2d 344 (North Dakota Supreme Court, 1987)

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Bluebook (online)
413 N.W.2d 344, 1987 N.D. LEXIS 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grand-forks-traill-water-users-inc-v-hjelle-nd-1987.