Little v. Burleigh County

82 N.W.2d 603, 1957 N.D. LEXIS 118
CourtNorth Dakota Supreme Court
DecidedApril 9, 1957
Docket7569
StatusPublished
Cited by37 cases

This text of 82 N.W.2d 603 (Little v. Burleigh County) 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
Little v. Burleigh County, 82 N.W.2d 603, 1957 N.D. LEXIS 118 (N.D. 1957).

Opinion

GRONNA, District Judge.

This is a trial de novo of an action by a landowner against a county upon “implied contract” under Sec. 14 of the North Dakota Constitution which provides that “private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for the owner, * *

In 1950, at a purchase price of $399, plaintiff acquired title to a small parcel of pasture land (13.38 acres) through which a county highway had been constructed in 1914. The highway subdivided the parcel into two pieces (11.4 and 1.98 acres). A 6-foot culvert had been installed where the highway crossed a creek, and when the culvert was full during spring runoff, a ditch to divert surface water which spilled from the creek during floodstage, onto the land of another, provided a cutoff across a small neck of land inside an oxbow or U-shaped bend in the creek channel. In October 1952, without instituting condemnation proceedings, Burleigh County took a small strip of right-of-way, 1.144 acres, for relocating said county-highway grade, *607 the 6-foot culvert in the old grade having been washed out in 1952 by the annual spring runoff of melting snow and ice. Nearly an acre more, a crescent-shaped wedge, lay between the old and new grades. Thereby (a) a curve in the highway was straightened, and (b) the ditch was deepened, and tripled in width, thus averting washouts such as had eroded the old grade during spring runoffs. Only two 2-foot culverts were installed in the 1952 grade, which increased the flow through the cutoff-ditch crossing plaintiff’s driveway, a prairie trail, on the south boundary line, which provides a way of access to plaintiff’s adjoining farm, west of the 13.38 acres parcel. At floodstage, the ditch always has been so muddy that such spot in the driveway always has been difficult or even impassable for vehicular travel. Since October 1952, the township has constructed a rough-surfaced, rock-paved ford across the muddy ditch.

Previously, in 1925, plaintiff had acquired title to her adjoining farm, 130 acres of pasture land, situated in the same quarter-section as the 13.38 acre parcel but separated therefrom by a railroad embankment. Plaintiff claims (but the trial judge found that she had failed to prove) that the 1952 grade, including the improved ditch, flooded such adjoining land near her farm buildings, and is causing further eroding, deepening and widening of said ditch, thereby causing consequential damages to her land in the total sum of $4,000. Plaintiff also claims that $400 is the market value of the right-of-way taken, and that severance damages to the remainder of the 13.38 acre parcel amounts to $1,500. Said landowner brought this action for damages in the total sum of $5,900. A jury having been waived, the action was tried without a jury. This is an appeal by plaintiff from judgment in her favor for $600 plus interest, costs and disbursements. Plaintiff deems such award of $600 inadequate, and she demands a trial de novo. Defendant asks that judgment be affirmed.

Upon a trial de novo, under the provisions of NDRC 1943 28-2732, the Supreme Court must ascertain the facts from the record before it, but in making its determination, the findings of fact of the trial court are entitled to appreciable weight. In this case, the trial court’s findings of fact as to (a) the market value of the strip of land taken for highway purposes, (b) severance damages and consequential damages to the remainder, and (c) consequential damages to plaintiff’s adjoining farm caused by the construction of the relocated grade, were the result of deliberate weighing of conflicting opinion evidence of all of the witnesses, as shown by the trial judge’s memorandum opinion, and such fact findings are entitled to appreciable weight. Lineburg v. Sandven, 74 N.D. 364, 375, 21 N.W.2d 808, and 813. After all, a judge, sitting on the trial bench, draws his conclusions not only from the statements of witnesses but from his observations of their demeanor as well. He is in a much better position to judge the weight and credibility to be accorded the witnesses than is an appellate court which has only the cold record before it. Klundt v. Pfeifle, 77 N.D. 132, 41 N.W.2d 416. During the trial of this case, the judge personally viewed and inspected the premises, which further aided him in understanding and applying the evidence adduced on the trial.

In constructing such a public improvement, the county was acting as an agency of the State, and became obligated to the landowner upon “implied contract” under the eminent domain provisions of Section 14 of the State Constitution, supra. Mayer v. Studer & Manion Co., 66 N.D. 190, 195, 262 N.W. 925; Schilling v. Carl Tp., 60 N.D. 480, 491, 235 N.W. 126, 131; Jacobson v. State, 68 N.D. 259, 262, 278 N.W. 652, 653.

The State has consented to be sued in cases “arising upon contract”, NDRC 1943, 32-1202, which includes an implied as well as an express contract. Jacobson v. State, supra.

*608 Where a county, having lawful right to enter and take lands by eminent domain for public use by paying just compensation therefor, does not enter in conformity to law, but the owner waives such feature and treats it as if the law had been followed, with only the question of compensation to he settled, the law of “just compensation” under eminent domain applies as if condemnation proceedings were begun and not yet completed. Schilling v. Carl Tp., supra, 60 N.D. at page 491, 235 N.W. at page 131.

Although the provisions of N.D. Const. Section 14, supra, do not define the words "taken or damaged” and “just compensation”, as used therein, such terms are defined by NDRC 1943, Section 32-1522. Accordingly, compensation for property actually taken, and damages for property not taken but injuriously affected, must be ascertained and assessed pursuant to the provisions of such statute. Lineburg v. Sandven, 74 N.D. 364, 21 N.W.2d 808; Wishek Investment Co. v. McIntosh County, 77 N.D. 685, 45 N.W.2d 417 and Minnkota Power Co-op. v. Bacon, 80 N.D.-, 72 N.W.2d 880. Section 32-1522, supra, reads in part as follows:

“Assessment of Damages. The jury, or court, or referee, if a jury is waived, must hear such legal testimony as may be offered by any of the parties to the proceedings and thereupon must ascertain and assess:
“1. The value of the property sought to be condemned and all improvements thereon pertaining to the realty and of each and every separate estate or interest therein. If it consists of different parcels, the value of each parcel and each estate and interest therein shall be separately assessed;
“2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff;
“3.

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Bluebook (online)
82 N.W.2d 603, 1957 N.D. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-burleigh-county-nd-1957.