City of West Fargo v. McAllister

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 12, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 94City of West Fargo, a political subdivision
of the State of North Dakota, Plaintiff and Appellee
v.
Mark Alexander McAllister, Defendant and Appellant
and
Alerus Financial, N.A.; and all other
persons unknown claiming an estate
or interest in or lien or encumbrance
upon the real property described in
the Complaint, whether as heirs,
devisees, personal representatives,
creditors or otherwise, Defendants
No. 20210360
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Susan L. Bailey, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Christopher M. McShane, West Fargo, ND, for plaintiff and appellee.
Jonathan T. Garaas, Fargo, ND, for defendant and appellant.
City of West Fargo v. McAllister
No. 20210360
Jensen, Chief Justice.
[¶1] Mark McAllister appeals from an amended judgment of condemnation
allowing the City of West Fargo to use its eminent domain power to acquire a
right of way across his property. We conclude the district court did not err in
holding West Fargo was authorized to use quick-take eminent domain
procedures for its sewage improvement project. We further conclude the court
did not abuse its discretion in granting West Fargo’s motion in limine to
exclude testimony from trial that the taking impacted McAllister’s property’s
conformance with the city’s setback requirements. We affirm.
I
[¶2] The relevant facts of this case are recited in City of W. Fargo v.
McAllister, 2021 ND 136, ¶¶ 2-5, 962 N.W.2d 591:
In August 2017, West Fargo passed a resolution determining
it was necessary to construct a sewer improvement project. The
project consisted of the design and installation of two sewer pipes
between West Fargo and Fargo. To complete the project, West
Fargo had to acquire a right of way across certain private property,
including McAllister’s.
West Fargo sued McAllister, seeking to use its quick-take
eminent domain power to acquire immediate possession of a right
of way across McAllister’s property. West Fargo appraised the
compensation for the property rights obtained on McAllister’s
property at $36,000 and deposited that amount with the clerk of
court. McAllister resisted, arguing West Fargo was prohibited from
taking immediate possession of a right of way across his property.
After an evidentiary hearing, the district court concluded West
Fargo was entitled to take immediate possession of a right of way
across McAllister’s property.
Before the trial on the issue of McAllister’s just
compensation, West Fargo moved to exclude testimony that the
taking caused McAllister’s property to become nonconforming
under West Fargo City Ordinances based on front yard setback
requirements. The district court granted the motion, concluding as
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a matter of law that the easement obtained by West Fargo had no
effect on the front yard setback requirements under the West
Fargo City Ordinances and ordered that testimony relating to that
issue would be excluded at trial.
The parties stipulated to the entry of a condemnation
judgment in favor of West Fargo. West Fargo agreed to pay
McAllister $36,000; however, the determination of McAllister’s
costs and disbursements, including attorney’s fees and appraisal
expenses, was reserved for a later date. The parties also stipulated
to the entry of an order certifying the condemnation judgment as
final under N.D.R.Civ.P. 54(b). The district court entered a
condemnation judgment and certified the judgment as final under
Rule 54(b).
[¶3] In the first appeal, because McAllister’s costs and disbursements,
including reasonable attorney’s fees, had been left undecided, this Court
concluded the district court abused its discretion by inappropriately certifying
the condemnation judgment as final under N.D.R.Civ.P. 54(b). McAllister, 2021
ND 136, ¶¶ 12-13. The appeal was therefore dismissed without reaching the
merits. Id. On remand the court entered an amended judgment of
condemnation including an award of McAllister’s attorney’s fees and costs.
Neither party has challenged the award of attorney’s fees and costs.
II
[¶4] McAllister raises multiple legal issues contending the district court erred
in concluding West Fargo was authorized to use quick-take eminent domain
procedures under N.D.C.C. ch. 40-22 for its sewage improvement project.
[¶5] “Statutory interpretation is a question of law, fully reviewable on
appeal.” Schmitz v. N. Dakota State Bd. of Chiropractic Exam’rs, 2022 ND 52,
¶ 9, 971 N.W.2d 892 (quoting State v. Bearrunner, 2019 ND 29, ¶ 5, 921 N.W.2d
894). “The primary purpose of statutory interpretation is to determine
legislative intent.” Id. “Words in a statute are given their plain, ordinary, and
commonly understood meaning, unless defined by statute or unless a contrary
intention plainly appears.” Id.; see N.D.C.C. § 1-02-02.
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[¶6] Our review of constitutional provisions is similar to our interpretation of
statutory provisions. We have summarized our review of constitutional
provisions as follows:
When interpreting constitutional provisions, “we apply
general principles of statutory construction.” State ex rel.
Heitkamp v. Hagerty, 1998 ND 122, ¶ 13, 580 N.W.2d 139 (quoting
Comm’n on Med. Competency v. Racek, 527 N.W.2d 262, 266 (N.D.
1995)). We aim to give effect to the intent and purpose of the people
who adopted the constitutional provision. Id. We determine the
intent and purpose of a constitutional provision, “if possible, from
the language itself.” Kelsh v. Jaeger, 2002 ND 53, ¶ 7, 641 N.W.2d
100. “In interpreting clauses in a constitution we must presume
that words have been employed in their natural and ordinary
meaning.” Cardiff v. Bismarck Pub. Sch. Dist., 263 N.W.2d 105,
107 (N.D. 1978).
“A constitution ‘must be construed in the light of
contemporaneous history—of conditions existing at and prior to its
adoption. By no other mode of construction can the intent of its
framers be determined and their purpose given force and effect.’”
Hagerty, 1998 ND 122, ¶ 17, 580 N.W.2d 139 (quoting Ex parte
Corliss, 16 N.D. 470, 481, 114 N.W. 962, 967 (1907)). Ultimately,
our duty is to “reconcile statutes with the constitution when that
can be done without doing violence to the language of either.” State
ex rel. Rausch v. Amerada Petroleum Corp., 78 N.D. 247, 256, 49
N.W.2d 14, 20 (1951). Under N.D. Const. art. VI, § 4, we “shall not
declare a legislative enactment unconstitutional unless at least
four of the members of the court so decide.”
Sorum v. State, 2020 ND 175, ¶¶ 19-20, 947 N.W.2d 382.
[¶7] Article I, section 16, of the North Dakota Constitution, states in relevant
part:
When the state or any of its departments, agencies or political
subdivisions seeks to acquire right of way, it may take possession
upon making an offer to purchase and by depositing the amount of
such offer with the clerk of the district court of the county wherein
the right of way is located. The clerk shall immediately notify the
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owner of such deposit. The owner may thereupon appeal to the
court in the manner provided by law, and may have a jury trial,
unless a jury be waived, to determine the damages . . . .
This language adopted in 1956 “authorize[d] the legislature to enact ‘quick
take’ condemnation procedures for the state and its departments, agencies, or
political subdivisions.” Eberts v. Billings Cnty. Bd. of Comm’rs, 2005 ND 85, ¶
10, 695 N.W.2d 691; see also Sauvageau v. Bailey, 2022 ND 86, ¶ 13; Johnson
v. Wells Cnty. Water Res. Bd., 410 N.W.2d 525, 528-29 (N.D. 1987) (superseded
by statute recognized by Sauvageau, at ¶ 18). “The ‘quick take’ authorization
in N.D. Const. art. I, § 16 is not self-executing, and legislation is necessary to
effectuate the quick take authority.” Eberts, at ¶ 10.
[¶8] Section 40-22-01, N.D.C.C., provides municipalities with authority to
defray the expense of certain types of improvements, including water supply
and sewerage systems, by special assessments:
Any municipality, upon complying with the provisions of this
chapter, may defray the expense of any or all of the following types
of improvements by special assessments:
1. The construction of a water supply system, or a sewerage
system, or both, or any part thereof, or any improvement
thereto or extension or replacement thereof, including the
construction and erection of wells, intakes, pumping
stations, settling basins, filtration plants, standpipes, water
towers, reservoirs, water mains, sanitary and storm sewer
mains and outlets, facilities for the treatment and disposal
of sewage and other municipal, industrial, and domestic
wastes, and all other appurtenances, contrivances, and
structures used or useful for a complete water supply and
sewerage system.
....
(Emphasis added.) Section 40-22-05, N.D.C.C., provides an exception to
eminent domain proceedings under N.D.C.C. ch. 32-15, i.e., a quick-take
procedure, when the interest sought for an improvement authorized under
N.D.C.C. ch. 40-22 is a “right of way,” stating in relevant part:
4
Whenever property required to make any improvement authorized
by this chapter is to be taken by condemnation proceedings, the
court, upon request by resolution of the governing body of the
municipality making such improvement, shall call a special term
of court for the trial of the proceedings and may summon a jury for
the trial whenever necessary. The proceedings shall be instituted
and prosecuted in accordance with the provisions of chapter 32-15,
except that when the interest sought to be acquired is a right of way
for the opening, laying out, widening, or enlargement of any street,
highway, avenue, boulevard, or alley in the municipality, or for the
laying of any main, pipe, ditch, canal, aqueduct, or flume for
conducting water, storm water, or sewage, whether within or
without the municipality, the municipality may make an offer to
purchase the right of way and may deposit the amount of the offer
with the clerk of the district court of the county wherein the right
of way is located, and may thereupon take possession of the right of
way forthwith. . . . The municipality may levy special assessments
to pay all or any part of the judgment and at the time of the next
annual tax levy may levy a general tax for the payment of the part
of the judgment as is not to be paid by special assessment.
(Emphasis added.)
[¶9] McAllister argues the phrase “right of way,” as used in N.D. Const. art.
I, § 16, and N.D.C.C. § 40-22-05, is restricted or limited only to highway
purposes and incidental uses. To support his argument McAllister relies in part
on Tormaschy v. Hjelle, 210 N.W.2d 100, 102-04 (N.D. 1973) (defining “right of
way” in the relevant constitutional provision, as it relates to a roadway, to
include a sewage lagoon in conjunction with sanitary facilities at an interstate
highway rest area), and N.D.C.C. § 24-01-01.1(38) (defining “right of way” as
“land, property, or interest therein, acquired for or devoted to highway
purposes”). Nevertheless, while these definitions would necessarily apply in
the context of N.D.C.C. title 24 and concern the highways, the definitions
would not necessarily apply when a different meaning is plainly intended by a
statute in another title. See N.D.C.C. § 1-01-09 (“Whenever the meaning of a
word or phrase is defined in any statute, such definition is applicable to the
same word or phrase wherever it occurs in the same or subsequent statutes,
except when a contrary intention plainly appears.”).
5
[¶10] West Fargo argues the quick-take procedure is not limited only to a right
of way for highway purposes and the language of N.D.C.C. § 40-22-05
specifically contemplates a broader definition. West Fargo asserts that nothing
in this section requires a sewage project to be a component of a road project
and the statute specifically separates road projects and sewage projects with
the word “or.” West Fargo also notes this Court has previously suggested “right
of way” may mean different things in different contexts. See, e.g., EOG Res.
Inc., v. Soo Line R. Co., 2015 ND 187, ¶ 29, 867 N.W.2d 308. West Fargo argues
McAllister’s narrow interpretation of N.D.C.C. § 40-22-05 would also render
ineffective the immediate possession language used in the water resource
district eminent domain statute. See N.D.C.C. § 61-16.1-09(2)(b) (allowing
water resource districts to acquire right of way by quick-take eminent domain
as authorized by N.D. Const. art. I, § 16). We agree the statute permits the use
of quick-take procedures for the sewer line at issue in this case. McAllister
argues that even if the quick-take procedure is statutorily allowed, the use of
quick-take is still limited by the constitution.
[¶11] Here, the district court concluded that West Fargo has the ability to
condemn private property rights for the sewer improvement project and that
the quick-take authority under N.D.C.C. § 40-22-05 exists in this situation.
The phrase “right of way” must be construed in the context as it is used in the
relevant constitutional and statutory provisions.
[¶12] Quick-take procedures were included within an amendment to the North
Dakota Constitution in 1956. At the time of the amendment the definition of
right of way included the following: “a Law. A right of passage over another
person’s ground. See EASEMENT, 4; SERVITUDE. . . . e The land, other than
storage or station yards, occupied by a railroad for its tracks, esp. for its main
line; also, the strip of land over which a public road is built, or the strip over
which an electric power transmission line passes.” Webster’s New International
Dictionary 2148 (2d ed. 1954). One legal dictionary from the time defined right
of way as:
The right of passage or of way is a servitude imposed by law or by
convention, and by virtue of which one has a right to pass on foot,
6
or horseback, or in a vehicle, to drive beasts of burden or carts,
through the estate of another. When this servitude results from the
law, the exercise of it is confined to the wants of the person who
has it. When it is the result of a contract, its extent and the mode
of using it is regulated by the contact.
“Right of way,” in its strict meaning, is the right of passage
over another man’s ground; and in its legal and generally accepted
meaning, in reference to a railway, it is a mere easement in the
lands of others, obtained by lawful condemnation to public use or
by purchase. It would be using the term in an unusual sense, by
applying it to an absolute purchase of the fee-simple of lands to be
used for a railway or any other kind of a way.
“Right of way” has a twofold significance, being sometimes
used to mean the mere intangible right to cross, a right of crossing,
a right of way, and often used to otherwise indicate that strip of
land which a railroad appropriates to its own use, and upon which
it builds its roadbed.
The “right of way” is a space of conventional width for one or
more railroad tracks, while a “railroad yard” might be extended
indefinitely.
Black’s Law Dictionary 1489 (4th ed. 1957); cf. Black’s Law Dictionary 1587
(11th ed. 2019) (defining “right-of-way” as “(18c) 1. The right to pass through
property owned by another. • A right-of-way may be established by contract,
by longstanding usage, or by public authority (as with a highway). Cf.
EASEMENT. 2. The right to build and operate a railway line or a highway on
land belonging to another, or the land so used. . . . 4. The strip of land subject
to a nonowner’s right to pass through.”). Courts have also said a right of way
may mean an easement. See McCotter v. Barnes, 101 S.E.2d 330, 334 (N.C.
1958) (“The term ‘right of way’ has a two-fold meaning: it may be used to
designate an easement, and, apart from that, it may be used as descriptive of
the use or purpose to which a strip of land is put.”); Graybill v. Hassel, 74 A.2d
686, 688 (Pa. Super. Ct. 1950) (“In general a right-of-way is merely an
easement, though not necessarily so. A right-of-way may consist either of the
fee or merely of an easement of passage and use, and whether the one or the
other is intended in a particular instance must be determined by the
agreement as a whole.” (Citations omitted.)). We conclude the term right of way
was not limited only to roadways and highways at the time of the constitutional
7
adoption of quick-take authority, and the right of way interest as used in the
1956 amendment allows for the sewer line at issue here.
[¶13] In the context of the quick-take procedure, N.D.C.C. § 40-22-05, adopted
in 1961 shortly after the constitutional amendment, plainly states that a “right
of way” interest exists “for the laying of any main, pipe, ditch, canal, aqueduct,
or flume for conducting water, storm water, or sewage.” See also N.D.C.C. § 40-
22-02 (“The governing body of any municipality may establish, maintain, and
alter a general system of sewerage for the municipality in such manner and
under such regulations as it shall deem expedient and proper.”); N.D.C.C. § 40-
22-03 (“When it is necessary to conduct the sewage of a municipality beyond
the municipal limits . . ., the governing body, by grant, purchase, or
condemnation proceedings, may acquire private property over which to
construct the sewer . . . .”). The plain language of this portion of the statute
providing for a “right of way,” which follows the disjunctive word “or,” is limited
to a right of way for the items listed in the statute and includes the sewer
system project in this case. See State ex rel. Stenehjem v. FreeEats.com, Inc.,
2006 ND 84, ¶ 14, 712 N.W.2d 828 (“Terms or phrases separated by ‘or’ have
separate and independent significance.” (internal citations omitted)).
[¶14] Contrary to McAllister’s assertions, the relevant constitutional and
statutory language does not restrict or limit “right of way” only to roadways
and highways. We conclude the district court did not err in holding the quick-
take procedures were authorized because the interest sought to be acquired
includes a right of way for the sewer line at issue in this case.
[¶15] The district court also concluded a “special assessment” is not required
to be used to pay for the property interest taken by the municipality for the
improvement. Although N.D.C.C. ch. 40-22 is titled, “Improvements by Special
Assessment Method,” “[a] caption may not be used to determine legislative
intent or the legislative history for any statute.” N.D.C.C. § 1-02-12. The
relevant statutory language does not require a municipality to utilize a special
assessment to fund an authorized improvement, but is instead permissive
rather than mandatory. “The word ‘may’ is usually used ‘to imply permissive,
optional, or discretional, and not mandatory action or conduct.’” State v.
8
Houkom, 2021 ND 223, ¶ 9, 967 N.W.2d 801 (quoting State v. Glaser, 2015 ND
31, ¶ 18, 858 N.W.2d 920). See also N.D.C.C. § 40-22-08 (providing while a
municipality may create sewer districts for a special assessment improvement
project, “[n]othing herein . . . shall prevent a municipality from making and
financing any improvement and levying special assessments therefor under
any alternate procedure set forth in this title”). We conclude N.D.C.C. ch. 40-
22 does not require West Fargo to pay for a sewer improvement project
authorized under the chapter with special assessments in order to use the
quick-take procedure.
III
[¶16] McAllister argues the district court erred in excluding all testimony and
argument regarding his claim the sewer easement had an adverse impact on
his property and erred in preventing him from presenting any testimony on his
theory for severance damages to the jury. The district court’s ruling was much
narrower in scope, and limited to granting West Fargo’s motion in limine to
exclude testimony from trial that the taking impacted McAllister’s property’s
conformance with the city’s setback requirements. The district court has
discretion over evidentiary matters, including a decision to exclude the
testimony of a witness. Linstrom v. Normile, 2017 ND 194, ¶ 12, 899 N.W.2d
287. A court abuses its discretion when it acts “arbitrarily, unconscionably, or
unreasonably, or when its decision is not the product of a rational mental
process.” Id.[¶17] Here, the district court concluded the sewer easement does not impact
McAllister’s front yard setback. The court explained:
The front yard requirements for property in the “A” district
are found at section 4-421.4 of the City ordinances. Under W.F.
Ord. 4-421.4(f) [sic] requires a minimum front yard for property
fronting an arterial road of “150’ from centerline or 75’ from the
established right-of[-]way, whichever is greater.” By definition,
under the Zoning Ordinances, the minimum front yard
measurement is in reference to the arterial road’s centerline or the
arterial road’s established related right-of-way. Defendant strains
application of the City Ordinances in his argument that the
9
definition of right-of-way from the subdivision regulations, which
by their terms relate to the subdivision regulations, must be read
in conjunction with the definition of a minimum front yard under
the Zoning Ordinance. The term right-of-way as used in W.F. Ord[.]
4-421.4(f) is limited to its context, which is not just any right-of-
way, but the particular established right-of-way related to the
arterial road.
The district court specifically rejected as a matter of law McAllister’s assertion
the city’s recently-acquired permanent right-of-way easement created a new
benchmark or reference line from which a minimum front yard is to be
measured. The court therefore concluded all testimony and argument claiming
the sanitary sewer easement obtained in this case has an impact on the front
yard setback requirement found in W.F. Ord. 4-421.4(f) was excluded and
inadmissible at trial.
[¶18] Interpretation of the ordinance was a question of law. See Arnegard v.
Arnegard Twp., 2018 ND 80, ¶ 14, 908 N.W.2d 737 (“Ordinance interpretation,
like statutory interpretation, is a question of law subject to full review upon
appeal.”). We agree with the district court’s interpretation of the ordinance and
with the court’s determination that McAllister sought to admit evidence based
on an incorrect interpretation. We conclude the court did not abuse its
discretion by precluding testimony and argument on a measure of damages
premised on McAllister’s erroneous interpretation of the city’s zoning
ordinances.
IV
[¶19] We have considered the remaining issues and arguments raised by
McAllister and conclude they are either without merit or unnecessary to our
decision. The district court correctly determined that quick-take procedures
were available to the City of West Fargo in the sewer project at issue in this
case. The district court did not abuse its discretion on excluding evidence that
relied upon an incorrect interpretation of West Fargo’s zoning ordinance. The
amended judgment is affirmed.
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[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
11