City of Medora v. Golberg, 970066

• Decision Date: 30 September 1997
• Docket Number: No. 970066,970066
• Citation: 569 N.W.2d 257
• Parties: CITY OF MEDORA, North Dakota, a Municipal Corporation, Plaintiff and Appellee, v. Gerald GOLBERG, Betty Golberg and Mary Schneider, Defendants and Appellants. Civil
• Court: North Dakota Supreme Court

Page 257

569 N.W.2d 257

1997 ND 190

CITY OF MEDORA, North Dakota, a Municipal Corporation Plaintiff and Appellee, v. Gerald GOLBERG, Betty Golberg and Mary Schneider, Defendants and Appellants.

Civil No. 970066.

Supreme Court of North Dakota.

Sept. 30, 1997.

Ronald A. Reichert (argued), of Reichert & Herauf, P.C., Dickinson, for plaintiff and appellee.

Michael J. Maus (argued), of Howe, Hardy, Galloway & Maus, Dickinson, for defendants and appellants.

NEUMANN, Justice.

¶1 Gerald Golberg, Betty Golberg, and Mary Schneider appealed from an eminent domain judgment granting the City of Medora roadway and utility easements over their property and awarding them $16,700 in damages and $14,286.43 in attorneys fees, costs, and expert witness fees. We affirm the taking decision, and we reverse the award of attorneys fees and remand for a redetermination of reasonable attorneys fees.

¶2 The Golbergs and their daughter, Schneider, own a campground on the south side of Medora. Their land includes a road which provides access from East River Road to the campground and to two other private residences. The road runs north and south along the east side of the campground and turns east to provide access to the two private residences before it stops at a dead end. The only access to the two private residences is by the road, and those residents have an easement to use the road. The property owners on the east side of the road have access from the east and do not use the road.

¶3 In 1992 the City sued the Golbergs, seeking to declare the road a public road by prescription. The City alternatively sought to declare the road necessary for a public use in an eminent domain proceeding and to obtain roadway and utility easements. ¹ The trial court bifurcated the prescription and the eminent domain proceedings. After a bench trial, the court ruled the City had failed to prove adverse use of the road for the prior 20 years and dismissed with prejudice the City's prescription claim.

¶4 While the action was pending, the Golbergs deeded Schneider a 20 percent interest in the property, and she was allowed to intervene as a defendant in the eminent domain proceeding. The court ruled the City's proposed taking was necessary for an authorized public use under N.D.C.C. Ch. 32-15 and N.D.C.C. §§ 40-05-01 and 40-05-02. A jury thereafter awarded the Golbergs and Schneider $16,770 in just compensation for the taking. The Golbergs and Schneider subsequently sought more than $30,000 for attorneys fees, costs and expenses under N.D.C.C. § 32-15-32. The court awarded them attorneys fees of $10,000, statutory costs of $1,630.43, and expert witness fees of $2,656. The Golbergs and Schneider appealed.

¶5 The Golbergs and Schneider contend the trial court erred in deciding the taking of the road was necessary for a public use. They argue

"the overall character of the use to be made of the property to be taken is one of private benefit as opposed to public benefit. The road way services the campground and other property owned by the Defendants and two private residences. That is all. There is no connection with any other public street. The [two private] residences ... each have permanent easements to use the road and these easements run with this property....

"City utility and emergency vehicles have always been permitted the use of this road."

¶6 Eminent domain is the right to take private property for a public use. N.D.C.C. § 32-15-01(1). Private property cannot be taken for a public use without payment of just compensation to the owner. N.D. Const. Art. I, § 16; N.D.C.C. § 32-15-01(2). Before an authorized entity may take private property for public use, the proposed use must be authorized by law and the taking must be necessary for the public use. N.D.C.C. § 32-15-05.

¶7 Here, the proposed uses for the property are easements for a public roadway and for water, sewer, utilities, and cable television. Municipalities are authorized "[t]o lay out, establish, open, alter, repair, clean, widen, vacate, grade, pave, park, or otherwise improve and regulate the use of streets ... and to prevent and regulate obstructions and encroachments upon [streets]." N.D.C.C. § 40-05-01(8). Municipalities also have the power "[t]o regulate the laying of gas or water mains and pipes, and the building, laying, or repairing of sewers, tunnels, and drains, and the erecting of gas and electric light plants, ... [t]o purchase, acquire by eminent domain, erect, lease, rent, manage, and maintain any system of waterworks, ... to acquire by purchase, lease, gift, or condemnation the necessary lands, rights of way, and easements for [sewage disposal]." N.D.C.C. § 40-05-01(12), (36), and (59).

¶8 The Legislature has unambiguously authorized the taking of private property for the uses proposed in this case. Although there is a presumption a use is public when the Legislature has declared it to be and we treat the Legislature's decision with the deference due a coordinate branch of government, we have said the ultimate decision regarding whether a proposed use of property is, in fact, a public use is a judicial question. City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365, 369 (N.D.1996). See Square Butte Elec. Co-op. v. Hilken, 244 N.W.2d 519, 523 (N.D.1976); Northern Pacific Ry. Co. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679, 681 (1908); Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 574 (1896). See generally 2A J. Sackman and P. Rohan, Nichols on Eminent Domain § 7.03 (Rev. 3rd Ed.1997) ("[t]he question of whether a legislative determination of a public use is really public has been declared by the courts ultimately to be a judicial one.").

¶9 Generally, there are two lines of authority for deciding if a proposed use is a public use. 2A Nichols at §§ 7.02 and . A limited view requires actual use or the right to use the proposed property by the public as a whole, while a broader view requires only a use conferring a public advantage or a public benefit. Id. See Square Butte, 244 N.W.2d at 523, citing Montana Power Co. v. Bokma, 153 Mont. 390, 457 P.2d 769, 772-73 (1969).

¶10 We applied the broad view of public use in Leevers Supermarkets, 552 N.W.2d at 374, where we cited Square Butte, 244 N.W.2d at 523, for the principle a public use requires a public advantage or a public benefit. ² In Leevers Supermarkets, 552 N.W.2d at 369, we held the City of Jamestown's proposed stimulation of commercial growth and removal of economic stagnation were objectives satisfying the requirement for a public use.

¶11 Here, the proposed uses of the property are easements for a public roadway and for utilities, water, sewer, and cable television. Providing roadways, sewer, and water serves a basic government function. See 2A Nichols at §§ 7.06 (public highways), 7.06 (water supply), and 7.06 (sewers). It cannot seriously be argued those uses do not provide a public advantage or public benefit. We conclude these easements provide a public advantage or public benefit under the public use requirement.

¶12 This conclusion, however, does not end our inquiry, because a taking also must be necessary for the proposed public use. N.D.C.C. § 32-15-05(2). The Golbergs and Schneider contend their road was taken predominantly for a private use, because the two other residences served by the road already have easements to use it. They also argue they have provided the City with access to maintain water, sewer, utility, and cable television lines. The Golbergs and Schneider effectively argue the location and nature of the road leads to only one conclusion--the taking was not necessary for a public use.

¶13 The purported necessity for a taking of private property is subject to limited judicial review. Leevers Supermarkets, 552 N.W.2d at 370. In the absence of bad faith, gross abuse of discretion, or fraud by the condemning authority, a decision the property sought is necessary for an authorized public use will not be disturbed by the courts. Id. In Leevers Supermarkets, 552 N.W.2d at 370, we applied the abuse of discretion standard to review the City's decision a taking was necessary for a public use.

¶14 Here, there was evidence the Golbergs had, on one occasion, blocked the road. There also was some evidence the Golbergs had not always provided snow removal during the winter, and the City needed access for garbage pickup and other emergency services. The Golbergs and Schneider claim they would permit use of the road for those purposes. The need for those permissive uses, however, suggests a necessity for a public use. Under the broader view of public use, it is not necessary for the public as a whole to use the easements in order for the taking of those easements to be necessary for a public advantage or a public benefit. The City is vested with a wide range of discretion in exercising this governmental function, and we are not persuaded the Golbergs and Schneider have demonstrated bad faith, fraud, or a gross abuse of discretion by the City in deciding the taking of these easements was necessary for a valid public use.

¶15 The Golbergs and Schneider also argue the claimed public use is not compatible with the greatest public benefit and the least private injury. Land taken for a public use must be located in the manner compatible with the greatest public benefit and the least private injury. N.D.C.C. § 32-15-06. If there has been a carefully considered good faith selection of a location by a condemning authority, courts generally will not interfere with the actual location of the property condemned. Gissel v. Kenmare Tp., 512 N.W.2d 470, 474 (N.D.1994); Northern States Power Co. v. Effertz, 94 N.W.2d 288, 291 (N.D.1958).

¶16 We decline to second guess the City for choosing this route for the easements. There was already a road in place on this site, and the City had utility easements over part of the land. The City was entitled to consider those factors in choosing this site for...