City of Williston v. Beede, 9737-A

• Decision Date: 28 February 1980
• Docket Number: No. 9737-A,9737-A
• Citation: 289 N.W.2d 235
• Parties: CITY OF WILLISTON, Petitioner, v. William M. BEEDE, District Judge in and for the County of Williams, State of North Dakota and the Northwest Judicial District, and George R. Borsheim and Violet O. Borsheim, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 235

289 N.W.2d 235

CITY OF WILLISTON, Petitioner, v. William M. BEEDE, District Judge in and for the County of Williams, State of North Dakota and the Northwest Judicial District, and George R Borsheim and Violet O Borsheim, Respondents.

Civ. No. 9737-A.

Supreme Court of North Dakota.

Feb. 28, 1980.

Chapman & Chapman, Bismarck, and John H. MacMaster, City Atty., Williston, for petitioner; argued by Daniel J. Chapman, Bismarck.

Bjella, Neff, Rathert & Wahl, Williston, for respondents George R. and Violet O. Borsheim; argued by Paul W. Jacobson, Williston.

SAND, Justice.

In an original proceeding the City of Williston petitioned this court to exercise its superintending power and issue a writ to the District Court of Williams County, directing that the stay order dated 2 January 1980 be vacated, and that proceedings be taken to determine the compensation to be paid for the taking of the property.

These proceedings arose out of an eminent domain action wherein the City of Williston sought a fee simple of certain property for use in connection with the expansion of the Williston Airport. The court separately considered the necessity of the taking and concluded that the City of Williston was entitled to take only the surface estate, including sand and gravel, but not the underlying mineral estate (gas, oil, etc.). The City was permitted to amend its complaint accordingly, which it did. Judgment on the necessity of taking was issued and entered.

The trial on the issue of compensation for the taking was set on the 11th day of December, 1979, but on 14 November 1979 the landowners, George and Violet Borsheim, appealed the judgment on the necessity of taking to this court and moved for a stay of all proceedings until the appeal has been determined by the Supreme Court. The court, on 2 January 1980, granted the stay. The City of Williston then petitioned this court to exercise its original jurisdiction.

Initially, we are faced with two basic issues:

(1) Whether or not this court should exercise its original superintending power and, if so,

(2) Did the district court err in staying the compensation trial until the appeal on the necessity of taking has been heard and decided? This issue indirectly involves the question whether or not the judgment on the necessity of taking is separately appealable, even though we will not resolve it in these proceedings.

On the issue of exercising original jurisdiction, in Burlington Northern v. N. D. Dist. Court, Etc., 264 N.W.2d 453 (N.D.1978), we noted that on numerous occasions our court stated that its power to issue original and remedial writs, even upon a proper showing, is discretionary, and its power cannot be invoked as a matter of right but will be employed to prevent possible injustice. From this it necessarily follows that the court itself, on a case-by-case basis, will determine whether or not it should exercise its original jurisdiction. State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978); State ex rel. Foughty v. Friederich, 108 N.W.2d 681 (N.D.1961); State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D.1961). To this we add the observations made by this court in State ex rel. Olson v. Lynch, 138 N.W.2d 785 (N.D.1965), wherein the court noted that its superintending control is an extraordinary power which will be exercised on behalf of the litigant only under circumstances that are tantamount to a denial of justice. Stormon v. District Court of Pierce County, 76 N.E. 713, 38 N.W.2d 785 (1949). The power of general superintending control over inferior courts was vested in the Supreme Court to assure a corrective remedy where an inferior court refused to act within its jurisdiction or acted injudicially or erroneously within its jurisdiction, or acted beyond its jurisdiction to the serious prejudice of any party, and where there was no adequate remedy for the review and correction of such erroneous and prejudicial acts. State v. Broderick, 75 N.D. 340, 27 N.W.2d 849 (1947).

Article IV, Section 86, of the North Dakota Constitution gives the North Dakota Supreme Court original jurisdiction with authority to hear and determine such original and remedial writs as may be necessary to properly exercise its jurisdiction. In addition, there are several statutory provisions which provide further authorization for supervisory writs, writs of mandamus, and writs of prohibition. Sections 27-02-04, 32-34-01, 32-35-02, NDCC.

We also observe that in Marmon v. Hodny, 287 N.W.2d 470 (N.D.1980), and in Burlington Northern v. N. D. Dist. Court, supra, we were confronted with the situation that if the writ were not granted something would have been done which probably could not have been undone later. This, of course, is not the situation in every instance.

Borsheims argued that they were forced to take an appeal of the court's judgment on the necessity of taking lest it be considered final; that unless an appeal was taken they would be subject to the decision and holding in Oakes Municipal Airport Auth. v. Wiese, 265 N.W.2d 697 (N.D.1978). The instant case is readily distinguishable from Oakes Municipal Airport Authority wherein the court found there was no necessity of taking, whereas, in the instant case, the court found a necessity of taking. In the Oakes case, if no appeal had been taken, it would have been the end of the case and litigation, whereas in the instant case the question of damages still needs to be resolved. Consequently, the Oakes case cannot be used as any authority to support the action taken in the present case, including the appeal of necessity of taking and staying the trial on damages. The Borsheims also argued that if the necessity or quantum in taking is reversed on appeal, then the trial for damages would be of no value and, if a trial for damages had been held, it would have to be set aside. However, if the appeal on quantum and necessity can be prosecuted separately, and if the court were not to reverse the taking, and if the Borsheims were displeased with the damages obtained and appealed from that judgment, there would be two appeals arising out of the same case, whereas if the appeal were withheld until the case is completed, there would be one appeal with possibly two decisions.

In State v. Teigen, 80 N.W.2d 110 (N.D.1956), the court, on page 113, referred to § 32-15-13, NDCC, and observed that this section, when considered in connection with other provisions for acceleration of the determination of the issues in eminent domain actions, clearly made it a duty of the court to proceed with the assessment of damages as rapidly as the procedure provided for will permit and that the court had no power to stay such proceedings pending the final...