Guerard v. State

• Decision Date: 09 July 1974
• Docket Number: No. 8944,8944
• Citation: 220 N.W.2d 525
• Court: North Dakota Supreme Court
• Parties: Cecil GUERARD, Plaintiff and Appellant, v. STATE of North Dakota, Defendant and Appellee. Civ.

Page 525

220 N.W.2d 525

Cecil GUERARD, Plaintiff and Appellant, v. STATE of North Dakota, Defendant and Appellee.

Civ. No. 8944.

Supreme Court of North Dakota.

July 9, 1974.

Syallabus by the Court

Owner of property abutting a street, made into a cul-de-sac by the closing of one end of the street by a public improvement, may recover for damages, even though no part of his property is taken, if his damage is special and in excess of that sustained by the public generally and if the kind of improvement was not within the contemplation of the parties at the time the street was dedicated to a public use.

Murray, Mack, Moosbrugger & Leonard, Grand Forks, for plaintiff and appellant.

Vernon R. Pederson, Special Asst. Atty. Gen., State Highway Department, Bismarck, for defendant and appellee.

VOGEL, Judge, on reassignment.

This is an appeal by the plaintiff from a summary judgment dismissing his action.

The plaintiff, Cecil Guerard, alleged that he was the owner of real property described as Lots 15, 16, and 17 of Block 2, Budge and Eshelman's Third Addition to the City of Grand Forks, abutting on Dyke Avenue; that his property had free and convenient access to North Washington Street (U.S. Highway 81); and that in the year 1965 the State of North Dakota reconstructed the Washington Street underpass under the Great Northern tracks, thereby closing the intersection of Dyke Avenue and Washington Street. Guerard claims that as a result of the closing of this intersection he was damaged by the loss of the primary access to his business property from Washington Street onto Dyke Avenue, and brought this action to recover those damages. He demanded a jury trial.

The State in its answer denied that the property of the plaintiff had legal access to Washington Street; denied that there had been any compensable depreciation in the market value of the property or any compensable depreciation in the value of the business; denied that the business required that the property have free and convenient access to Washington Street by way of Dyke Avenue; denied that as a proximate result of the closing of Dyke Avenue the plaintiff had been deprived of his primary access to Washington Street; denied that as a proximate result of the closing of Dyke Avenue and the resulting loss of primary access to Washington Street the plaintiff has suffered damage to his business and property; and denied that as a direct result of the deprivation of primary access to Washington Street the volume of business has been and will be diminished.

The State for summary judgment on two grounds:

'I.

'That the closing of Dyke Avenue where it intersects U.S. Highway 81 (Washington Street) is a valid exercise of the police power and directly relates to the health and welfare of the traveling public;

'II.

'That the Legislature has limited as a matter of law the right of recovery for loss of access to properties abutting the highway and no others.'

The trial court found that said property is not 'abutting land' to North Washington Street and U.S. Highway 81, that the plaintiff was not vested with a legal 'right of access,' as defined in Section 24--01--01.1, subsection 35, N.D.C.C., to his property not abutting on North Washington Street and U.S. Highway 81, and that consequently his alleged damages are not compensable. The court concluded that since the plaintiff was barred by the statute from recovery as a matter of law, there was no genuine issue as to any material fact, and granted the defendant's motion for summary judgment dismissing the plaintiff's action.

The State in its motion for summary judgment contended that the Legislature had limited as a matter of law the right to recover for loss of access to properties abutting the highway, and no others, by its definition of 'right of access' in Section 24--01--01.1, subsection 35, N.D.C.C., with reads:

'35. 'Right of access' shall mean the right of ingress to a highway from abutting land and egress from a highway to abutting land.'

This action is in the nature of an inverse condemnation proceeding. No part of the plaintiff's property was taken by the State. The plaintiff complains, however, that as a result of the reconstruction of the underpass and the approaches thereto, the intersection of Dyke Avenue with Washington Street was closed and the property of the plaintiff suffered consequential damages. It appears that Guerard's property was 175 feet from the improvement, and within one city block of it. It was therefore placed within a cul-de-sac.

Section 14 of the North Dakota Constitution provides:

'Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner. . . .'

Section 32--15--22, N.D.C.C., provides that the jury or court, 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:

'3. If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages; . . .'

The first question for our decision is whether the court or the jury has the duty to decide whether compensable damage has been caused to the Guerard property. We hold that this is a preliminary decision to be made by the court, as a matter of law.

The question of whether there has been a taking or damaging of private property for public use is a question of law. Breidert v. Southern Pacific Co., 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719 (1964); Brock v. State Highway Commission, 195 Kan. 361, 404 P.2d 934 (1965); Thomsen v. State, 284 Minn. 468, 170 N.W.2d 575 (1969).

This is not simply a question as to whether damage has occurred, but is a question as to whether the damage is of a type which is compensable. Whether it is compensable or not depends upon considerations which have been outlined in some of our prior cases.

We start with the basic proposition that some actions of governmental agencies, which incidentally affect private property, do not give rise to a right to damages. Such actions are sometimes described as being within the police power of the State.

'Generally, the rule is that where the State or its agencies in the exercise of the State's sovereign power do an act which they are authorized to do, the fact that incidental injuries may accrue to an individual does not necessarily give that person a right of action. The private right must give way to the public right, and unless the law specifically gives the right of recovery then no recovery can be had.' King v. Stark County, 67 N.D. 260, 271 N.W. 771 (1937).

However, under the North Dakota Constitution Section 14, which permits recovery for damage to property as well as taking of property,

'It is not necessary that there be a direct injury to the property itself in order to create this liability. It is sufficient to warrant a recovery if there be 'some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and that by reason of...