Jamestown Plumbing & Heating Co. v. City of Jamestown, 8451

• Decision Date: 24 December 1968
• Docket Number: No. 8451,8451
• Court: North Dakota Supreme Court
• Parties: JAMESTOWN PLUMBING & HEATING COMPANY, Plaintiff and Appellant, v. CITY OF JAMESTOWN, North Dakota, a municipal corporation, and the State of North Dakota, and Walter R. Hjelle, State Highway Commissioner of North Dakota, Defendants and Respondents.

Page 355

164 N.W.2d 355

JAMESTOWN PLUMBING & HEATING COMPANY, Plaintiff and Appellant, v. CITY OF JAMESTOWN, North Dakota, a municipal corporation, and the State of North Dakota, and Walter R.

Hjelle, State Highway Commissioner of

North Dakota, Defendants and

Respondents.

No. 8451.

Supreme Court of North Dakota.

Dec. 24, 1968.

Rehearings Denied Feb. 10, 1969.

Syllabus by the Court

1. The guarantee of Section 14 of the Constitution of North Dakota that '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' is not dependent upon eminent domain proceedings. It is applicable as well where no condemnation proceedings have been brought, and where private property has been taken or damaged for a public use without payment of compensation, and without the consent of the owner. This guarantee is an obligation on the part of the state in the nature of an implied contract to compensate the owner for the damage which has been caused.

2. The measure of damages under Section 14 of the North Dakota Constitution, when property is damaged by a public work and no part of the property is taken, is the difference between the fair market value before and after the inflicting of the damage.

3. Where an attempt is made to lay a foundation for the impeachment of a witness on the ground that he has made prior inconsistent statements regarding a material issue, the questioning must take the form of requiring a witness to affirm or deny making a specific statement, and if the answer is one of denial the witness may be impeached by subsequently producing evidence to the effect that he did actually make the statement which he denies.

4. The qualifications of a proffered expert witness are primarily a matter to be determined by the trial court and his determination with respect thereto will not be reversed unless it appears that he has abused his discretion in that respect. In the instant case, for reasons stated in the opinion, the trial court abused his discretion in excluding the testimony of the proffered expert witness.

Floyd B. Sperry, Bismarck, and MacKenzie & Jungroth, Jamestown, for appellant.

Kenneth M. Moran, Jamestown, for respondent, City of Jamestown.

Jon R. Kerian, Asst. Atty. Gen., Bismarck, for respondent, Walter R. Hjelle, State Highway Com'r.

KNUDSON, Judge.

The North Dakota State Highway Department joined with the City of Jamestown in a project for the improvement of Tenth Street S.E. for the distance from the James River bridge eastward to Twelfth Avenue S.E., in the year 1960. The plaintiff owns Lots 5 and 6 fronting on Tenth Street S.E. and, adjacent to the rear of Lots 5 and 6, Lots 7, 8 and 9 fronting on Second Avenue S.E. The plaintiff's store building is on Lot 6, on the corner of Tenth Street S.E. and Second Avenue S.E. This property is a short distance east of the bridge. The improvement consisted of widening the traveled portion of Tenth Street S.E. to four lanes, thereby eliminating the boulevard and bringing the traveled portion of the street up to the 4.2-foot wide sidewalk in front of the plaintiff's store building. None of the plaintiff's property was taken for the improvements. The grade of Tenth Street S.E. in Front of the plaintiff's property was raised 36/100ths inch in front of Lot 6, 3 inches in front of Lot 5, and, to the west of plaintiff's property, 7.44 inches in front of Lot 4, which lot was owned by the city.

After the street improvement, water from a drainage area of approximately 52 acres flowed upon and through the streets abutting on the plaintiff's property. Prior to the street improvement, the drainage area consisted of approximately 16 acres. The plaintiff claimed that because of the greater drainage area excessive quantities of water from rains converged in the streets at the corner of his building, overflowed the curb, and flowed into the building under the front door, requiring the plaintiff to pack stuffing under the door to try to keep the water out, and to mop up the water on the floor; that water was splashed and gravel was thrown against the plate glass windows by passing traffic; that the excessive water caused the building to settle; that the building had to be reconstructed; and that there was a settling of the sidewalk. The plaintiff also claimed damage for loss of most of its retail trade because the access to the front of its building was destroyed by the loss of street parking, the entrance being on the northeast corner next to the street improvement. The plaintiff claimed damages to his property and business in the amount of $75,000.

The jury brought in a verdict dismissing the plaintiff's complaint. The court, over the objection of the plaintiff, assessed costs against the plaintiff in the sum of $2,112.88, and judgment was entered accordingly against the plaintiff. The trial court denied the plaintiff's motion for a new trial. The plaintiff appealed from the judgment, from the order denying the motion for new trial, and from the order denying the objection to the taxation and retaxation of costs and the order taxing and retaxing the costs and disbursements in the amount of $2,112.88.

The plaintiff contends that it is entitled to recover by inverse condemnation for the damages to its property resulting from the improvement of Tenth Street, within the purview of § 14 of the North Dakota Constitution providing that private property shall not be taken or damaged for public use without just compensation.

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. * * *

North Dakota Constitution article I, § 14.

We have held on numerous occasions that under this constitutional provision the owner may maintain an action to recover damages for the taking of his property and for consequential damages to his property resulting from a public use.

We said in Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 817 (1942):

The provisions of Section 14 of the Constitution are not restricted to eminent domain proceedings. They are applicable as well where private property has been taken or damaged without the consent of the owner, and where no condemnation proceeding has been brought. It is well settled that in such case the constitutional guarantee may be invoked, and the owner may maintain an action to recover just compensation for the property taken or the damage inflicted.

wherein we cited Gram Const. Co. v. Minneapolis, St. P. & S. St. M.R. Co., 36 N.D. 164, 161 N.W. 732; Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126; Mayer v. Studer & Manion Co., 66 N.D. 190, 262 N.W. 925; King v. Stark County, 67 N.D. 260, 271 N.W. 771; and Jacobson v. State, 68 N.D. 259, 278 N.W. 652. We also applied this rule in the following cases: Wilson v. City of Fargo, 141 N.W.2d 727 (N.D.1966); Northern Pacific Ry. Co. v. Morton County, 131 N.W.2d 557 (N.D.1964); Kenner v. City of Minot, 98 N.W.2d 901 (N.D.1959); Little v. Burleigh County, 82 N.W.2d 603 (N.D.1957); and Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588 (1953).

We have said that under § 14 of the North Dakota Constitution the obligation of the state to pay just compensation to the owner for the taking of or for damages to his property is, in effect, a contract to compensate for the damages. When the state takes or damages private property 'there is an implied promise to make the required compensation.' Schilling v. Carl Township, Grant County, 60 N.D. 480, 235 N.W. 126, 131.

Since the Constitution guarantees the right to compensation, this obligation is in effect an implied contract on the part of the state to compensate for the damage which it has caused.

Mayer v. Studer & Manion Co., 66 N.D. 190, 262 N.W. 925, 927 (1935).

What is recovered is 'compensation,' which presupposes a contract, expressed or implied. It is not damages in the strict sense of the word.

Jacobson v. State, 68 N.D. 259, 278 N.W. 652, 653 (1938).

In constructing such a public improvement, the county * * * became obligated to the landowner upon 'implied contract' under the eminent domain provisions of Section 14 of the State Constitution * * *.

Little v. Burleigh County, 82 N.W.2d 603, 607 (N.D.1957).

As all of the parties have tried this case on the theory that it is an action by inverse condemnation within the provisions of § 14 of the North Dakota Constitution, we will consider the several specifications of error assigned by the plaintiff in the light of that theory.

The plaintiff contends that the court erred in refusing to permit the plaintiff to cross-examine the expert witness, Harry Arneson, a witness for the city of Jamestown, with reference to prior statements made by him relative to the damages of the plaintiff, Arneson having been employed first by the plaintiff to evaluate the damages, and then employed by the defendant.

On direct examination, Mr. Arneson testified that he had been requested by the plaintiff to look at the property in December 1965, but that he did not make an appraisal as he was under the impression that the plaintiff had dropped the matter of employing him as an appraiser, as the plaintiff thought there might be a settlement. Later, he was retained by the City as an appraiser because no settlement had been reached between the plaintiff and the defendants.

On direct examination for the defendants, Mr. Arneson testified that, 'Based on the change (inflation) in the land value, I would say that today (1966) this land and building is worth about $20,000.00 more than it was in 1960.'

On cross-examination by the plaintiff, Mr. Arneson testified that the value of the property before the street improvement and immediately after the street improvement was approximately the same.

The plaintiff on cross-examination sought to impeach Mr. Arneson on the ground that he had made a prior inconsistent statement...