Knutson v. City of Fargo

Decision Date11 May 2006
Docket NumberNo. 20050355.,20050355.
Citation2006 ND 97,714 N.W.2d 44
PartiesDouglas R. KNUTSON, and Linda F. Knutson, Plaintiffs and Appellants v. CITY OF FARGO, North Dakota, a municipal corporation, Defendant and Appellee.
CourtNorth Dakota Supreme Court

David A. Garaas, Garaas Law Firm, Fargo, ND, for plaintiffs and appellants.

Patricia A. Roscoe, Assistant City Attorney, Fargo, ND, for defendant and appellee.


[¶ 1] Douglas and Linda Knutson appeal the district court's summary judgment dismissing their inverse condemnation, intentional trespass, and negligence claims against the City of Fargo ("the City") for damages caused to their property after a city water main broke. We affirm.


[¶ 2] In July 2003, a water main located under the street adjacent to the Knutsons' home broke. Water flowed onto their property, damaging their house foundation, sidewalk, and fence. In August 2004, the Knutsons sued the City. They claimed the flooding of their property was an inverse condemnation because their property had been taken or damaged for public use protected by the eminent domain provision of the North Dakota Constitution. They also claimed the leakage was an intentional trespass and the City was negligent in maintaining the water main.

[¶ 3] Discovery in the case reflected the water main adjacent to the Knutsons' property was constructed in 1950. The main was made of unlined cast iron and was eight inches wide. According to the affidavit of Dennis Walaker, Director of Operations for Fargo Public Works, cast iron water mains deteriorate over time because soil corrosion will reduce the thickness of the water main's outside wall. The wall deteriorates until a break occurs. Walaker contended no maintenance or repair procedure would have prevented the break that damaged the Knutsons' property.

[¶ 4] According to Walaker's affidavit and its attachments, the City had a water main replacement policy in place at the time the main broke. Under the policy, water mains in the worst condition are replaced first. Factors evaluated included breaks per city block, recent break history, age of the water main, and the type of main. If a city block experienced more than twelve breaks, replacement was recommended. If a block experienced between five and twelve breaks, the water main was replaced if the street was reconstructed, and recent break history was evaluated to decide whether replacement was needed. If a block experienced fewer than five breaks, recent break history and the type of street maintenance needed were considered. These blocks were given low replacement priority. According to Walaker, the policy has resulted in a significant reduction of water main breaks. When discovery was conducted, the City was replacing four to six miles of water main per year.

[¶ 5] Each party moved for summary judgment. The district court held that the Knutsons could not establish inverse condemnation because the City had taken no affirmative act to take or damage their property. The court also concluded the Knutsons could not establish trespass because the City had no intent for the main to break. It finally concluded the City had discretionary immunity, which barred the Knutsons' negligence claim.

[¶ 6] On appeal, the Knutsons argue that the damage caused by the flooding was a taking or damaging for public use, that they can establish their trespass claim, and that the City is not immune from their negligence claim. The City argues the district court correctly granted summary judgment in its favor.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 27-02-04 and §§ 28-27-01 through 28-27-02.


[¶ 8] A grant of summary judgment is reviewed de novo, examining the evidence in a light most favorable to the opposing party. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639. All inferences must be viewed in favor of the non-moving party. Hurt v. Freeland, 1999 ND 12, ¶ 7, 589 N.W.2d 551.


[¶ 9] The Knutsons argue the district court erred when it granted summary judgment on their inverse condemnation action. The eminent domain provision of article I, section 16, of the North Dakota Constitution requires that "[p]rivate property shall not be taken or damaged for public use without just compensation having been first made to . . . the owner. . . ." Inverse condemnation actions are a property owner's remedy, exercised when a public entity has taken or damaged the owner's property for a public use without the public entity's having brought an eminent domain proceeding. Eck v. City of Bismarck, 283 N.W.2d 193, 198 (N.D. 1979). To prove inverse condemnation, the property owner must prove that a public entity took or damaged his or her property for a public use and that public use was the proximate cause of the damage. Frank v. County of Mercer, 186 N.W.2d 439, 445-46 (N.D.1971).

[¶ 10] The district court concluded that to maintain an inverse condemnation claim, "Fargo must have performed some affirmative act similar to exercising the power of eminent domain." The Knutsons argue an affirmative act similar to exercising eminent domain is not required, because a public entity can be liable not only if it acts purposely but also negligently. In Hamilton v. City of Bismarck, a claim for damages from the overflow of Bismarck's sanitary sewer through a manhole, this Court concluded that negligence could not support an inverse condemnation claim:

[W]e distinguish between an action for damages based upon negligence and an action based upon damage to private property for public use within the purview of § 14 of the Constitution. That section of the Constitution does not bear upon damages resulting from negligence of public corporations or their agents; it deals with those damages that would normally flow from the exercise of the power of eminent domain.

71 N.D. 321, 327, 300 N.W. 631, 633-34 (1941). The district court relied on this language to conclude inverse condemnation required an affirmative act similar to eminent domain.

[¶ 11] The Knutsons rely on Jamestown Plumbing & Heating Co. v. City of Jamestown, 164 N.W.2d 355 (N.D.1968), and Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588 (1953), as support that negligent acts by a public entity can support an inverse condemnation action. In Jamestown Plumbing & Heating, in which a street renovation resulted in excess pooling of water that caused a business's building to settle and water to be repeatedly pushed into and under the front door of the business, this Court said:

We conclude that where a municipality purposely with due care or negligently so constructed the street improvement that it created a nuisance which resulted in damage to the property, the municipality is liable for the damage, regardless of the means employed or the intent or the lack of intent on the part of public officials.

164 N.W.2d at 361. The Jamestown Plumbing & Heating Court relied on Kinnischtzke. Id. In Kinnischtzke, in which the city negligently maintained a sewage system that discharged sewage into a creek, damaging the private owner's property and livestock, this Court said:

Negligence may or may not result in the creation of a nuisance, and, on the other hand, a nuisance may be created wholly without negligence. . . .

. . . .

We reach the conclusion that where a municipality purposely or negligently so operates a sewage disposal plant that it becomes a nuisance which results in injury to property, the municipality is liable for damages in an amount sufficient to compensate for the injury.

79 N.D. at 510, 511, 57 N.W.2d at 596-97. On rehearing, this Court said:

Negligence constitutes no exception to [the eminent domain provision of the North Dakota Constitution], nor is tort of any kind made an exception. If private property is taken or damaged for public use, compensation must be made in all cases, regardless of the means employed or the intent or the lack of intent on the part of public officials.

There may be instances where private property is injured through the negligence of municipal officials acting in a governmental capacity which would not amount to damaging the property for public use within the meaning of Section 14 of our constitution. See Hamilton v. City of Bismarck, 71 N.D. 321, 300 N.W. 631. But that is not the case here. The facts set out in the complaint indicate that damage to property resulted from a governmental activity negligently conducted over a considerable period of time and in such a manner that it became a nuisance.

Id. at 515, 57 N.W.2d at 599.

[¶ 12] The Knutsons also rely on Pacific Bell v. City of San Diego, 81 Cal.App.4th 596, 96 Cal.Rptr.2d 897 (2000). Pacific Bell, however, supports the argument that some governmental act, whether done purposefully or negligently, is required to claim inverse condemnation. See id. at 909. The California Court of Appeals stated, "Damage caused by the public improvement as deliberately conceived, altered or maintained may be recovered under inverse condemnation and the presence or absence of fault by the public entity ordinarily is irrelevant." Id. at 903-04 (citing Barham v. S. Cal. Edison Co., 74 Cal.App.4th 744, 88 Cal.Rptr.2d 424, 431-32 (1999); Marshall v. Dep't of Water & Power, 219 Cal.App.3d 1124, 268 Cal.Rptr. 559, 567 (1990)). While discussing McMahan's of Santa Monica v. City of Santa Monica, 146 Cal.App.3d 683, 194 Cal.Rptr. 582 (1983), the Pacific Bell court stated:

McMahan's recognized inverse condemnation is the remedy only for an injury to private property caused by a deliberate act for the purpose of fulfilling one of the public objects of the project as a whole. It also recognized that negligent acts committed during the routine day-to-day operation of the...

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