Little v. Burleigh County

• Decision Date: 09 April 1957
• Docket Number: No. 7569,7569
• Citation: 82 N.W.2d 603
• Parties: Florence M. LITTLE, Plaintiff and Appellant, v. BURLEIGH COUNTY, North Dakota, a Public Corporation, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 603

82 N.W.2d 603

Florence M. LITTLE, Plaintiff and Appellant, v. BURLEIGH COUNTY, North Dakota, a Public Corporation Defendant and Respondent.

No. 7569.

Supreme Court of North Dakota.

April 9, 1957.

Rehearing Denied May 11, 1957.

Syllabus by the Court.

1. Upon a trial de novo, under the provisions of NDRC 1943, 28-2732, the Supreme Court must ascertain the facts from the record before it, but in making its determination, the findings of fact of the trial court are entitled to appreciable weight.

2. When the trial court's findings of fact as to the market value of the strip of land taken for highway purposes and severance damages and consequential damages to the remainder, by the construction of a relocated grade, are the result of deliberate weighing of conflicting opinion evidence of all witnesses, as shown by the trial judge's memorandum opinion, such fact findings are entitled to appreciable weight.

3. In constructing a public improvement, relocating a highway grade eroded by washouts, a county acts as an agency of the State, and becomes obligated to the landowner upon 'implied contract' for land taken and damaged under the eminent domain provisions of section 14 of the State Constitution.

4. By statute, NDRC 1943, 32-1202, the State has consented that it or its agencies, including a county, may be sued in cases 'arising upon contract', which includes an implied as well as an express contract.

5. Where a county, having lawful right to enter and take lands by eminent domain for public use by paying just compensation therefor, does not enter in conformity to law, but the owner waives such feature and treats it as if the law had been followed, with only the question of compensation to be settled, the law of 'just compensation' under eminent domain applies as if condemnation proceedings were begun and not yet completed. N.D.Const. sec. 14; Schilling v. Carl Tp., 60 N.D. 480 at page 491, 235 N.W. 126 at page 131.

6. Compensation for property actually taken for public purposes, and damages for property not taken but injuriously affected, must be ascertained and assessed pursuant to the provisions of NDRC 1943, 32-1522.

7. Paragraph 1 of NDRC 1943, 32-1522 provides, in effect, that for the taking of property, damages shall be ascertained and assessed for the 'value of the property', which means the market value.

8. 'Market value' is the highest price for which property can be sold in the open market by a willing seller to a willing purchaser, neither acting under compulsion and both exercising reasonable judgment.

9. Paragraph 2 of NDRC 1943, 32-1522 provides, in effect, for (a) severance damages for the depreciation in market value of the remainder of a parcel, caused by severance of the part taken, and (b) consequential damages to the remainder not due to the taking itself, but arising by reason of the use to which the part taken has been put, or by reason of the construction of the improvement thereon.

10. Paragraph 3 of NDRC 1943, 32-1522 provides, in effect, for 'consequential damages', arising from injuries to other property not actually taken, caused by the construction of the public improvement.

11. Where an old county-highway grade diverted floodwater through a highway ditch across a landowner's driveway, and a relocation of such grade increases the flow of floodwater through the same ditch, which has been widened and deepened except where it crosses the private driveway, insofar as the new grade and improved ditch are concerned, the county is legally responsible in damages only to the extent of the increase in quantity rather than for all of the floodwater flowing across the driveway.

12. In reconstructing a highway grade, including its drainage ditch, a county is not under a duty to furnish perfect drainage of adjoining lands, but merely drainage which is equal in capacity and efficiency to that existing prior to the relocation, provided that such drainage is towards a natural watercourse. Laws 1945, Ch. 325, being NDRC 1949 Supp. 24-0633 (now superseded by Laws 1953, Ch. 177, sec. 58, being NDRC 1953, Supp. 24-0306).

13. Even though a county has taken private property for a public purpose, the statute, NDRC 1943, 32-1522, does not allow damages for increased business expense, as such, although if this should depreciate the market value of plaintiff's land, such evidence would become material on that issue.

14. An abutting owner has the right of ingress or egress to such highway subject to the paramount right of the State to improve and control the highway in the interest of the public; but such owner cannot insist on this right of ingress or egress at any place he sees fit, as he holds this right subject to the superior right of the State.

15. When an approach or access way between a county highway and the private driveway of an abutting landowner has caused a washout of the grade during the spring runoff of surface water, and thereafter the county relocated the grade and removed such approach, and provided another adequate approach nearby, the abutting owner is not entitled to damages because of the removal of the previous approach, even though it was preferable to the landowner.

Rausch & Chapman, Bismarck, for appellant.

Harold L. Anderson, State's Atty., Burleigh County, Bismarck, for respondent.

GRONNA, District Judge.

This is a trial de novo of an action by a landowner against a county upon 'implied contract' under Sec. 14 of the North Dakota Constitution which provides that 'private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for the owner, * * *.'

In 1950, at a purchase price of $399, plaintiff acquired title to a small parcel of pasture land (13.38 acres) through which a county highway had been constructed in 1914. The highway subdivided the parcel into two pieces (11.4 and 1.98 acres). A 6-foot culvert had been installed where the highway crossed a creek, and when the culvert was full during spring runoff, a ditch to divert surface water which spilled from the creek during floodstage, onto the land of another, provided a cutoff across a small neck of land inside an oxbow or U-shaped bend in the creek channel. In October 1952, without instituting condemnation proceedings, Burleigh County took a small strip of right-of-way, 1.144 acres, for relocating said county-highway grade the 6-foot culvert in the old grade having been washed out in 1952 by the annual spring runoff of melting snow and ice. Nearly an acre more, a crescent-shaped wedge, lay between the old and new grades. Thereby (a) a curve in the highway was straightened, and (b) the ditch was deepened, and tripled in width, thus averting washouts such as had eroded the old grade during spring runoffs. Only two 2-foot culverts were installed in the 1952 grade, which increased the flow through the cut-off-ditch crossing plaintiff's driveway, a prairie trail, on the south boundary line, which provides a way of access to plaintiff's adjoining farm, west of the 13.38 acres parcel. At floodstage, the ditch always has been so muddy that such spot in the driveway always has been difficult or even impassable for vehicular travel. Since October 1952, the township has constructed a rough-surfaced, rock-paved ford across the muddy ditch.

Previously, in 1925, plaintiff had acquired title to her adjoining farm, 130 acres of pasture land, situated in the same quarter-section as the 13.38 acre parcel but separated therefrom by a railroad embankment. Plaintiff claims (but the trial judge found that she had failed to prove) that the 1952 grade, including the improved ditch, flooded such adjoining land near her farm buildings, and is causing further eroding, deepening and widening of said ditch, thereby causing consequential damages to her land in the total sum of $4,000. Plaintiff also claims that $400 is the market value of the right-of-way taken, and that severance damages to the remainder of the 13.38 acre parcel amounts to $1,500. Said landowner brought this action for damages in the total sum of $5,900. A jury having been waived, the action was tried without a jury. This is an appeal by plaintiff from judgment in her favor for $600 plus interest, costs and disbursements. Plaintiff deems such award of $600 inadequate, and she demands a trial de novo. Defendant asks that judgment be affirmed.

Upon a trial de novo, under the provisions of NDRC 1943 28-2732, the Supreme Court must ascertain the facts from the record before it, but in making its determination, the findings of fact of the trial court are entitled to appreciable weight. In this case, the trial court's findings of fact as to (a) the market value of the strip of land taken for highway purposes, (b) severance damages and consequential damages to the remainder, and (c) consequential damages to plaintiff's adjoining farm caused by the construction of the relocated grade, were the result of deliberate weighing of conflicting opinion evidence of all of the witnesses, as shown by the trial judge's memorandum opinion, and such fact findings are entitled to appreciable weight. Lineburg v. Sandven, 74 N.D. 364, 375, 21 N.W.2d 808, and 813. After all, a judge, sitting on the trial bench, draws his conclusions not only from the statements of witnesses but from his observations of their demeanor as well. He is in a much better position to judge the weight and credibility to be accorded the witnesses than is an appellate court which has only the cold record before it. Klundt v. Pfeifle, 77 N.D. 132, 41 N.W.2d 416. During the trial of this case, the judge personally viewed and inspected the premises, which further aided him in understanding and applying the evidence adduced on the trial.

In constructing such a public improvement, the county was acting as an agency of the State, and became obligated to the landowner upon 'implied contract' under the eminent domain provisions of Section...