Maragos v. City of Minot

• Decision Date: 12 November 1971
• Docket Number: No. 8742,8742
• Citation: 191 N.W.2d 570
• Parties: George S. MARAGOS et al., Plaintiffs and Appellants, v. The CITY OF MINOT, a Municipal Corporation, and The State Highway Department of the State of North Dakota, Defendants and Respondents. Civ.
• Court: North Dakota Supreme Court

Page 570

191 N.W.2d 570

George S. MARAGOS et al., Plaintiffs and Appellants, v. The CITY OF MINOT, a Municipal Corporation, and The State Highway Department of the State of North Dakota Defendants and Respondents.

Civ. No. 8742.

Supreme Court of North Dakota.

Nov. 12, 1971.

Syllabus by the Court

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

2. An action in inverse condemnation brought to recover damages for property claimed to have been damaged by the State or its agencies in the construction of a public improvement, even though no part of such property actually is taken, is an action upon contract.

3. An action upon a contract, obligation, or liability, express or implied, must be commenced within six years after the cause of action accrues.

4. Where property is damaged for public use, the owner's right to compensation arises when the property is damaged.

5. For reasons stated in the opinion, it is held that the plaintiff's cause of action is barred by the statute of limitations.

McGee, Van Sickle, Hankla, Backes & Wheeler, Minot, for plaintiffs and appellants.

Bosard, McCutcheon, Kerian & Schmidt, Minot, for defendant and respondent City of Minot.

Helgi Johanneson, Atty. Gen., and Myron E. Bothun, Sp. Asst. Atty. Gen., Bismarck, for defendant and respondent State Highway Dept.

STRUTZ, Chief Justice.

This action was commenced against the City of Minot and the State Highway Department for consequential damages to the plaintiffs' property arising from the construction of a viaduct and the reconstruction of an intersection, both of which projects were completed in November of 1963. While the plaintiffs assert a number of specifications of error, the first issue to be considered on this appeal is whether the statute of limitations has barred the bringing of the action. If so, other specifications of error need not be considered.

The trial court issued an order dismissing the plaintiffs' complaint on the ground that the action is barred by the statute of limitations, holding that the provisions of Section 28--01--16(1), North Dakota Century Code, bars the suit. From the order of dismissal, the plaintiffs have appealed to this court nad urge that the statute of limitations which should be applied in this case is Section 28--01--22, North Dakota Century Code. That section provides that actions for which no other limitations provision is made must be commenced within ten years after the cause of action accrues.

The action in this case is in the nature of an inverse condemnation proceeding. No part of the plaintiffs' property actually was taken by the defendants. The plaintiffs allege, however, that as a result of the construction of the viaduct and the reconstruction of the intersection, the plaintiffs' property suffered consequential damages, among which we find the claim that the plaintiffs' store was made less accessible to the public; that the plaintiffs' store front was constantly fouled and splattered by street mud and debris; and that persons patronizing the plaintiffs' business in wet weather were constantly in danger of being splashed with mud by passing traffic, thus injuring the plaintiffs' business. The plaintiffs allege that, as a result of the construction of the viaduct and the reconstruction of the intersection, their property was damaged and their business was lessened to the extent that they were forced to discontinue their business.

Section 14 of the North Dakota Constitution provides, in part:

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

See also Section 23--15--22(3), North Dakota Century Code.

Thus the law provides for damages to an owner of property which will be or is damaged by the construction of an improvement, although no part of such property is taken. We have held on numerous occasion that under this constitutional provision an owner may maintain an action for the consequential damages to property not taken which result from a public use. Jamestown Plumbing & Heating Co. v. City of Jamestown, 164 N.W.2d 355 (N.D.1968).

The provisions of this section of the Constitution are not restricted to eminent domain proceedings. It has been held that this section applies also to cases where property is damaged without the consent of the owner, even though no condemnation proceedings have been started. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808 (1942). Before considering this case on its merits, therefore, we must determine whether the statute of limitations bars recovery of the damages claimed to have been suffered by the plaintiffs.

In Donaldson, supra, the action was for consequential damages to the plaintiff's property resulting from the establishment and operation of a city dump near the plaintiff's home, causing the atmosphere to be so badly fouled that plaintiff and his family no...