Minot Sand & Gravel Co. v. Hjelle

• Court: North Dakota Supreme Court
• Writing for the Court: ERICKSTAD, C.J., VOGEL and PAULSON, JJ., and ALFRED A. THOMPSON
• Citation: Minot Sand & Gravel Co. v. Hjelle, 231 N.W.2d 716 (N.D. 1974)
• Decision Date: 19 November 1974
• Docket Number: No. 9062,9062
• Parties: MINOT SAND AND GRAVEL COMPANY, a corporation, Plaintiff-Appellant, v. Walter R. HJELLE, Highway Commissioner of the State of North Dakota, and Stateof North Dakota, Defendants-Appellees. . July, 9, 1975. Syllabus by the Court 1. Although State of North Dakota, as congressional grantee, is owner of easement for right of way for distance of two rods from each section line in State, landowner abutting section line is owner of fee simple to section line subject only to State's easement on behalf of public. 2. Where State uses metes and bounds description in acquiring property abutting and adjacent to section line easement in eminent domain proceedings, the State does not become fee simple owner of the property lying within the section line easement, even though the State acquires a fee simple to the abutting and adjacent property. 3. Inherent in State's easement on section line for right of way is State's right to subjacent and lateral support for any public way thereon. 4. Trial court, in eminent domain action, erred in excluding evidence proffered by fee owner, whose land abutted section line, which evidence tended to establish a taking or deprivation, under the power of eminent domain, of landowner's interest in aggregate underlying section line. 5. Where landowner's property abutting section line is taken through power of eminent domain, question of how landowner's interest in known aggregate under section line should be valued must be measured with evidence relating to the cost of its extraction, together with the possibility of reverting the use of the right of way easement to the landowner. 6. Factors which properly enter into valuation of property subject to eminent domain proceedings should not include those factors which are so speculative or elusive as to defy rational analysis and application. 7. Although general rule is that statutes authorizing eminent domain should be strictly construed in favor of condemnee, courts must look to actualities in determining

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231 N.W.2d 716

MINOT SAND AND GRAVEL COMPANY, a corporation, Plaintiff-Appellant, v. Walter R. HJELLE, Highway Commissioner of the State of North Dakota, and Stateof North Dakota, Defendants-Appellees.

No. 9062.

Supreme Court of North Dakota.

July, 9, 1975.

Syllabus by the Court

1. Although State of North Dakota, as congressional grantee, is owner of easement for right of way for distance of two rods from each section line in State, landowner abutting section line is owner of fee simple to section line subject only to State's easement on behalf of public.

2. Where State uses metes and bounds description in acquiring property abutting and adjacent to section line easement in eminent domain proceedings, the State does not become fee simple owner of the property lying within the section line easement, even though the State acquires a fee simple to the abutting and adjacent property.

3. Inherent in State's easement on section line for right of way is State's right to subjacent and lateral support for any public way thereon.

4. Trial court, in eminent domain action, erred in excluding evidence proffered by fee owner, whose land abutted section line, which evidence tended to establish a taking or deprivation, under the power of eminent domain, of landowner's interest in aggregate underlying section line.

5. Where landowner's property abutting section line is taken through power of eminent domain, question of how landowner's interest in known aggregate under section line should be valued must be measured with evidence relating to the cost of its extraction, together with the possibility of reverting the use of the right of way easement to the landowner.

6. Factors which properly enter into valuation of property subject to eminent domain proceedings should not include those factors which are so speculative or elusive as to defy rational analysis and application.

7. Although general rule is that statutes authorizing eminent domain should be strictly construed in favor of condemnee, courts must look to actualities in determining extent of damages sustained by owner of property.

8. Term 'market value' as used in eminent domain valuation refers to 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. Section 24--01--01.1(23), N.D.C.C.

9. Independent evidence of price obtained as a result of sales of properties comparable to property subject to eminent domain is generally admissible as bearing on value of subject property, but such evidence is not admissible where foundation shows that comparability in the other properties is verily lacking.

10. Taking of property by State utilizing 'quick take' procedure authorized by Section 14 of the North Dakota Constitution and pursuant to Sections 24--01--18, 24-- 01--32, N.D.C.C., is by fee simple subject to certain statutory limitations.

11. State's right in known commercially valuable aggregate underlying section line (beyond its right to lateral and subjacent support for any public roadway thereon) does not extend beyond right to remove portion of said aggregate for necessary repair or construction of public way immediately above or adjacent to place where portion was removed, unless owner receives just compensation for the aggregate.

12. Expert witness giving opinion on value of property taken, either by denying use to owner or otherwise, is subject to cross-examination as to how the opinion was formulated, and the trier of facts determines the weight to be given to the opinion.

13. Expert witness testifying on value of property does not by so doing establish comparable sales as independent evidence but uses them, if he in fact did, to explain his own opinion as how he reached the value of the property in question.

14. Independent evidence by witness or expert witness as to value in which comparable sales are used, as independent evidence and not as a basis for the expert's opinion, must meet the standard of comparable sales before such evidence is admissible.

Bosard, McCutcheon, Kerian, Schmidt & Holum by E. Hugh McCutcheon, Minot, for plaintiff-appellant.

Norbert H. Lange, Sp. Asst. Atty. Gen., State Highway Dept., Bismarck, for defendants-appellees.

SAND, Judge.

The landowner appealed to this court from a Ward County district court judgment ¹ in a condemnation action and from denial of motion for a new trial.

The appellant landowner, Minot Sand and Gravel Company (hereinafter landowner), owns and works large open gravel pits located just west of the city limits of Minot, North Dakota. The landowner has been extracting commercially saleable sand, rock, and gravel (hereinafter aggregate) by the open pit method from the land on which the pits are located since 1927. The land on which the gravel pit operations conducted by the landowner take place is straddled by a north-south section line upon which a two-lane county road existed prior to the date of this action.

In April 1973, the appellees, Walter R. Hjelle, the State Highway Commissioner of the State of North Dakota, and the State of North Dakota (hereinafter both appellees will be referred to when the term 'State' is used) filed with the clerk of the Ward County district court an offer to purchase certain portions of the land upon which the landowner had his gravel pit operation, pursuant to the 'quick take' procedure authorized by Section 14 of the North Dakota Constitution and related statutes. Concomitant with the filing of the offer to purchase, the State also deposited the sum of $23,840 with the clerk of said court.

The landowner, pursuant to Section 24--01--22.1, North Dakota Century Code, timely appealed the notice of taking, and the matter was tried to a Ward County jury on November 19, 1974, which jury awarded the landowner the sum of $50,120.00 for the taking. The landowner moved for a new trial, which was denied, whereupon this appeal followed.

The trial judge, in what may be considered a case of first impression in this State (the parties treated it as such), had a novel, complex situation with only limited or sketchy precedent available to him.

The need for, or the utilization of, modified or new factors, in determining the value of property in eminent domain or condemnation proceedings within the willing buyer and willing seller formula, correspondingly increases with the varied or new uses made of property. This is particularly true where the use involves the removal or extraction for use or sale of a portion of the land itself.

The landowner has raised a great number of issues for our review on this appeal, but (due to our ultimate disposition of this appeal) it is not necessary that we separately consider each of those issues. ² Some of those issues can be consolidated and some are not relevant to our decision in this case.

We now address ourselves to the issue whether or not the State acquired a fee simple of the property lying within the section line easement.

In the instant case the State, pursuant to the provisions of Section 14 of the North Dakota Constitution, and related statutes, has taken, through the exercise of its power of eminent domain, a fee simple title to landowner's property abutting and adjacent to the section line easement in question for a distance of approximately one-quarter mile along the east side of the section line and approximately one-half mile along the west side of the section line. (Exact figures on distance, etc., are not significant here to resolve the issues involved.) The property taken was described by metes and bounds.

The landowner contends that the State, as the new owner or substituted fee owner of the abutting and adjacent property, by operation of law, became the fee owner of the property within the section line easement to the center of the section line at any point where the taken property abutted the section line. The landowner also argues strenuously that the State has taken, without due process of law guaranteed by Section 22 of the North Dakota Constitution and without just compensation, the landowner's fee interest in hundreds of thousands of tons of commercially valuable aggregate underlying the section line easement contiguous and adjacent to the landowner's condemned abutting property.

The extent and nature of ownership of section line highways was set forth by this court in Lalim v. Williams County, 105 N.W.2d 339, 343 (N.D.1960), when we said:

"* * * there can be no question but that no proceedings are necessary to establish a highway on a section line. In other words, we believe that the territorial Legislature (Chapter 33 Laws Dakota Territory 1871) by accepting the federal grant (U.S.Rev.St. § 2477; Comp.St. § 4919) established a system of highways upon all the section lines in the state, as far as it is practicable to use them for highway purposes.' Huffman v. Board of Supervisors, West Bay Township, Benson County, 47 N.D. 217, 182 N.W. 459, 461.

'The legislature has declared that outside of the limits of incorporated cities and villages congressional section lines shall be considered public roads to be open to the width of two rods on each side of such lines. Section 24--0703, NDRC 1943. It is clear that at the time the deed was given a public highway already existed along and for two rods on each side of the section lines. The right of the public was in the nature of an easement for a right of way which was first vested in the Territory of Dakota and later in its successor, the State of North Dakota, and held in trust for the benefit of the public. 25 Am.Jur., Highways, Secs. 133, 134; 39 C.J.S. Highways § 136. The adjacent landowner continued to be the owner of the fee subject to the easement on behalf of the public. Rutten v. Wood, 79 N.D. 436, 57 N.W.2d 112; Wallentinson v. Williams County, N.D., 101 N.W.2d 571.' (Emphasis supplied.)

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