Northern Border Pipeline Co. v. 127.79, ETC., Civ. No. A4-81-82.

• Decision Date: 17 August 1981
• Docket Number: Civ. No. A4-81-82.
• Citation: Northern Border Pipeline Co. v. 127.79, ETC., 520 F.Supp. 170 (D. S.D. 1981)
• Parties: NORTHERN BORDER PIPELINE COMPANY, Plaintiff, v. 127.79 ACRES OF LAND, MORE OR LESS IN WILLIAMS COUNTY, NORTH DAKOTA; Richard D. Welty and Charlotte E. Welty, et al., and other unknown owners, Defendants.
• Court: U.S. District Court — District of South Dakota

520 F. Supp. 170

NORTHERN BORDER PIPELINE COMPANY, Plaintiff, v. 127.79 ACRES OF LAND, MORE OR LESS IN WILLIAMS COUNTY, NORTH DAKOTA; Richard D. Welty and Charlotte E. Welty, et al., and other unknown owners, Defendants.

Civ. No. A4-81-82.

United States District Court, D. North Dakota, Northwestern Division.

August 17, 1981.

Jane Fleck Romanov, Fleck, Mather, Strutz & Mayer, Ltd., Bismarck, N.D., for plaintiff.

Leroy A. Loder, Pringle & Herigstad, Minot, N.D., for defendants.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

The plaintiff, Northern Border Pipeline Company, has presented to the Court a motion for an order granting immediate possession of the right of way and easements sought with respect to Parcel Nos. WM030.0 and WM031.0 located in Williams County prior to the determination of the issue of just compensation. The defendants, who are the legal owners of the parcels which the plaintiff seeks to utilize prior to the determination of the issue of just compensation, oppose the motion.

The plaintiff is a general partner in a partnership consisting of the plaintiff, Northern Plains Natural Gas Company, Northwest Border Pipeline Company, Pan Border Gas Company, United Mid-Continent Company, and TransCanada Border Pipeline, Ltd. The plaintiff holds a Certificate of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission for construction of a natural gas pipeline from the Canadian Border to Ventura, Iowa. In its complaint, the plaintiff seeks to condemn a permanent easement for the pipeline itself as well as a temporary easement for construction of the pipeline.

In support of its motion, the plaintiff asserts that the Court has the authority under Rule 71A of the Federal Rules of Civil Procedure to grant immediate possession of the parcels to the plaintiff. The general purpose of Rule 71A is to provide a modern and effective procedure for condemnation actions and to supercede other federal procedural statutes concerning condemnation. However, the rule does not supercede the Declaration of Taking Act (Title 40 U.S.C. §§ 258a-258e) or any other statute authorizing the acquisition of title or the taking of immediate possession of the property to be condemned prior to the condemnation proceeding itself. United States v. 76,800 Acres, More or Less, of Land, In Bryan and Liberty Counties, Ga., 44 F.Supp. 653 (D.Ga.1942); United States v. 17,280 Acres of Land, More or Less, Situated in Saunders County, Nebraska, 47 F.Supp. 267 (D.Neb.1942).

Although the plaintiff possesses the authority pursuant to Title 15 U.S.C. § 717f(h) to exercise the right of eminent domain, this right is not in itself sufficient to authorize the taking of immediate possession prior to the condemnation proceeding itself. The authority to take immediate possession conferred by the Declaration of Taking Act and similar statutes which confer the authority to take immediate possession is reserved to the United States. No statutory authority exists which would authorize a private party, such as the plaintiff, to take immediate possession of the real property prior to the condemnation proceeding. Similarly, the authority to take immediate possession of the property cannot be implied in the mere grant to the plaintiff of the right to eminent domain because the language of Title 15 U.S.C. § 717f(h) is unequivocal. In addition, if an ambiguity were found in the statute the result would not change because statutes conferring the right of eminent domain are strictly construed to exclude those rights not expressly granted. See Nichols, The Law of Eminent Domain, Vol. 1 § 3.2132 (3rd Ed. 1980).

The plaintiff also contends that it is entitled to equitable relief and that the Court has the inherent authority to grant immediate possession of the real property to the plaintiff. In order that a cause may come within the scope of the Court's equity jurisdiction either the primary right which serves as the basis for the cause of action must be equitable rather than legal or the remedy sought must be equitable. If the legal remedy is inadequate, the court may exercise its equitable jurisdiction. Gilliard v. Carson, 348 F.Supp. 757 (D.Fla.1972). A further condition to the granting of equitable relief is that requirement that the party seeking the relief be subject to imminent, irreparable injury in the absence of a grant of equitable relief. Landry v. Daley, 288 F.Supp. 200 (D.Ill.1968). The inherent powers doctrine...