Northern Pac. Ry. Co. v. Morton County

• Decision Date: 21 April 1964
• Docket Number: No. 8077,8077
• Citation: 131 N.W.2d 557
• Parties: NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Plaintiff and Appellant, v. MORTON COUNTY, North Dakota, a Public Corporation, State of North Dakota, North Dakota State Highway Department, and A. W. Wentz, as State Highway Commissioner, Defendants and Respondents.
• Court: North Dakota Supreme Court

Page 557

131 N.W.2d 557

NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Plaintiff and Appellant, v. MORTON COUNTY, North Dakota, a Public Corporation, State of

North Dakota, North Dakota State Highway

Department, and A. W. Wentz, as State

Highway Commissioner,

Defendants and Respondents.

No. 8077.

Supreme Court of North Dakota.

April 21, 1964.

On Rehearing Dec. 3, 1964.

Syllabus by the Court

1. Pursuant to the provisions of Section 22 of the Constitution, and permission granted by Section 32-12-02, N.D.C.C., the State had consented that it or its agencies may be sued in cases 'arising upon contract.'

2. Section 32-15-22(3), N.D.C..C., provides, in effect, for 'consequential damages,' if the property, no part of which is taken, will be damaged by the construction of a public improvement.

3. An action to recover damages to property, no part of which is taken, claimed to have been damaged by the State or its agencies in constructing a public improvement, is an action arising upon contract.

4. The North Dakota Rules of Civil Procedure are applicable to and constitute the rules of practice in a civil action brought to recover compensation for damages to private property alleged to have been caused by the construction of a proposed public improvement, though no part thereof is taken. Sections 32-15-33 and 32-15-22, N.D.C.C.

5. Where an owner seeks to recover damages to property claimed to have been damaged by the construction of a public improvement, though no part of the property claimed to have been damaged is taken, and the sovereignty denies its public improvement or the construction thereof caused the damage alleged, the issue of cause is triable of right by a jury, if either party demands a trial by jury.

6. Section 32-15-22(3) is construed to require that a jury, if it is not waived, must 'ascertain * * * If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement,' and 'assess * * * the amount of such damages' if it first finds the property is damaged by the improvement.

7. Where plans and specifications for improving a county road were prepared by the county engineer subject to the approval of the State Highway Department, and where the County acquired the land for such highway improvements, and where the county engineer had supervision of making of such improvements, and where the State Highway Department entered into the contract, for the making of the repairs, for the purpose of qualifying such project for Federal matching funds, the County and the State would be jointly liable for any damage to private property resulting from the public use of such property.

8. Where plaintiff brought action on contract for damages against two parties who are jointly liable, if liability is established, and the court erroneously dismisses the action against one party defendant and permits issue to be determined by a jury as to the other party defendant, and the jury returns a verdict for a dismissal of the plaintiff's cause of action against the remaining party defendant and separate judgments of dismissal are entered, and where it is found on appeal from both judgments that the rights of the parties are so intermingled that injustice might result from a new trial as to the party erroneously dismissed from the action, the error permeates the entire case and a new trial will be granted against both parties defendant. Section 28-27-29, N.D.C.C.

9. It was improper for the trial court to mention in the instructions in this case an issue which he did not submit to the jury but, considering the charge as a whole, such mention did not constitute prejudicial error. Froh v. Hein, 76 N.D. 701, 39 N.W.2d 11.

10. The Constitution and the statutes, providing that private property shall not be damaged for a public use without just compensation being paid the owner, place the burden upon the property owner to established by a fair preponderance of the evidence that the public use is the proximate cause of the damage complained of.

Conmy, Conmy & Feste, Fargo, for plaintiff and appellant.

William C. Kelsch, State's Atty. of Morton County, and C. J. Schauss, Mandan, for defendant and respondent Morton County.

Helgi Johanneson, Atty. Gen., Jon R. Kerian, Asst. Atty. Gen., and David L. Milhollan and Francis Breidenbach, Sp. Asst. Attys. Gen., Bismarck, for defendants and respondents State, N. D. State Highway Dept. and State Highway Comr.

TEIGEN, Judge (on reassignment).

The object of this action is to recover compensation from the defendants for damages to the plaintiff's railroad grade and track.

The plaintiff in its complaint alleges that on or about October 10, 1957, the defendants were reconstructing and altering a road and, in doing so, caused and permitted great quantities of earch to be thrown upon and against plaintiff's adjoining grade and tracks, damaging its grade and tracks in the sum of $6,949.95.

The evidence discloses a landslide occurred in an area between the road being reconstructed and altered on the side of a bluff and the Heart River below. The plaintiff's railroad track is located below the road and is located between said road and the Heart River. The landslide moved the plaintiff's railroad track about 14 feet laterally eastward toward the river and vertically downward about five feet. The plaintiff also alleges its damage was 'because of and as a consequence of' the reconstruction and alteration of the road by the defendants. It claims it is entitled to compensation under Section 14 of the North Dakota Constitution as its property was damaged for a public use. Negligence is not alleged and is not an issue in this action.

The defendants answered separately denying the damage alleged in plaintiff's complaint was caused by the improvement.

The defendant W. H. Noel and Company was dismissed from the action by an order of the court before trial. No appeal has been taken from that order.

The remaining defendants made a demand for a jury trial pursuant to Rule 38, North Dakota Rules of Civil Procedure.

A jury trial was held. At the close of the plaintiff's case, the court granted the motion of the defendant Morton County for a dismissal of the plaintiff's action against it without prejudice. The trial was completed and the jury returned a verdict dismissing the plaintiff's cause of action against the remaining defendants, which were the State of North Dakota, North Dakota State Highway Department, and A. W. Wentz as State Highway Commissioner.

This appeal is from the judgment entered on the verdict in favor of the State of North Dakota, the State Highway Department, and A. W. Wentz as State Highway Commissioner, and also from the judgment entered in favor of the defendant Morton County.

The road involved is generally known as the 'Old Fort Lincoln Road.' It commences in the City of Mandan, North Dakota, and extends in a southeasterly direction along the Heart River and subsequently parallel to the Missouri River. It is designated as 'Morton County Highway No. 20' and for the purpose of reconstruction and alteration was designated Federal Secondary Route 558. By Chapter 20 of the 1957 Session Laws, the State Legislature appropriated $38,000 for the construction by the State Highway Department of approximately five miles of bituminous surfaced highway of Federal Aid Secondary Route 558 from its junction with Highway No. 10 in Mandan, North Dakota, to the south boundary line of Fort Lincoln State Park, according to specifications of the State Highway Department. Plans and specifications for the improvement, however, were prepared by Morton County, which plans and specifications were approved by the North Dakota State Highway Department. A contract was entered into between the State Highway Department and Morton County by which Morton County agreed to prepare all plans and specifications necessary for the reconstruction, acquire the necessary right of way, and do all things necessary for the supervision and construction of the project. The project was constructed under the direct supervision of the Morton County engineer. The State Highway Department entered into a contract with the defendant W. H. Noei and Company, and road construction contractor, to build the road. Payment for the construction was to be made by the State Highway Department from funds appropriated by the Legislature and from Federal aid money available for the purpose.

Plans and specifications prepared by the county engineer for this project provided for the construction of a parking area adjacent to the road for a distance of about 800 feet located generally between Stations 207 and 215. The landslide occurred in the approximate location of Station 211. In this area the road ran along the side of a bluff, which is common terrain along the Heart and Missouri Rivers. The road is elevated above the Heart River. Its delta is the bottom lands and the road commands a view of these areas, including the Missouri River in the distance. The parking area was intended to serve as a place where mororists could park to view the scenery. The plaintiff's railroad track ran immediately below Station 211 parallel with the road and also parallel with the Heart River a short distance east of the tracks. The parking area was constructed by moving dirt from the upper slope of the bluff on the west of the road to the downslope area on the east side of the road. Thus the back slope on the west side of the road was cut down and the slope on the east side of the road was built up to form the parking area. The parking area was nearly complete. Approximately 36,000 tons of dirt had been moved from the west side to the east side of the road. It was located above the plaintiff's railroad tracks.

On the 10th day of October, 1957, a slide occurred in the general vicinity of this parking are. It resulted in a vertical and horizontal displacement of the road and the parking area. The road and...