Southeast Cass Water Resource Dist. v. Burlington Northern R. Co.

• Citation: 527 N.W.2d 884
• Decision Date: 08 February 1995
• Docket Number: No. 940106,940106
• Parties: SOUTHEAST CASS WATER RESOURCE DISTRICT, a political subdivision of the State of North Dakota, Plaintiff and Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware Corporation, Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 884

527 N.W.2d 884

SOUTHEAST CASS WATER RESOURCE DISTRICT, a political

subdivision of the State of North Dakota, Plaintiff and Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware

Corporation, Defendant and Appellant.

Civ. No. 940106.

Supreme Court of North Dakota.

Feb. 8, 1995.

Steven E. McCullough, Ohnstad Twichell, West Fargo, for plaintiff and appellee.

Daniel J. Crothers, Nilles, Hansen & Davies, Ltd., Fargo, for defendant and appellant.

Julie Ann Krenz, Asst. Atty. Gen., Atty. General's Office, Bismarck, for amicus curiae, State of N.D. Submitted on brief.

MESCHKE, Justice.

Burlington Northern Railroad Company (BN Railroad) appeals from a summary judgment declaring it responsible for the costs of necessary modifications to its bridges and culverts to accommodate drainage improvements directed by the Southeast Cass Water Resource District (District) for Cass County Drain 45. We conclude that NDCC 61-16.1-42 constitutionally places upon BN Railroad the continuing responsibility for the costs of accommodating its track to necessary drainage improvements. We affirm.

I

Drain 45 was established in 1948 for part of Cass County at West Fargo along a natural channel. The drain intersects two railroad tracks operated by BN Railroad, a main line and a by-pass line. At both crossings, BN Railroad has existing openings under the tracks to accommodate the flow of water. Potential flooding in the drainage area, largely from increasing urbanization, caused the District to plan to deepen, expand, and widen Drain 45.

After the drain's improvement, BN Railroad's main line bridges and its by-pass line culverts will no longer accommodate the expected water flow, the District determined. The District notified BN Railroad to modify the bridges and culverts to accommodate increased runoff. If left unaltered, BN Railroad's bridges and culverts will artificially obstruct the expected flow through Drain 45 and cause water to back up into West Fargo in times of heavy precipitation, the District determined. The need to modify the drain, the bridges, and the culverts was not disputed by BN Railroad, but it did dispute who must bear the expense of the necessary changes to the bridges and culverts.

After negotiations failed, the District sought a declaratory judgment that BN Railroad was responsible under NDCC 61-16.1-42 "for the costs associated with making the necessary openings through its track[s] at the point where railroad track[s] and [the] drains intersect[ ]" to accommodate the increased water flow. By a partial summary judgment, the trial court concluded that NDCC 61-16.1-42 required BN Railroad to bear the costs of modifying the bridges and culverts, and ruled:

[T]he requirement contained in section 61-16.1-42 of the North Dakota Century Code that railroad companies pay for the costs of making, building and keeping in repair the necessary openings at the points where drains intersect with railroad tracks is an appropriate exercise of a valid police power; and ..., therefore, section 61-16.1-42 of the North Dakota Century Code does not violate the constitutional prohibition of taking or damaging private property without just compensation as found in section 16 of article I of the North Dakota Constitution.

After other pending claims were resolved, BN Railroad appealed this final summary judgment, claiming that the statute was wrongly construed to compel the railroad to modify its existing bridges and culverts without compensation and, if the statute did place the expense on the railroad, the statute is unconstitutional as a taking of private property for public use without just compensation.

II

Section 61-16.1-42 of the North Dakota Century Code directs:

Drains along and across public roads and railroads. Drains may be laid along, within the limits of, or across any public road or highway, but not to the injury of such road. In instances where it is necessary to run a drain across a highway, the state highway department, the board of county commissioners, or the board of township supervisors, as the case may be, when notified by the water resource board to do so, shall make necessary openings through the road or highway at its own expense, and shall build and keep in repair all required culverts or bridges as provided under section 61-16.1-43. In instances where drains are laid along or within the rights of way of roads or highways, the drains shall be maintained and kept open by and at the expense of the water resource district concerned. A drain may be laid along any railroad when necessary, but not to the injury of the railroad, and when it is necessary to run a drain across the railroad, the railroad company, when notified by the water resource board to do so, shall make the necessary opening through such railroad, shall build the required bridges and culverts, and shall keep them in repair.

(Emphasis added). BN Railroad argues this section is not intended to compel it to modify the bridges and culverts at its own expense.

BN Railroad urges that the phrase, "at its own expense," used in the part that describes a governmental unit's responsibility for the opening when a drain intersects a public road or highway, ¹ but omitted from the part that describes a railroad's responsibility when the drain intersects a railroad, indicates only that the railroad must do the work and is not financially responsible for the costs. According to BN Railroad, this interpretation of the statute is supported by the Legislature's defeat of a 1963 amendment to the precursor of NDCC 61-16.1-42 that would have added the phrase, "at its own expense," to the part of the statute that describes the railroad's responsibility when a drain intersects a railroad. ²

The District says NDCC 61-16.1-42 places responsibility upon the railroad not only to perform the work to modify its own bridges and culverts, but also to absorb the costs of that work. Because the statute does not authorize any reimbursement to the railroad company for doing the work, the District urges that the statute plainly means that the railroad must carry the costs. This, coupled with the lack of a procedure like that in NDCC 61-16.1-43 for cost-sharing by the district, the District says evidences an intention that the railroad is responsible for the costs of modifying its own structures. The District points out this court has already used this interpretation in State ex rel. Trimble v. Minneapolis, St. P. & S. S. M. Ry. Co., 28 N.D. 621, 150 N.W. 463 (1914), when we construed a forerunner to this statute.

Interpretation of a statute is a question of law that is fully reviewable by this Court. Zuger v. North Dakota Ins. Guar. Ass'n, 494 N.W.2d 135, 136 (N.D.1992). We first look to the language of the statute itself. Nesdahl Surveying & Eng'g v. Ackerland Corp., 507 N.W.2d 686, 688 (N.D.1993). Unless otherwise defined in the Code, words are given their plain, ordinary, and commonly understood meaning. Kim-Go v. J.P. Furlong Enterprises, Inc., 460 N.W.2d 694, 696 (N.D.1990). Only if the language of a statute is ambiguous will extrinsic aids be used to ascertain the Legislature's intent. Nesdahl at 689; NDCC 1-02-39. As we said in Zuger at 137, a statute is ambiguous if it is susceptible to differing, but rational, meanings.

BN Railroad and the District each offer rational but different meanings for this statute on a railroad's responsibility for the costs of changing bridges and culverts to accommodate drainage. BN Railroad reasonably argues that use of the "at its own expense" phrase in the part of the statute on highway-drain crossings and omission of that phrase from the part of the statute on railroad-drain crossings indicates an intent to save the railroad from the costs. On the other hand, the District reasonably argues that, because the statute is silent on any reimbursement to the railroad for the necessary work, the railroad is responsible for the costs of the work that the statute directs it to do. We conclude that the statute is ambiguous.

III

When a statute is ambiguous, we consider the legislative history in assessing the Legislature's intention. NDCC 1-02-39(3). BN Railroad argues the Legislature's defeat of the proposed 1963 amendment to the forerunner of NDCC 61-16.1-42, that would have added the phrase, "at its own expense," to the part of the section on a drain intersecting a railroad, shows the Legislature's intention that the railroad not absorb the costs of the work.

While a subsequent amendment to a statute may be useful sometimes to shed light on the intent of an earlier version of the statute, Effertz v. North Dakota Workers Compensation Bureau, 525 N.W.2d 691 (N.D.1994), legislative inaction is rarely helpful. In State ex rel. Spaeth v. Eddy Furniture Co., 386 N.W.2d 901, 904 (N.D.1986), we held a later Legislature's defeat of an amendment on the subject cannot evidence what a prior Legislature intended when it first enacted the statute. Since then, we have often pointed out that the defeat of a proposed amendment by a later Legislature does not help answer questions about the original intent of an enactment. Peterson v. McKenzie County School Dist. 1, 467 N.W.2d 456, 462 (N.D.1991); Coles v. Glenburn Public School Dist. 26, 436 N.W.2d 262, 264 n. 2 (N.D.1989). That reasoning applies here.

Any attempt to glean legislative intent from the actions of the 1963 Legislature would be especially futile in this case because diametrically different amendments to the forerunner of this section were defeated. See Footnote 2. One proposed amendment would have specified the railroad perform the work "at its own expense"; the other would have divided the costs of work on the railroad's crossings equally between the railroad and the water management district. Just as one could speculate that rejection of the "at its own expense" amendment indicates the Legislature's intention that the railroad should not be responsible for the cost,...