Square Butte Elec. Co-op. v. Dohn

• Decision Date: 27 June 1974
• Docket Number: No. 8989,8989
• Citation: 219 N.W.2d 877
• Parties: SQUARE BUTTE ELECTRIC COOPERATIVE, Plaintiff and Appellee, v. Robert J. DOHN et al., Defendants, and E. Gene Hilken, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 877

219 N.W.2d 877

SQUARE BUTTE ELECTRIC COOPERATIVE, Plaintiff and Appellee, v. Robert J. DOHN et al., Defendants and E. Gene Hilken, Defendant and Appellant.

Civ. No. 8989.

Supreme Court of North Dakota.

June 27, 1974.

Syllabus by the Court

1. In an application for a permit to enter upon private property for the purpose of making a survey, including limited testing of the soil, in conjunction with a possible future taking under the power of eminent domain, the condemning party is required only to show that it is in the category of persons entitled to seek eminent domain, and it is not required to show prior to the commencement of an eminent-domain action that the specific land sought to be surveyed will be compatible with the greater public benefit and the least private injury.

2. Since in its affidavit in support of its motion the condemnor demonstrated that it was a North Dakota electric cooperative corporation, duly organized under the laws of this State and authorized to do business herein; that it enjoyed the privileges granted to such a corporation, including the right of eminent domain; that it planned to construct an electric generating plant and power line for the transmission of electricity; that it was necessary to conduct surveys and testing to determine the probable routing of such a transmission line, the condemnor established a sufficient basis for an appropriate order permitting such a survey and limited testing under reasonable conditions and with reasonable protection to the landowner.

3. For reasons stated in the opinion, it is concluded that the trial court's failure to request a court reporter to make a record of the proceedings in conjunction with an application for a permit to enter upon the property of a landowner to survey the land and test the soil in conjunction with a possible future taking under the power of eminent domain did not constitute a deprivation of the landowner's rights under Sections 1, 14, 20 and 22 of the North Dakota Constitution, or Sections 27--06--03 and 28--27--07, N.D.C.C.

Loren L. Johnson, Johnson, Johnson & Devine, P.C., Lakota, for plaintiff and appellee.

Carma Christensen, Christensen, Christensen & Baer, Bismarck, for defendant and appellant.

ERICKSTAD, Chief Justice.

E. Gene Hilken appeals from an order of the district court dated December 12, 1973.

The pertinent part of that order reads:

'ORDERED That good cause has been shown and the Plaintiff is hereby granted permission to enter upon the lands of the Defendants, hereinafter described, for the purpose of making surveys, including soil testing and ground resistance measurements, and such other work as may be reasonably necessary, subject to the following general restrictions:

'1. That the Plaintiff must proceed in the manner which provides the least private injury, and subject to the provisions of Section 32--15--21 of the North Dakota Century Code.

'2. That the Defendants shall be given reasonable notice to enter on their property, with such notice given either by letter or personal contact.

'3. That the Plaintiff be required to make entry in a manner that will insure that livestock will not escape, and that the Plaintiff, their employees and agents be required to leave gates and fences in the manner in which they were found, at the time of entry.

'4. That the plaintiff's survey be restricted to the general area of the proposed taking.

'5. That there shall be no cutting of trees on the property of the Defendants.

'6. That the Plaintiff be required to file a map or drawing showing the area over which the proposed power line will be built, and that the Plaintiff be restricted in conducting a survey to the general area of the proposed taking, which map is attached hereto and made a part hereof.'

This order granted the motion made by the plaintiff Square Butte Electric Cooperative, whom we shall hereinafter refer to as Square Butte, in which it requested an order authorizing it to enter upon lands owned by various named defendants, including the appellant E. Gene Hilken, for the purpose of making surveys, soil testing and ground-resisting measurements, pursuant to Section 32--15--06, N.D.C.C.

In the affidavit supporting the motion it is stated:

'1. That the Plaintiff, Square Butte Electric Cooperative, is a North Dakota electric cooperative corporation, duly organized, and has been granted the authority to do business in North Dakota as such by the Honorable Ben Meier, Secretary of State of the State of North Dakota.

'2. That as such, the Plaintiff enjoys the privileges granted to such corporations of the rights of eminent domain and entry upon lands for survey purposes as set forth in Chapter 32--15 of the North Dakota Century Code.

'3. That the Plaintiff has entered into a series of agreements whereby it has contracted to construct, at Nelson Lake in Oliver County, North Dakota, an electric generating plant, consisting of generation station and supporting transmission lines, for the purpose of furnishing electric power to the Minnesota Power and Light Company at Duluth, Minnesota, and also to other contract purchasers, including the Minnkota Power Cooperative, Inc. of Grand Forks, North Dakota.

'4. That such generating station will be known as Center No. 2, and will be located adjacent to the Center No. 1 unit of the Milton R. Young station, operated by the Minnkota Power Cooperative, Inc. at Nelson Lake in Oliver County, North Dakota.

'5. That the Minnkota Power Cooperative, pursuant to the operation of its Center No. 1 unit, has existing transmission line facilities, consisting of a 230 RV transmission line running from the Center plant to Fargo, North Dakota, and also interconnections with a 230 RV transmission line running from Stanton, North Dakota, to the Mandan, North Dakota area.

'6. That in addition to such existing transmission facilities, there will be built further transmission facilities, consisting of a DC transmission line running from the Center No. 2 plant to the Duluth, Minnesota area, and that such line will include substation facilities and converter station for converting AC power to DC power at the Center area site.

'7. That the lands owned by the Defendants as listed in the Motion constitute probable locations for the DC transmission line as a part of its routing from the Center, North Dakota area to Duluth, Minnesota.

'8. That such transmission lines will be built on steel towers of single pole construction, each tower being approximately three feet six inches (3 6 ) square at its base, an that approximately seven (7) such towers per mile will be needed to support said transmission line.

'9. That application is now being sought for the Order of the above named Court for permission to enter upon the lands of the Defendants for the purpose of making surveys and for the purpose of determining the suitability of these lands for locating thereon the necessary facilities of the Plaintiff in the connection with construction of the Center No. 2 unit and related transmission facilities.'

In resisting the motion, Hilken in a return filed by his counsel asserted:

'1. That he is one of the Defendants named in the above entitled action;

'2. That he owns land as described in the Plaintiff's motion--namely the West One-half and the Northeast Quarter of Section 28, located within Burleigh County;

'3. That the Plaintiff has no right under eminent domain to take the property for the purposes stated in their motion; that the actions of the Plaintiff are unreasonable and without legal justification or excuse. The Defendant further answers that he does not have information sufficient to admit or deny Plaintiff's allegations contained in their affidavit, specifically numbers 1 through 8, but does admit that the Plaintiff is now seeking an order of the court for permission to enter upon the lands of the Defendant;'

On appeal Hilken contends (1) that Square Butte failed to establish sufficient cause to justify the granting of its motion, and (2) that his constitutional rights were denied to him in the trial court's failure to make a record of the hearing and in its failure to enjoin Square Butte from entering upon the defendant's premises.

The following sections or parts thereof of the North Dakota Century Code are pertinent to a determination of the merit of the first contention.

'32--15--01. * * * Eminent domain is the right to take private property for public use. 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. * * *'

'32--15--02. * * * Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses:

'10. Oil, gas, and coal pipelines and works and plants for supplying or conducting gas, oil, coal, heat, refrigeration, or power for the use of any county, city, or village, or the inhabitants thereof, together with lands, buildings, and all other improvements in or upon which to erect, install, place, maintain, use, or operate pumps, stations, tanks, and other machinery or apparatus, and buildings, works, and plants for the purpose of generating, refining, regulating, compressing, transmitting, or distributing the same, or necessary for the proper development and control of such gas, oil, coal, heat, refrigeration, or power, either at the time of the taking of said property or for the future proper development and control thereof; * * *'

'32--15--04. * * * The private property which may be taken under this chapter includes:

'1. All real property belonging to any person;

* * * '32--15--05. * * * Before property can be taken it must appear:

'1. That the use to which it is to be applied is a use authorized by law;

'2. That the taking is necessary to such use; * * *

* * *'

'32--15--06. Entry for making surveys.--In all cases when land is required for public use, the person or corporation, or his or its agents, in...