Tormaschy v. Hjelle, 8884

• Decision Date: 13 August 1973
• Docket Number: No. 8884,8884
• Citation: 210 N.W.2d 100
• Parties: Ernest TORMASCHY and Elaine Tormaschy, Plaintiffs and Appellees, v. Walter R. HJELLE, State Highway Commissioner for the State of North Dakota, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 100

210 N.W.2d 100

Ernest TORMASCHY and Elaine Tormaschy, Plaintiffs and Appellees, v. Walter R. HJELLE, State Highway Commissioner for the State of North Dakota, Defendant and Appellant.

Civ. No. 8884.

Supreme Court of North Dakota.

Aug. 13, 1973.

Syllabus by the Court

1. A rule of constitutional and statutory construction is that words are to be given their plain, ordinary and commonly understood meaning.

2. The term 'right of way' as used in Section 14 of our State Constitution (as amended in 1956) includes land to be used as a sewage lagoon in conjunction with sanitary facilities at an Interstate Highway rest area.

Vernon R. Pederson, Sp. Asst. Atty. Gen., N.D., State Highway Dept., Bismarck, for defendant and appellant.

No appearance by appellees.

ERICKSTAD, Chief Justice.

The defendant, North Dakota State Highway Commissioner, appeals from a judgment of the district court of Stark County which permanently enjoins him from taking certain lands of the plaintiffs, Ernest and Elaine Tormaschy, under the quick-take provision of Section 14 of the North Dakota Constitution.

Section 14 reads:

'Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner. No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, Provided however, that when the state or any of its departments, agencies or political subdividions seeks to acquire right of way, it may take possession upon making an offer to purchase and by depositing the amount of such offer with the clerk of the district court of the county wherein the right of way is located. The clerk shall immediately notify the owner of such deposit. The owner may thereupon appeal to the court in the manner provided by law, and may have a jury trial, unless a jury be waived, to determine the damages.' N.D.Constitution.

Pursuant to the provisions of Section 14 and the statutory authority of the State Highway Commissioner in Title 24 of the North Dakota Century Code, the Commissioner, in June of 1972, sought to purchase from the Tormaschys 2.44 acres of land required to provide a sewage lagoon for the Green River rest area on Interstate Highway 94 in Stark County. The Tormaschys declined to sell such land at the price offered by the Commissioner ($375), whereupon the Commissioner deposited the amount of the offer with the clerk of the district court of Stark County and the clerk gave notice of the deposit to the Tormaschys as required by the quick-take provision of Section 14 of our State Constitution.

Thereafter the Tormaschys served the Commissioner with a complaint in district court praying for a judgment enjoining the Commissioner from proceeding with the condemnation. At the same time they caused a notice of appeal to be served on the Commissioner pursuant to Section 14, demanding a jury trial to determine the amount of compensation to which they were entitled by virtue of the taking. In support of their prayer for a preliminary injunction, the Tormaschys served on the Commissioner the affidavit of Ernest Tormaschy and an order to show cause. The Commissioner made his return to the order to show cause on July 17, 1972, incorporating therein a motion for a summary judgment dismissing the complaint for an injunction and attaching thereto the affidavit of Robert E. King, right-of-way engineer for the North Dakota State Highway Department. On July 21 at the conclusion of the hearing on the order to show cause, the trial court granted a temporary injunction without bond and denied the motion of the Commissioner for a summary judgment. On July 27, the Commissioner answered the original complaint and again moved for summary judgment. On October 5 he made a motion to vacate the temporary injunction and again moved for a summary judgment.

The trial court heard these motions on October 5 and thereafter on October 12 rendered its findings of fact, conclusions of law and order for judgment. The trial court found that there was no genuine issue as to any fact material to the disposition of the matter; concluded as a matter of law that land required to provide sanitary facilities for a highway rest area is not right-of-way within the contemplation of the quick-take provision of Section 14 of the North Dakota Constitution; and ordered summary judgment for the Tormaschys permanently restraining the Commissioner from taking the land under the quick-take provisions of Section 14.

The trial court filed no memorandum opinion and the Tormaschys have filed no brief in this court.

Does the term 'right of way' as used in Section 14 of our State Constitution (as amended in 1956) include land to be used as a sewage lagoon in conjunction with sanitary facilities at an Interstate Highway rest area? We believe it does.

To answer this question, we must construe Section 14 of our Constitution.

'The constitution of a State is subject to construction by the courts, whose duty it is to discover and to give effect to the intention of the people who adopted it.' State ex rel. Stockman v. Anderson, 184 N.W.2d 53, 56 (N.D.1971).

'(Any) questions must be answered, if possible, from the language of the constitutional provision itself but, if the language is ambiguous or the answer doubtful, then the filed of inquiry is widened and rules applicable to construction of statutes are to be resorted to. In fact, a wider filed of inquiry for information is proper where needed in construing constitutional provisions than legislative enactments.' Newman v. Hjelle, 133 N.W.2d 549, 556 (N.D.1965).

A rule of constitutional and statutory construction is that words are to be given their plain, ordinary and commonly understood meaning. Verry v. Trenbeath, 148 N.W.2d 567, 574 (N.D.1967).

Webster's Dictionary defines right-of-way as a 'right of passage over another person's ground'.

It is true that the Legislature had defined 'right of way' as early as 1953 as 'a general term denoting land, property, or interest therein, usually in a strip, acquired for or devoted to a highway.' S.L.1953, Ch. 177, Section 2, Subsection 37.

We do not believe, however, that restricting the...