Wells County Water Resource Dist. v. Solberg, 880275

• Decision Date: 16 January 1989
• Docket Number: No. 880275,880275
• Citation: 434 N.W.2d 577
• Parties: WELLS COUNTY WATER RESOURCE DISTRICT, Plaintiff and Appellee, v. Malvin SOLBERG, Delores Larson, Verna and LaVerne Johnson, and John A. Rogness, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 577

434 N.W.2d 577

WELLS COUNTY WATER RESOURCE DISTRICT, Plaintiff and Appellee, v. Malvin SOLBERG, Delores Larson, Verna and LaVerne Johnson, and John A. Rogness, Defendants and Appellants.

Civ. No. 880275.

Supreme Court of North Dakota.

Jan. 16, 1989.

Michael A. Dwyer (argued), Bismarck, for plaintiff and appellee.

Chapman & Chapman, Bismarck, for defendants and appellants; argued by Daniel J. Chapman.

MESCHKE, Justice.

We hold that an order upholding the public necessity of taking flowage easements in a condemnation suit is not final and, therefore, not appealable without NDRCivP 54(b) action by the trial court. Accordingly, we dismiss this appeal.

Since 1979, the Wells County Water Resource District has been developing the Heimdal Drain Project. In Larson v. Wells County Water Resource Board, 385 N.W.2d 480 (N.D.1986), we affirmed the decision of the District's Board approving a drain permit for the Project. Later, we held that the District could not use the "quick take" provisions of the North Dakota Constitution to acquire flowage easements for the Project. Johnson v. Wells County Water Resources Board, 410 N.W.2d 525 (N.D.1987).

After Johnson, the District sued to condemn construction and flowage easements for the Project. The landowners denied that the taking was authorized by law or necessary for public use under NDCC 32-15-05. Landowners sought a hearing on those issues. The trial court refused a hearing and ruled that "the public benefit and necessity has previously been established by the actions of the Wells County Water Resource District in the holding of public hearings in its ultimate decision" which were upheld upon judicial review in Larson v. Wells County Water Resource Board, supra. The trial court concluded this "constitute[d] the judicial determination required ... and sustain[ed] the public benefit and necessity of the flowage easements."

Before the trial on compensation took place, the landowners appealed. They argued that they should have a separate evidentiary hearing by the trial court on the public need for the proposed easements, without considering prior judicial approval of the Project.

Before oral argument, the landowners moved to remand for consideration of the effect of "Federal Swampbuster legislation whereby this project was denied exemption from the provisions of 7 CFR Part 12, Sec. 12.6." The District resisted the remand, arguing "further delay in the litigation process ... should not be permitted."

The District told us that it "has not resisted this appeal in order for landowners to have full opportunity for justice, and to avoid any further delay in this already long-delayed project." Without citing any relevant precedent, counsel for the landowners responded: "[I]t is not clear whether an Order denying the hearing is an appealable order or if it is an interlocutory order that should, properly, be part of any future appeal from the judgment that may be taken."

Even when the parties have not questioned the appealability of a matter, on our own initiative we have often dismissed an appeal when it was not ready for review. See Regstad v. Steffes, 433 N.W.2d 202 (N.D.1988); Gillmore v. Morelli, 425 N.W.2d 369 (N.D.1988) and cases cited therein. Although North Dakota has not had a set statutory standard of finality for appellate review, we have had a long tradition "that no appeal lies from a judgment that is interlocutory and not final. E.g., Anderson v. Bothum, 77 N.D. 678, 45 N.W.2d 488 (N.D.1950)." Regstad v. Steffes, 433 N.W.2d at 203. Today the final judgment doctrine is fixed in NDRCivP 54(b). Matter of Estate of Stuckle, 427 N.W.2d 96, 101 (N.D.1988) (Meschke, Justice concurring).

Where there are claims waiting to be decided by the trial court, and there has been no Rule 54(b) action by the trial court, an appeal will not normally be considered for jurisdictional reasons. Sargent County Bank v. Wentworth, 434 N.W.2d 562 (N.D. 1989); Regstad v. Steffes, supra; Matter of Estate of Stuckle, supra; Gast Construction Co. v. Brighton Partnership, 422 N.W.2d 389 (N.D.1988). "It is apparent from the wording of the rule that, in the absence of the express determination that there is no just reason for delay and an express direction for the entry of judgment, there is no final judgment." Regstad v. Steffes, 433 N.W.2d at 203. Since there were undecided issues of compensation in this case, and there was no Rule 54(b) action by the trial court, this order about public necessity was not final and was not appealable.

Our decision today is not merely an adult response of our maturing doctrine of finality. Nearly a decade ago, in another case which also involved counsel for these landowners, this court was asked to use its superintending power to lift a trial court's stay of a trial on compensation for a taking, after those landowners appealed an unfavorable trial court ruling on the public necessity of the taking. City of Williston v. Beede, 289 N.W.2d 235 (N.D.1980). This court granted the supervisory writ, vacated the stay, and directed the trial court "to proceed forthwith" to determine compensation. In doing so, we warned:

"[T]his court should exercise its original jurisdiction to, amongst other things, prevent unwarranted, complicated and bifurcated appeals to this court which do not promote the ends of justice.... [I]f each [condemnation] proceeding were to be bifurcated and appealed separately on the issues of necessity of taking and damages, our court, under the present structure, would not be able to cope with the situation." Id. at 238.

Speaking for this court,...