Robert W. Irwin and Donna Irwin, Plaintiffs and Appellants
City of Minot, Defendant and Appellee
Appeal from the District Court of Ward County, North Central Judicial District, the Honorable William W. McLees, Judge.
Richard P. Olson (argued), Andrew Forward (appeared), and Rebecca L. Hoglund (on brief), Minot, ND, for plaintiffs and appellants.
Richard H. McGee (argued) and Sara E. Ruliffson (on brief), Minot, ND, for defendant and appellee.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers. Opinion of the Court by VandeWalle, Chief Justice. Sandstrom, Justice, concurring specially.
VandeWalle, Chief Justice.
[¶1] Robert and Donna Irwin appealed from a summary judgment dismissing their inverse condemnation claim against the City of Minot. We reverse and remand for further proceedings.
[¶2] Robert and Donna Irwin own 8.12 acres of property located in Ward County. In 2011, the Souris River in Ward County flooded. The City of Minot (" City" ) acted to combat the flood by constructing emergency earthen dikes running along municipal streets. Contractors were hired by the City to remove clay to construct the dikes from Darrell Sedevie's property, whose land bordered the Irwins' property. The City contracted with Sedevie for removal of the clay, and paid sixty-five cents per cubic yard for 20,000 cubic yards of clay. The contractors entered the Irwins' land to access the Sedevie property, removed an undetermined amount of clay and topsoil from both the Sedevie and Irwin properties, and used the materials to construct the emergency dike. Damage to the Irwins' property included destruction of a cement slab, barn, damage to a fence, and destruction of native prairie grassland. The City did not contract, obtain permission, or pay compensation to the Irwins for removal of the clay from their property.
[¶3] The Irwins filed a claim against the City alleging inverse condemnation under Article I, Section 16 of the North Dakota Constitution, and moved for summary judgment. They argued the City took deliberate action to remove soil and damage the property, the clay was removed for public use, the removal of the clay was the proximate cause of the damage to their property, and any defense that the City was acting under its police power or is protected from suit through sovereign immunity is inapplicable. The City moved for summary judgment to dismiss the claim. The City argued that the contractor's removal of the clay was an exercise of its police power to act in a sudden emergency and did not constitute a taking under eminent domain. The City also argued it was not authorized to compensate the Irwins as a matter of law in exercising its police powers, and is statutorily immune from liability for damages resulting from the contractor's actions.
[¶4] The district court granted the City's motion for summary judgment. In its findings, the district court stated the City's actions did take and damage the Irwins' property without compensation, but the City acted under its police power in an emergency rather than under the power of eminent domain, and the action to protect the health, safety, and general welfare of its citizens did not require compensation to property owners. The Irwins' subsequent motion for supplemental findings or reconsideration of the judgment was denied.
[¶5] The party moving for summary judgment must show that there are no genuine issues of material fact and that the case is appropriate for judgment as a matter of law. Beckler v. Bismarck Public School Dist.,2006 ND 58, ¶ 7, 711 N.W.2d 172. We review a district court's grant of summary judgment de novo, and examine the evidence in a light most favorable to the opposing party. Knutson v. ...