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In re 2015 Application for Permit to Enter Land for Surveys

Supreme Court of North Dakota

August 18, 2016

In re: 2015 Application for Permit to Enter Land for Surveys and Examination Associated with a Proposed North Dakota Diversion and Associated Structures
v.
Steven Brakke; Colleen Brakke; Dorothy V. Brakke, as trustee of the Dorothy V. Brakke Revocable Living Trust under agreement dated April 3, 1980, as amended and as beneficiary and possible successor Trustee of the H. Donald Brakke Revocable Living Trust under agreement dated July 28, 1977, as amended; Paul E. Brakke; and H. Donald Brakke; K-F Farm Partnership; Christopher Narum; and Jeanne D. Narum, Defendants Cass County Joint Water Resource District, Plaintiff and Appellee Steven Brakke; Colleen Brakke; Dorothy V. Brakke, as trustee of the Dorothy V. Brakke Revocable Living Trust under agreement dated April 3, 1980, as amended and as beneficiary and possible successor Trustee of the H. Donald Brakke Revocable Living Trust under agreement dated July 28, 1977, as amended; Paul E. Brakke; and H. Donald Brakke, Appellants In re: 2015 Application for Permit to Enter Land for Surveys and Examination Associated with a Proposed North Dakota Diversion and Associated Structures Cass County Joint Water Resource District, Plaintiff and Appellee
v.
Glen Libbrecht; Danyeal Barta; Vance Barta; Laurie Brakke; Michael Brakke; Marilyn G. Libbrecht and Glen Libbrecht, Co-Trustees of the Catherine Libbrecht Trust; Annette Delaney; David Delaney; Derek S. Flaten; Micheal Fosse; Merry Lou Haakson; Kenneth W. Hatlestad; David Houkom; Douglas W. Johnson; Jeffrey K. Johnson; Martin Johnson; Douglas Kummer; Jacalyn Kummer, Jon Larson, Julie Larson; Brian T. Leiseth; Timothy J. Leiseth; Glen Libbrecht; Marilyn G. Libbrecht; Nancy Loberg; David L. Lotzer, James Martin, Marlys Martin; Anne Miller; Collin Miller; Roger Miller; Mari Palm and Robert Helbling, Co-Trustees of the MKRM Trust; Kelly Pergande; Kristie Sauvageau; Terry Sauvageau; Alan and Barbara Thurnberg, Co-Trustees of the Thunberg Living Trust; Kristine Valan; Orlen Valan, Jr.; Western Trust Company; Kayla M. Woodley, Defendants Mari Palm and Robert Helbling, Co-Trustees of the MKRM Trust; Michael Brakke; and Laurie Brakke, Appellants

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge., Honorable Douglas R. Herman, Judge.

          Christopher M. McShane (argued) and Andrew D. Cook (on brief), for plaintiff and appellee.

          Jonathan T. Garaas, DeMores Office Park, for defendants and appellants.

          OPINION

          Crothers, Justice.

         [¶ 1] In this consolidated appeal several landowners appeal from district court orders granting the Cass County Joint Water Resource District (District) permission to enter Landowners' property. The Landowners argue that the district courts lacked subject matter jurisdiction over the cases because the District failed to serve a summons and complaint, that soil borings and other tests are outside the scope of permitted examinations and they were entitled to a jury trial to determine just compensation. We affirm the district courts' orders.

         I

         [¶ 2] The District filed applications with the district court for permission to enter Landowners' property to conduct surveys, mapping and examinations required for evaluating and designing a proposed flood control project. The District stated the examinations and surveys may include drilling holes on certain properties to obtain subsurface soil samples. The Landowners objected, claiming the court was without jurisdiction to hear the applications. The Landowners claimed the District's proposed entry onto their property constituted a taking of private property under the North Dakota Constitution and the District should not be allowed the right to enter their property to conduct examinations and surveys until a jury determined appropriate compensation. After hearings the district courts granted the District permission to enter the Landowners' property and the Landowners appeal.

         II

         [¶ 3] The Landowners argue the district courts erred granting the District permission to enter their property because the courts were without jurisdiction to hear the applications. "To issue a valid order, a district court must have both subject-matter jurisdiction and personal jurisdiction over the parties." Alliance Pipeline L.P. v. Smith, 2013 ND 117, ¶ 18, 833 N.W.2d 464. "Subject-matter jurisdiction is the court's power to hear and determine the general subject involved in the action...." Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d 583. "Issues involving subject matter jurisdiction cannot be waived and can be raised sua sponte at any time." Earnest v. Garcia, 1999 ND 196, ¶ 7, 601 N.W.2d 260.

         [¶ 4] "For subject-matter jurisdiction to attach, 'the particular issue to be determined must be properly brought before the court in the particular proceeding.'" Albrecht, 1998 ND 132, ¶ 11, 580 N.W.2d 583. North Dakota Rules of Civil Procedure 12(h)(3) compels the district court to dismiss an action whenever it appears the court lacks jurisdiction of the subject matter. "When jurisdictional facts are not disputed, the issue of subject matter jurisdiction is a question of law, which we review de novo." In re Estate of Vaage, 2016 ND 32, ¶ 14, 875 N.W.2d 527.

         [¶ 5] The Landowners allege the North Dakota Rules of Civil Procedure required the District to commence the actions by serving eminent domain summons and complaints before the district courts could obtain jurisdiction. We disagree. The District sought permits to enter land under N.D.C.C. ch. 32-15 relating to eminent domain. "Except as otherwise provided... the provisions of the North Dakota Rules of Civil Procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this chapter." N.D.C.C. § 32-15-33. Rule 81(a), N.D.R.Civ.P., Table A, contains "a nonexclusive list of statutes pertaining to special statutory proceedings." Chapter 32-15, N.D.C.C., is included in N.D.R.Civ.P. 81(a), Table A. These special statutory proceedings "are excluded from [the] rules to the extent they are inconsistent or in conflict with the procedure and practice provided by these rules." N.D.R.Civ.P. Rule 81(a).

         [¶ 6] "[A] proceeding for a court order authorizing examinations and surveys under N.D.C.C. § 32-15-06 is 'preliminary to the condemnation action itself' and is not a condemnation proceeding." Alliance Pipeline L.P. v. Smith, 2013 ND 117, ¶ 15, 833 N.W.2d 464 (quoting Square Butte Elec. Co-op. v. Dohn, 219 N.W.2d 877, 883 (N.D. 1974)). Because a proceeding under N.D.C.C. § 32-15-06 is preliminary to condemnation, an eminent domain summons and complaint are not required. This is consistent with N.D.R.Civ.P. 81(a), Table A, stating N.D.C.C. ch. 32-15 is a special statutory proceeding exempt from the North Dakota Rules of Civil Procedure. Because the District was not required to commence these actions by service of a summons, the district courts did not lack subject matter jurisdiction over the District's applications for permits to enter the Landowner's property.

         III

         [¶ 7] The Landowners argue soil borings and other tests are beyond the scope of the examinations ...


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