Donald Robert Cossette, individually, and Donald Robert Cossette and Marjorie Cossette as Co-Trustees of the Angela R. Cossette Revocable Living Trust dated November 21, 2002, Plaintiffs and Appellants
Cass County Joint Water Resource District, Defendant and Appellee
from the District Court of Cass County, East Central Judicial
District, the Honorable Steven L. Marquart, Judge.
IN PART, REVERSED IN PART, AND REMANDED.
Jonathan T. Garaas, Fargo, N.D., for plaintiffs and
Christopher M. McShane, West Fargo, N.D., for defendant and
1] Donald Cossette and the Angela R. Cossette Revocable
Living Trust appeal a district court order dismissing their
complaint against the Cass County Joint Water Resource
District. The Cossettes requested declaratory relief and
appealed from the District's resolution of necessity
relating to the District's intent to acquire an interest
in the Cossettes' real property through eminent domain.
We affirm that part of the district court order dismissing
the Cossettes' request for declaratory relief. We reverse
that part of the district court order concluding the
Cossettes were not entitled to appeal the District's
resolution of necessity, and remand.
2] Red River Valley governmental authorities, including the
District, designed a flood control and protection project
referred to as the Diversion Project. The District is
responsible for obtaining property rights in North Dakota
necessary for the Diversion Project. The Cossettes own
approximately eighty acres of farmland in the Red River
Valley. Representatives acting on behalf of the District
notified the Cossettes in January 2016 that their property
may be affected by the Diversion Project and "that some
type of easement rights may be necessary." The Cossettes
also were notified their property would be inspected by an
appraisal company. In March 2016 the District notified the
Cossettes it would "be acquiring your property... for
the proposed construction of the [Diversion Project], "
and offered to purchase the property for $476, 040. The
Cossettes rejected the District's offer.
3] In May 2016 the District passed a resolution of necessity
determining the Cossettes' property was necessary for the
Diversion Project and the District intended "to acquire
a Permanent Right of Way Easement over, across, and through
the [Cossettes'] Property." The resolution also
indicated the District "will proceed with the requisite
legal proceedings as necessary... to acquire a Permanent
Right of Way Easement over, across, and through the
4] After the District passed the resolution of necessity the
Cossettes sued the District seeking a declaration that the
District acted inappropriately in passing the resolution of
necessity. The Cossettes' complaint also appealed the
District's resolution of necessity to the district court,
claiming the resolution was based on false representations
and was passed without legal authority.
5] The District moved to dismiss the Cossettes'
complaint, arguing their request for declaratory relief was
improper because it cannot be combined with an appeal from
the District's resolution of necessity. The District also
argued the resolution of necessity was not appealable because
the Cossettes were not aggrieved by the resolution. The
district court agreed and issued an order dismissing the
6] The district court dismissed the Cossettes' complaint
under N.D.R.Civ.P. 12(b)(6). "A motion to dismiss a
complaint under N.D.R.Civ.P. 12(b)(vi) tests the legal
sufficiency of the claim presented in the complaint."
Brandvold v. Lewis & Clark Pub. Sch. Dist., 2011
ND 185, ¶ 6, 803 N.W.2d 827 (quoting Vandall v.
Trinity Hosps., 2004 ND 47, ¶ 5, 676 N.W.2d 88). In
reviewing an appeal from a Rule 12(b) dismissal, the
complaint is construed in the light most favorable to the
plaintiff, taking as true the well-pleaded allegations in ...