Montana-Dakota Utilities Co., a Division of MDU Resources Group, Inc., n/k/a Montana-Dakota Utilities Co., a Subsidiary of MDU Resources Group, Inc., Plaintiff, Appellant, and Cross-Appellee
Lavern Behm, Defendant, Appellee, and Cross-Appellant
from the District Court of Ward County, North Central
Judicial District, the Honorable Gary H. Lee, Judge.
Anthony J. Ford (argued) and Malcolm H. Brown (appeared),
Bismarck, N.D., for plaintiff, appellant, and cross-appellee.
M. Boughey, Mandan, N.D., for defendant, appellee, and
Montana-Dakota Utilities Co. ("MDU") appeals, and
Lavern Behm cross-appeals, from a judgment dismissing
MDU's eminent domain action. Because the district court
misapplied North Dakota law in concluding a taking was not
necessary for a public use, we reverse and remand for trial
on eminent domain damages to be awarded to Behm.
[¶2] MDU brought an eminent domain action under N.D.C.C.
ch. 32-15 to acquire an easement across Behm's property
for a 3, 000-foot natural gas pipeline to service a
Burlington Northern Santa Fe ("BNSF") railroad
switch. The railroad switch must be heated to keep it
operable during winter months. The switch is currently heated
using propane from tanks that are serviced and refilled by
truck. Winter weather occasionally prevents service trucks
from accessing the tanks to refill the propane. BNSF
requested service from MDU by gas pipeline, believing that
natural gas by pipeline would increase reliability and
decrease the cost associated with heating the switch. MDU
claimed that other routes for the pipeline would be too
expensive or might in the future require modification or
removal of the pipeline.
The district court bifurcated the proceedings between
necessity and damages. Following a bench trial, the district
court concluded that the "proposed pipeline is . . . a
use authorized by Section 32-15-02, NDCC," but that a
taking of Behm's property was not necessary for the
public use under N.D.C.C. § 32-15-05. Relying on an 1883
California case for the proposition that "necessity
cannot mean mere convenience," the court explained:
MDU's proposal is to place a 3000 foot pipeline beneath
Lavern Behm's property for the benefit of a single user,
Burlington Northern Santa Fe. While it is certainly not
subject to dispute that maintaining railway switches is a
necessity to the safe operations of the railroad, the
construction of this pipeline is not necessary for this
purpose. The current switch has been, and can continue to be
maintained through the use of propane. The proposed pipeline
serves only the convenience of a single user, Burlington
Northern Santa Fe, while imposing a permanent restriction on
Lavern Behm's use of his private property. The location
of the proposed pipeline further stretches the meaning of
necessity to mean mere convenience to MDU. That convenience
is not even a present convenience, but one of a future,
highly speculative convenience.
The proposed taking [of] Lavern Behm's property for the
purpose of this pipeline is thus premised on a project to
benefit a single user, Burlington Northern Santa Fe. It is to
be placed on Lavern Behm's property, a mere 5 feet from
the existing 33 foot section line right [of way]. That
placement is deemed necessary by MDU based on the speculative
fear of a future event which may never occur, and even if it
does, may not necessitate the repair or replacement of the
pipeline. The necessity proposed by MDU is nothing more than
its own mere convenience.
Contrasted to this are Lavern Behm's rights to own his
property and to farm or otherwise develop it as he sees fit,
without the burden of this easement. The burden on Lavern
Behm is immediate and permanent as opposed to the uncertain
and speculative necessity argued by MDU.
The Court therefore finds that the proposed taking and
pipeline route is not compatible with the greatest public
benefit when weighed against the immediate and permanent
private injury to Lavern Behm.
court further concluded that "[t]his one-sided analysis
by MDU, resolving all uncertainties and speculations in its
favor, and without consideration of Lavern Behm's rights
of ownership is arbitrary and capricious."
MDU argues the district court's ruling that the proposed
taking was not ...