dissenting.
When this case was here before, the trial court had ordered summary judgment dismissing Arneson’s claim for failure to institute the action within the time permitted by the Political Subdivision Tort Liability Act, Chapter 295, S.L.1975. We reversed and remanded “for trial” because the complaint stated a cause of action based upon inverse condemnation. Arneson v. City of Fargo, 303 N.W.2d 515 (N.D.1981). We stated that Chapter 295, S.L.1975, does not apply to inverse condemnation actions.
The “trial” of an inverse condemnation case is a two-step process. The preliminary determination is made by the court, not as a matter of summary judgment but based upon the facts. See Guerard v. State, 220 N.W.2d 525 (N.D.1974). The court must determine whether or not there has been a “taking or damaging” within the scope of Article I, Section 16 of the North Dakota Constitution. Only if the court has determined that there has been a “taking or damaging” is there any question to be determined by a jury. United Power Ass’n v. Heley, 277 N.W.2d 262 (N.D.1979).
There may be many benefits in the trial court when this two-step process is commingled but from an appellate, hindsight perspective, I see nothing but advantage to bifurcation. Here, where there appears to be two separate actions by Fargo alleged to constitute a “taking or damaging,” the trial court should have separately heard evidence as to whether or not (1) the dumping of Sheyenne River water on Arneson’s land in 1976 and 1977 was a permanent “taking or damaging” and (2) the retarding of surface water runoff by blocking Drain 27 was a permanent “taking or damaging.” There also should have been separate verdicts. Confusion is a logical consequence of commingling. Is this case to be read as approving some kind of switch from Guerard? Is a determination of “taking or damaging” now to be a jury question? I presume that it is not.
Under the law announced by the majority opinion, even if there were a total reversal and remand the trial court would obviously determine, on the basis of the record made so far, that there was no permanent “taking or damaging” of the Arneson land by dumping of Sheyenne River water in 1976-1977. It may or may not, however, determine that there was a permanent “taking or damaging” by the retarding of surface water runoff. If the court determined that it was a permanent “taking or damaging,” there would be a more limited jury trial, and it would be preposterous to think that the verdict would anywhere approach $140,-000.
I agree with one part of the opinion authored by Chief Justice Erickstad. If you waive temporary (crop-loss) damage and claim only permanent “taking or damaging,” you must prove permanent (frequent inevitable reoccurrences) damage. The opinion, however, as it now stands will surely open the floodgates to litigation.
I do not agree that either permanent or temporary “taking or damaging” can be based upon the blocking of Drain 27. The control of surface water runoff through an artificially constructed legal drain has to be left in the hands of the drainage authorities. Disagreeing with a water facility management decision should not open the door to an inverse condemnation action. If surface water is never permitted to escape from a tract of land except through natural contours of the land, no one is liable for any damage that might be suffered. In my view, because Arneson helped pay for Drain *4227, perhaps he is entitled to an order requiring it to be managed so that it drains surface waters from his land or to a refund of his contribution toward its construction.
The judgment should be reversed and the case dismissed or remanded for a trial court determination of whether or not the plug in Drain 27 constitutes a “taking or damaging.” Only if the trial judge finds that there was a “taking or damaging” would a very limited jury trial be warranted.
I do not agree that costs, including expert witness fees, must be substantiated by the court. That places the burden on the wrong party, contrary to the abuse of discretion standard. See Peterson v. Hart, 278 N.W.2d 133 (N.D.1979).