(concurring in part and dissenting in part).
I concur in the holding of the majority reversing the judgment against the contractors, but I dissent in the holding of the majority to the effect that the City is liable under Section 14 of the Constitution for consequential damages because of an improvement which it did not construct.
The majority cites Section 32-15-22(3), N.D.C.C., and construes it to allow damages resulting from a taking for public use, even though no part of the property damaged is actually taken. This I believe to be a misconstruction of the statute. The statute provides:
“The jury, or court, or referee, if a jury is waived, must hear such legal testimony as may be offered by any of the parties to the proceedings and thereupon must ascertain and assess:
⅝ ⅜ ,⅜ ⅜ ⅝ ⅝
“3. If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages (Emphasis supplied.)
* * * ⅜ * *
This section allows damages if property not taken is damaged by the construction. It is not an element of damages for a taking. In defining this provision of the statute, we said in Little v. Burleigh County, N.D., 82 N.W.2d 603, at 608:
“Paragraph 3 provides, in effect, for consequential damages, with reference to which the problem of differentiating between damage that is due and damage that is not due to the ‘taking’ chiefly arises, inasmuch as such damages are never due to the ‘taking’. Instead, they always arise from injury to other property, though no part thereof is actually taken. Consequential damages, allowable under paragraph 3, arise from injuries to other property not actually taken, caused by the construction of the public improvement.” See also King v. Stark County, 67 N.D. 260, 271 N.W. 771, cited in 29A C.J.S. Eminent Domain § 111, n. 49.
*733In the case before us no part of the plaintiffs’ property was taken by the City and the City did not construct, supervise, engineer or pay for the dike that was built upon its property. The City, in fact, had no control of the project. The construction and all of the aspects surrounding it were in the control of the Federal Government and the Federal Government is not liable for remote or consequential damage in the construction of public works by it. The City contracted with the Federal Government to hold it harmless from damages due to the construction or subsequent maintenance of the dike. It assumed, by contract, such obligation only in the event that the Federal Government was liable. There being no liability on the part of the Federal Government for remote or consequential damage, the City did not, either by express or implied contract, assume such an obligation.
It is proper to take judicial notice that the City of Fargo and the Federal Government are separately created governmental units and possess divergent powers and, as such, are separate entities. For this reason unilateral action of one may not be construed as imposing liability upon the other, even though the action taken by each be under authorizing statutes permitting cooperative effort. Madden v. Fulton County, 102 Ga.App. 19, 115 S.E.2d 406.
This suit is brought upon the theory of implied contract to recover compensation. It is not for damages in the strict sense of the word. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126; Jacobson v. State, 68 N.D. 259, 278 N.W. 652. Therefore, the law of torts that certain persons acting in concert under certain situations may be liable for the acts of others is not applicable. I do not believe it was the intent of the framers of the Constitution of North Dakota, or its people who adopted it, that the State, its departments, agencies, political subdivisions, or its municipalities should become liable in contract to compensate all persons who are damaged by a public improvement located upon its property where the construction of such public improvement is not controlled by the sovereignty. Nor did the legislature so construe the constitutional provision when it passed Section 32-15-22(3), supra, which by clear language imposes a separate liability for the construction, if the construction damages property no part of which is taken. To hold otherwise would make the sovereignty liable for compensation to persons who suffer remote or consequential damage because of the construction of utility facilities — such as telephone, telegraph, street railway, railway, etc., upon the right of way of its streets and roads. I feel confident that such was not the intent and it is not the law.