dissenting.
Guerard v. State, 220 N.W.2d 525 (N.D. 1974), reached about the same conclusion as the majority in this case. If we are bound by precedent, I guess this result has to be correct. I participated in Guerard and lost. I thought the court was wrong then and I think it is wrong now. Both opinions express many correct principles of law with which I am in full agreement.
This majority opinion, citing Guerard, says that “the question of whether or not there has been a taking or damaging of private property for a public use has been determined by this court to be a question of law.” It also says that the Heleys and Jelineks seek consequential damages for the interference with air space over the Frolek land in which they have no interest other than that shared in common by the public. That distinguishes this case from cases such as Cummings v. City of Minot, 67 N.D. 214, 271 N.W. 421 (1937), which rely upon a theory that the owner of land abutting a highway has an interest in that highway different from that of the public. No cases have held that private rights are violated where no rights exist.
It is my understanding that when the trial court in this case heard the offer of proof and rejected the admission of the testimony, it was in effect ruling as a matter of law that Heley and Jelinek were claiming damages from the erection of structures on land where they had no interest differing from the public interest, which is damnum absque injuria. See Netherton, Selected Studies in Highway Law, Transportation Research Board, Vol. 1, at 25. If that is a question of law as this majority opinion says it is, then there is no reason for reversing and remanding.
Just as in Guerard, the trial court and counsel will not know what has been done wrong or how anything should be done differently. After Guerard was remanded, it has rested unmolested to this day.
I do not believe that the law of eminent domain should be interpreted to say that damages caused by a project are compensa-ble if the project interferes with an existing use but not if it interferes with a potential use.