concurring specially.
[¶ 14] I agree we reverse and remand.
[¶ 15] I -write separately to note that on remand, the district court, in the first instance, must review the framework of its analysis. Can a police power emergency doctrine justify uncompensated taking of property here? Reliance on a type of governmental or sovereign immunity appears questionable in view of Kitto v. Minot Park District, 224 N.W.2d 795 (N.D.1974), and Butman v. Hulstrand Constr., 521 N.W.2d 632 (N.D.1994).
[¶ 16] The Constitution of North Dakota provides:
Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, unless the owner chooses to accept annual payments as may be provided for by law.
N.D. Const. art. I, § 16.
[¶ 17] Perhaps in a genuine emergency, prior court-related action may not be possible. But even if that is the case, does it follow that because it is not possible to *854comply with all of a constitutional provision, government does not need to comply with any of the constitutional provision?
[¶ 18] Usually, the emergency takings doctrine is applied to property that must be taken because of its location in a case of flooding or fire. Here, clay was needed and could have been taken from many locations, but it was taken from the plaintiffs property. Does it make sense that the one property owner should have to bear the entire burden? If the city needed lumber because of the emergency, could it just have gone and taken lumber from one lumber yard without paying? Could the City have decided to get the lumber by randomly tearing down someone’s house and then refusing to compensate the owner? Does it matter that the City went outside the city to seize the clay?
[f 19] DALE V. SANDSTROM