Sargent Cty. Water Resource District v. Beck

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 15, 2023
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2023 ND 230

Sargent County Water Resource District,
a North Dakota Political Subdivision, Plaintiff, Appellee,
and Cross-Appellant
v.
Gregory S. Beck and Carol L. Beck, as Co-Trustees
of the Gregory S. Beck and Carol L. Beck Revocable
Living Trust dated September 8, 2020, Gerald P. Bosse
and Diana Bosse, as Co-Trustees of the Gerald and
Diana Bosse Irrevocable Land Trust dated the 13th day
of January, 2021, Gerald P. Bosse, Diana Bosse,
Mathew J. Bosse, Brent P. Bosse, and all other persons
unknown claiming an estate or interest in or lien or
encumbrance upon the real property described in the
Complaint, whether as heirs, legatees, devisees,
personal representatives, creditors or otherwise, Defendants
and
Paul Mathews as Personal Representative of the Estate
of Nancy I. Mathews, Phyllis Delahoyde, and
Daniel G. Delahoyde, Defendants, Appellants,
and Cross-Appellees

No. 20220357
Appeal from the District Court of Sargent County, Southeast Judicial District,
the Honorable Jay A. Schmitz, Judge.

AFFIRMED IN PART AND REVERSED IN PART.

Opinion of the Court by McEvers, Justice.

Robert G. Hoy (argued), Stephen J. Hilfer (appeared), and Christopher M.
McShane (on brief), West Fargo, ND, for plaintiff, appellee, and cross-
appellant.

Derrick L. Braaten, Bismarck, ND, for defendants, appellants, and cross-
appellees.
 Sargent Cty. Water Resource District v. Beck, et al.
No. 20220357

McEvers, Justice.

[¶1] Paul Mathews as personal representative of the Estate of Nancy
Mathews, Phyllis Delahoyde, and Daniel Delahoyde (collectively,
“Landowners”) appeal from a judgment condemning their property and an
order denying their motion for a new trial. Sargent County Water Resource
District (“District”) cross-appeals from an order concluding Landowners’
arguments were not foreclosed for failure to appeal the District’s “Resolution
of Necessity” or barred by res judicata or collateral estoppel. We affirm in part,
concluding Landowners’ arguments are not foreclosed, and reverse in part,
concluding the drain project exceeds the maximum maintenance levy
authorized by statute requiring the approval of the majority of landowners.

I

[¶2] In June 2021, the District commenced this eminent domain action
seeking to acquire permanent and temporary easements over five properties
adjacent to Drain 11. Drain 11 is a legal assessment drain in Sargent County
that drains into the Upper Wild Rice River. The District sought to acquire the
easements for a drainage project identified as the “Drain 11 Improvement
Project” (“Project”). Landowners opposed this eminent domain action,
asserting the Project is unlawful because it does not constitute “maintenance”
and exceeds the six-year maximum maintenance levy without the approval of
the majority of landowners. They contended the Project is not for a use
authorized by law and condemnation of their property was unnecessary. The
District argued Landowners’ arguments were foreclosed because they did not
appeal the District’s “Resolution of Necessity” and their arguments are barred
by res judicata or collateral estoppel.

[¶3] After a bench trial, the district court concluded Landowners’ arguments
are not foreclosed. The court granted condemnation, concluding the Project is
for a use authorized by law and the easements sought are necessary for the
Project. The court further concluded that no landowner vote was required for

1
the Project under N.D.C.C. § 61-16.1-45 because there was “no evidence the
District is obligating the Drain 11 assessment district for costs beyond the
four-dollar maximum maintenance levy threshold over a six-year period.” The
court entered judgment and authorized the District to take possession of the
property.

[¶4] In July 2022, Landowners moved for a new trial or to amend judgment,
asserting newly discovered evidence. They argued the District’s post-judgment
board meeting minutes show the Project’s cost has increased further beyond
the maximum levy, which requires a landowner vote, and the need to condemn
their property is speculative given the Project’s new plans, which do not include
Landowners’ property in the initial construction. Landowners maintained that
the Project does not constitute “maintenance.” The district court denied
Landowners’ motion, concluding it lacked jurisdiction to amend judgment
because it was served and filed more than 28 days after notice of entry of
judgment. Further, the court denied the motion for a new trial because
Landowners failed to identify newly discovered evidence in existence at the
time of trial, which was not reasonably available to them. Landowners appeal,
and the District cross-appeals.

II

[¶5] “[W]hen a new trial is sought, the moving party is limited on appeal to
the grounds presented to the district court in the motion for a new trial.”
Prairie Supply, Inc. v. Apple Elec., Inc., 2015 ND 190, ¶ 7, 867 N.W.2d 335.
Landowners have preserved the issues they raise on appeal by arguing those
grounds to the district court in their new trial motion.

[¶6] In an appeal from a bench trial, the district court’s conclusions of law are
fully reviewable and its findings of fact are reviewed under the clearly
erroneous standard of review. W. Energy Corp. v. Stauffer, 2019 ND 26, ¶ 5,
921 N.W.2d 431. A finding of fact is clearly erroneous if it is induced by an
erroneous view of the law, if there is no evidence to support it, or if after
reviewing all of the evidence, we are convinced a mistake has been made. Id.

2
 III

[¶7] The District argues the district court erred by allowing Landowners to
challenge the legality of the Project in this eminent domain action. The District
contends Landowners’ arguments are foreclosed under res judicata or
collateral estoppel, and for failure to appeal the “Resolution of Necessity” to
the district court under N.D.C.C. § 61-16.1-54. The District asserts
Landowners’ arguments were already raised and rejected in Banderet v.
Sargent County Water Resource District, 2019 ND 57, 923 N.W.2d 809.

[¶8] In Banderet, landowners—including Paul Mathews and Nancy
Mathews—brought a declaratory and injunctive relief action to prevent the
District from proceeding on the Project. 2019 ND 57, ¶ 5. They sought a
judgment declaring that the Project “cannot be funded as maintenance within
six years at $4 per acre being assessed” to them and that they are entitled to a
hearing and vote on the Project. Id. The District moved to dismiss the
complaint for failure to appeal its adoption of the resolution of necessity within
30 days. Id. at ¶ 6. The district court dismissed the action for lack of appellate
subject matter jurisdiction. Id. This Court affirmed the dismissal, concluding
the time for appealing the resolution of necessity expired. Id. at ¶¶ 17, 19. The
Court emphasized that it “has consistently held an aggrieved party must
appeal a local governing body’s decision rather than seek injunctive or
declaratory relief against the enforcement of the decision.” Id. at ¶ 12
(emphasis added).

A

[¶9] The District argues the same result in Banderet should result in this case
because Landowners did not appeal the “Resolution of Necessity” to the district
court. Under N.D.C.C. § 61-16.1-54, an aggrieved person may appeal an order
or decision of the water resource board to the district court, which is governed
by the procedure in N.D.C.C. § 28-34-01. Under N.D.C.C. § 28-34-01(1), the
notice of appeal must be filed with the court within 30 days after the decision.
The resolution of necessity, outlining the Project’s scope and need, was adopted
in 2016, and Landowners did not timely appeal that decision. Thus, the issue

3
before us is whether Landowners’ arguments are foreclosed for failing to timely
appeal the “Resolution of Necessity” to the district court.

[¶10] In Banderet, the landowners brought a declaratory and injunctive relief
action to prevent the Project from proceeding. Here, the District brought an
eminent domain action seeking to condemn Landowners’ property.
Landowners’ arguments that the Project is unlawful are therefore raised in
opposition to the District’s action to take their property. Our reasoning in
Banderet specifically relied upon the type of action brought and who brought
the action:

This Court has consistently held an aggrieved party must
appeal a local governing body’s decision rather than seek
injunctive or declaratory relief against the enforcement of the
decision. See Hector v. City of Fargo, 2014 ND 53, ¶ 23, 844 N.W.2d
542 (Stating “a statutory appeal provides an adequate legal
remedy for reviewing a local governing body’s decision, and in
those cases where an appeal is authorized by law, an action for
equitable relief generally is not available.”); Anderson v. Richland
Cty. Water Res. Bd., 506 N.W.2d 362, 365 (N.D. 1993) (Stating
“landowners’ declaratory judgment action was inappropriate
because N.D.C.C. § 28-34-01 ‘governs any appeal . . . from the
decision of a local governing body.’”); Olson v. Cass Cty.,
253 N.W.2d 179, 182 (N.D. 1977) (Holding “[i]f the grievance of the
person challenging a board’s decision is of a type that could have
been fairly litigated on appeal, then that statutory appeal is an
adequate legal remedy, and no suit for injunction will lie as a
substitute.”); Chester v. Einarson, 76 N.D. 205, 219, 34 N.W.2d 418,
427-28 (1948) (Holding “[w]here the law provides an appeal from
an order or determination of a board or commission whereby the
correctness and validity of the order or decision may be reviewed
the remedy so provided, if adequate, must be pursued and a party
having the right of appeal may not disregard the remedy and
obtain injunctive relief against the enforcement of the order or
decision.”).

....

In this case, similar to Olson, the Landowners sought
declaratory and injunctive relief, arguing the District ignored

4
 statutory requirements relating to a public hearing and landowner
vote after adopting the resolution of necessity for the Drain 11
project. The Landowners claim the District had jurisdiction to
adopt the resolution of necessity, but it lacked jurisdiction to put
language within the resolution purporting to waive all further
legal process, including holding a public hearing and vote. As in
Olson, we are not persuaded by the Landowners’ arguments
relating to declaratory and injunctive relief.

2019 ND 57, ¶¶ 12, 14.

[¶11] Significantly, Banderet and the cases relied on in Banderet were
injunctive or declaratory relief actions brought by aggrieved landowners
against a local governing body, not an eminent domain action brought by the
local governing body against landowners. See also Brandt v. City of Fargo,
2018 ND 26, ¶ 13, 905 N.W.2d 764 (concluding district court did not err by
dismissing appeals from resolutions of necessity while noting affirming
dismissals did not “extinguish the property owners’ ability to challenge the
requirements of N.D.C.C. ch. 32-15 in the eminent domain proceedings”).
While the landowners in Banderet were required to exhaust their
administrative remedies prior to bringing an injunctive and declaratory relief
action, Landowners are not foreclosed from challenging whether the Project is
authorized by law in defending against an eminent domain action. We conclude
the district court did not err in concluding Banderet does not foreclose
Landowners’ arguments.

B

[¶12] The District contends Landowners’ arguments are barred by res judicata.
“Res judicata, or claim preclusion, prevents relitigation of claims that were
raised, or could have been raised, in prior actions between the same parties or
their privies.” Riverwood Com. Park, L.L.C. v. Standard Oil Co., 2007 ND 36,
¶ 13, 729 N.W.2d 101 (emphasis added). Whether res judicata applies is a
question of law, fully reviewable on appeal. Est. of Seidel v. Seidel, 2021 ND 6,
¶ 10, 953 N.W.2d 636. The doctrine should not be applied so rigidly as to defeat
the ends of justice or to work an injustice. Wetch v. Wetch, 539 N.W.2d 309, 312
(N.D. 1995).

5
 The doctrine of res judicata is a judicially created doctrine
which may be said to exist as an obvious rule of reason, justice,
fairness, expediency, practical necessity, and public tranquility.
There are situations, at least in eminent domain proceedings
(including inverse condemnations), in which, by reason of statutes
or otherwise, it becomes impossible, unfair or impractical to apply
the doctrine.

Oakes Mun. Airport Auth. v. Wiese, 265 N.W.2d 697, 702 (N.D. 1978) (Pederson,
J., concurring in part) (cleaned up).

[¶13] The question is whether failure to appeal from a resolution of necessity
precludes further consideration of the issue in an eminent domain proceeding
under the doctrine of res judicata. We discussed eminent domain under
N.D.C.C. ch. 32-15 in the context of an appeal from a resolution of necessity
stating, “Under N.D.C.C. § 32-15-05(2), ‘the legislature has entrusted the right
to review a determination of the question of necessity in an eminent domain
action to the judicial branch of government.’” Brandt, 2018 ND 26, ¶ 11. The
court’s role in reviewing public necessity was described as “limited to the
question of whether the taking of the particular property sought to be
condemned is reasonably suitable and usable for the authorized public use.”
Id. In Brandt, we affirmed the district court’s dismissal of Brandt’s attempted
appeal from a resolution of necessity stating, “[A]ffirming the dismissals does
not extinguish the property owners’ ability to challenge the requirements of
N.D.C.C. ch. 32-15 in eminent domain proceedings.” Id. at ¶ 13.

[¶14] In Cossette v. Cass County Joint Water Resource District, a majority of
the Court reversed the district court’s dismissal of property owners Cossettes’
appeal of resolution of necessity. 2017 ND 120, ¶ 15, 894 N.W.2d 858. The Court
noted the resolution provided a legal description of the Cossettes’ property and
that it was necessary for the construction, operation, and maintenance of the
diversion project. Id. The resolution specifically stated that the water resource
district “will proceed with the requisite legal proceedings as necessary under
Section 61-16.1-09(2) and Chapter 32-15 of the North Dakota Century Code to
acquire a Permanent Right of Way Easement over, across, and through the
Property.” Id. The majority of the Court concluded that the resolution

6
“adversely affected the Cossettes’ property rights by describing the Cossettes’
property and stating the District will proceed with eminent domain to acquire
an interest in the property,” aggrieving them upon passage of the resolution
“indicating the District will acquire an interest in the Cossettes’ property
through eminent domain” under N.D.C.C. § 61-16.1-54. Id.

[¶15] Applying the doctrine of res judicata here to bar any further review of
matters contained in the resolution of necessity would be unjust for several
reasons. Although Landowners here failed to timely appeal the resolution of
necessity which barred judicial review, the district court noted in the
underlying declaratory judgment action that the District, being well aware of
opposition to the project and a request for a vote, considered and passed the
resolution of necessity without including it on the agenda of a regularly
scheduled meeting, then erroneously told the landowners at the next meeting
that the time to appeal the decision had already expired. The district court
described the District’s action as “minimal compliance with statutory
requirements.” In addition, a review of the resolution of necessity itself shows
it would be unjust to consider the issue res judicata.

[¶16] The resolution states: “WHEREAS, the Drain 11 Project will not require
the addition of any new properties to the existing Drain 11 assessment
district.” At best, this statement is misleading, as the District sought
permanent and temporary easements over five properties in this eminent
domain action without including a legal description of the affected properties.
If further property interests were “not require[d],” there would be no need for
an eminent domain proceeding. The resolution also gives broad authorization
to an engineering firm and a law firm to design the project, identify the
property interests needed, negotiate with landowners, prepare a bond issue,
and secure financing. The District further resolved, that “construction of the
Drain 11 Project does not require an excess levy vote, an additional assessment
district vote, or any other additional legal proceedings under North Dakota
law.” The District has discretion to utilize this method to levy special
assessments for maintenance. See N.D.C.C. § 61-16.1-45(1). While it may have
been the intent of the District to keep the Project within the financial
parameters which would not require a vote, that objective plainly failed, as

7
explained in further detail below, when the District obligated costs beyond the
maximum maintenance levy and authorized the accumulation of a fund
exceeding the six-year maximum levy. A resolution of necessity stating
otherwise does not absolve the District from demonstrating that the Project is
a use authorized by law and that the property to be taken is necessary to
achieve that use.

[¶17] Although the engineering firm conducted a study and presented the
Project cost to the District before the resolution of necessity was adopted, the
conclusory resolution fails to acknowledge any such study or cost or otherwise
notify any interested landowner that their property would be subject to
condemnation. In fact, the resolution purports to alleviate the landowners’
concern by stating the Project will not require the addition of any new
properties, an excess levy vote, an additional assessment district vote, or
additional legal proceedings. While the resolution authorizes the engineering
firm and law firm to negotiate with landowners and “acquire the requisite
temporary and permanent right of way to accommodate the Project,” the
resolution fails to provide with any level of specificity what actions on behalf
of the District are necessary to achieve the Project. Cf. Cossette, 2017 ND 120,
¶ 15. On its face, the resolution recognizes that further design of the project
may be needed and that financing will need to be secured. Given such
vagueness and uncertainty, requiring the landowners to challenge these
portions of the resolution of necessity within 30 days is contrary to principles
of justice, fairness, and practicality. While there may be portions of the
resolution of necessity to which the doctrine of res judicata should apply, we
are not persuaded to apply it to the issues before us.

[¶18] We conclude the District’s res judicata argument fails because Banderet
involved different legal and equitable claims for relief, see Riverwood, 2007 ND
36, ¶ 13, and applying res judicata in this eminent domain action would be
unjust.

C

[¶19] As to the District’s argument regarding collateral estoppel, or issue
preclusion, the doctrine “precludes litigation of issues actually litigated and

8
necessary to the outcome of the prior case, even if such issues are subsequently
presented as part of a different ‘claim.’” Riverwood, 2007 ND 36, ¶ 14; see also
Fettig v. Est. of Fettig, 2019 ND 261, ¶ 21, 934 N.W.2d 547 (noting collateral
estoppel requires a final judgment on the merits). In Fettig, at ¶ 21, we noted:

Four tests must be met before collateral estoppel will bar
relitigation of a fact or issue involved in a previous action: (1) Was
the issue decided in the prior adjudication identical to the one
presented in the action in question?; (2) Was there a final judgment
on the merits?; (3) Was the party against whom the plea is asserted
a party or in privity with a party to the prior adjudication?; and (4)
Was the party against whom the plea is asserted given a fair
opportunity to be heard on the issue?

Because the district court in Banderet dismissed the case for lack of appellate
subject matter jurisdiction and the dismissal was affirmed by this Court, the
final judgment was not on the merits. Bolinske v. Sandstrom, 2022 ND 148,
¶ 11, 978 N.W.2d 72. In addition, prior to the eminent domain action,
Landowners did not have a fair opportunity to be heard on the matter as
previously discussed under the issue of res judicata. Thus, we conclude
Landowners’ arguments are not barred by collateral estoppel.

IV

[¶20] Landowners argue the Project exceeds the six-year maximum
maintenance levy under N.D.C.C. § 61-16.1-45.

Statutory interpretation is a question of law, fully reviewable on
appeal. The primary objective in interpreting a statute is to
determine the intent of the legislation. In ascertaining the intent
of the legislation, we look first to the words in a statute, giving
them their plain, ordinary, and commonly understood meaning,
unless defined by statute or unless a contrary intention plainly
appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and
are harmonized to give meaning to related provisions. N.D.C.C.
§ 1-02-07. If the language of a statute is clear and unambiguous,
“the letter of [the statute] is not to be disregarded under the
pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. The language of
a statute must be interpreted in context and according to the rules

9
 of grammar, giving meaning and effect to every word, phrase, and
sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). We construe statutes
to give effect to all of their provisions, so that no part of the statute
is rendered inoperative or superfluous. N.D.C.C. § 1-02-38(2)
and (4).

Kutcka v. Gateway Bldg. Sys., Inc., 2023 ND 91, ¶ 6, 990 N.W.2d 605 (alteration
in original).

[¶21] Section 61-16.1-45, N.D.C.C., provides the maximum maintenance levy
for a drainage project without requiring a landowner vote:

1. If it is desired to provide for maintenance of an assessment
drain in whole or in part by means of special assessments, the levy
in any year for the maintenance may not exceed four dollars per
acre [.40 hectare] on any agricultural lands benefited by the
drain. . . .

....

2. In case the maximum levy or assessment on agricultural and
nonagricultural property for any year will not produce an amount
sufficient to cover the cost of cleaning out and repairing the drain,
a water resource board may accumulate a fund in an amount not
exceeding the sum produced by the maximum permissible levy for
six years.

3. If the cost of, or obligation for, the cleaning and repairing of
any drain exceeds the total amount that may be levied by the board
in any six-year period, the board shall obtain the approval of the
majority of the landowners as determined by chapter 61-16.1
before obligating the district for the costs.

The parties agree the maximum maintenance levy each year within the
assessment district based on $4 per acre is $283,003.64. Thus, the maximum
maintenance levy over a six-year period is $1,698,021.84. Landowners assert
that because the total Project cost of $3.9 million exceeds this six-year
maintenance levy, the Project required the approval of the majority of the
landowners.

10
[¶22] The district court found “there is no evidence that was submitted that
the District’s share of the Project will exceed the six-year accumulation.” The
court concluded that no landowner vote was required for the Project “because
there is no evidence the District is obligating the Drain 11 assessment district
for costs beyond the four-dollar maximum maintenance levy threshold over a
six-year period.” The District concedes the total cost of the Project is
$3.9 million but contends Landowners’ argument fails when taking into
account “cost-share contributions” from other sources and the District’s “funds
on hand.” The District asserts the “local share” is $2.28 million, which includes
the maximum maintenance levy ($1.7 million) plus its “funds on hand”
($581,000). The District outlines the costs as follows:

State Water Commission Cost-Share ~$1.4 million
Sargent County Commission Crossing Cost-Share ~$200,000
Local Share Total ~$2.28 million
Maximum Maintenance Levy ~$1.7 million
Remainder (paid with funds on hand) ~$581,000
Total Project Cost ~$3.9 million

The District does not state where the $581,000 of “funds on hand” originated
from or cite any evidentiary support for the source of funds. Landowners argue
these funds are prior maintenance levies. At oral argument, counsel for the
District conceded the $581,000 must be some form of tax as the District has no
other means of accumulating funds. The parties disagree as to what costs the
Project has obligated the district for under N.D.C.C. § 61-16.1-45(3). The
District argues the Project has only obligated the district for costs of the
maximum levy ($1.7 million). Landowners argue the Project obligated the
district for costs of the entire Project ($3.9 million).

[¶23] Section 61-16.1-45(2), N.D.C.C., recognizes a single-year levy may be
insufficient “to cover the cost of cleaning out and repairing the drain,” allowing
for the accumulation of funds. However, that accumulated amount may not
exceed “the sum produced by the maximum permissible levy for six years,” id.,
which the parties agree is approximately $1.7 million. Section 61-16.1-45(3),
N.D.C.C., provides, “If the cost of, or obligation for,” the Project exceeds
$1.7 million, “the board shall obtain the approval of the majority of the

11
landowners . . . before obligating the district for the costs.” Because the funds
from the State Water Commission and Sargent County Commission Crossing
are from sources other than the District, we conclude those funds do not
“obligat[e] the district.” However, $2.28 million of the Project consists of wholly
district funds levied or taxed against district landowners. This amount is more
than “the sum produced by the maximum permissible levy for six years,”
$1.7 million, and thus violates N.D.C.C. § 61-16.1-45(2). Further, because “the
cost of, or obligation for,” the Project exceeds $1.7 million, the District was
required to obtain approval of the majority of landowners before obligating the
district for the costs. The District’s board obligated the district for $2.28 million
of district funds without landowner approval in violation of N.D.C.C.
§ 61-16.1-45(3).

[¶24] In 2020, the Attorney General was similarly asked through a request for
an attorney general opinion,

[W]hether a vote of the landowners is required before commencing
a project under N.D.C.C. ch. 61-16.1 referred to as maintenance by
a Resolution of Necessity when the project, as a whole, will exceed
the maximum six-year levy under N.D.C.C. § 61-16.1-45, and also
whether the maximum accumulated maintenance levy under
N.D.C.C. §§ 61-16.1-45 and 61-21-46 are calculated on a project-
by-project basis.

N.D. Op. Att’y Gen. 2020-L-04, at 2 (Sept. 1, 2020). He concluded “that
maintenance projects may be completed in phases without a vote as long as a
phase does not obligate the district for costs beyond the maximum
maintenance levy threshold and that the maximum accumulated maintenance
levy under N.D.C.C. §§ 61-16.1-45 and 61-21-46 is calculated on a project-by-
project basis.” Id. We agree with the Attorney General’s conclusion to the
extent it states a district may not accumulate a fund exceeding the six-year
maximum levy or obligate the district for costs beyond the maximum
maintenance levy without a landowner vote. See Hagen v. N.D. Ins. Rsrv.
Fund, 2022 ND 53, ¶ 16, 971 N.W.2d 833 (giving “respectful attention” to
attorney general opinions and following them when they are persuasive).

12
[¶25] “Before property can be taken it must appear . . . [t]hat the use to which
it is to be applied is a use authorized by law.” N.D.C.C. § 32-15-05(1). “Where
a property owner contests ‘public use’ under N.D.C.C. ch. 32-15, ‘there is a
presumption a use is public when the Legislature has declared it to be and we
treat the Legislature’s decision with the deference due a coordinate branch of
government.’” Montana-Dakota Utilities Co. v. Behm, 2019 ND 139, ¶ 9,
927 N.W.2d 865 (quoting City of Medora v. Golberg, 1997 ND 190, ¶ 8,
569 N.W.2d 257). However, “the ultimate decision regarding whether a
proposed use of property is, in fact, a public use is a judicial question.” Behm,
at ¶ 9.

[¶26] The district court concluded the Project was a use authorized by law
under N.D.C.C. § 32-15-02(3) because the purpose of the Project was
“reconstruction, repair, improvement, maintenance, and operation of a legal
assessment drain, which is a canal or ditch used for draining Sargent County.”
Section 32-15-02(3), N.D.C.C., authorizes eminent domain for certain public
uses, including canals and ditches used for draining. The public uses
authorized by subsection 3 carry an additional requirement: “the mode of
apportioning and collecting the costs of such improvement shall be such as may
be provided in the statutes by which the same may be authorized.” N.D.C.C.
§ 32-15-02(3). Assuming without deciding the entire project constitutes
“maintenance” for purposes of N.D.C.C. § 61-16.1-45, the Project as approved
requires an unlawful accumulation of funds in excess of the maximum
permissible levy and unlawfully obligates the district for costs beyond the
maximum maintenance levy under that section. Accordingly, the Project as
currently designed and approved does not satisfy “the mode of apportioning
and collecting the costs of such improvement” as authorized by N.D.C.C.
§ 61-16.1-45 and thus does not satisfy the additional cost limitations for public
use under N.D.C.C. § 32-15-02(3). Because the Project as currently designed
and approved exceeds the statutory maximum maintenance levy, it cannot
proceed under its current cost without the approval of the majority of
landowners as required by N.D.C.C. § 61-16.1-45(3).

[¶27] We conclude the district court clearly erred by finding there was no
evidence the District’s share of the Project will exceed the six-year

13
accumulation. Further, the court erred in concluding the Project was a use
authorized by law under N.D.C.C. § 32-15-02(3) and no landowner vote was
required for the Project.

V

[¶28] We affirm the order concluding Landowners’ arguments are not
foreclosed. The “Drain 11 Improvement Project,” however, cannot proceed in
its current form without the approval of the majority of landowners. Thus, we
need not reach Landowners’ additional arguments that the Project does not
“provide for maintenance of an assessment drain” under N.D.C.C.
§ 61-16.1-45(1) and that the district court abused its discretion in denying their
new trial motion. The judgment is reversed.

[¶29] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr

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