North Dakota Court Rules in Property Owner’s Favor in Pre-Condemnation Entry Claim by Condemnor

In the recent case entitled Cass County Joint Water Resource District, v. Cash H. Aaland, Larry W. Bakko and Penny Cirks, the North Dakota Supreme Court rules in the property owners favor on the issue of whether a Water District had the authority to enter upon the owner’s property prior to filing a condemnation case, as part of a flood diversion project.  In this unique factual situation, the Water District had previously been granted access to the owner’s property for sixteen and one-half months under a North Dakota right-of-entry statute to conduct examinations, surveys and mapping. However, after its initial right-of-entry had expired, it sought to extend the right by negotiating with the property owner for easements to install permanent survey monuments in order to conduct geomorphic examinations. When those negotiations failed, instead of seeking to condemn the easements, it sought an extension of its previous occupancy of owner’s property, using the same right-of-entry statute, for an additional nineteen months, bringing the total occupancy period to thirty-five and one-half months. In ruling that the right-of-entry statute did not authorize such an expanded and more invasive use of owner’s property, the North Dakota Supreme Court reversed a lower court decision allowing the entry to occur. The case is helpful in terms of its discussion of other state cases addressing pre-condemnation right-of-entry issues.