Pretty simple facts in the North Dakota Supreme Court's opinion in Lincoln Land Development, LLC v. City of Lincoln, No. 20180117 (Mar. 15, 2019): back in the day (the 1980's) the City had a dirt road over private property, used to access its sewage treatment plant. Lincoln Land Development bought the property in 2005. Recently, the City graded and paved the road, raised the road bed, and added things like culverts.
Inverse condemnation?
The City denied liability, arguing that Lincoln Development didn't have the right to exclude the City because the City owned an easement -- either by express grant, or by implication or estoppel -- and thus Lincoln Development didn't possess property that the City had taken.
The most interesting part of the North Dakota Supreme Court's opinion, in our opinion, starts on page 5, where the court discusses the easement by prescription claim (after having agreed with the landowner that its deed did not expressly grant and easement to the City). Both parties agreed that the City used the dirt road for more than 20 years, the prescriptive period in ND. Game over?
No. The critical facts which compelled the Supreme Court to affirm the trial court's takings verdict in favor of the property owner were the changes in the structure of the road:
The final construction plans for the 2011 project show the pre-2011 two-tire track road was between six and ten feet wide and was not elevated above the adjacent ground. The new roadway has a sixteen-foot wide surface with a seventeen-foot road top sub-base and identified stripping limits for either a 4:1 or 6:1 downslope to the original grade of the property. The construction plans showed two to three and a half foot ditches with a flat ditch bottom approximately ten feet wide. The plans also called for installation of culverts, one of which was installed on Lincoln Land Development’s property.
Slip op. at 5-6.
Lesson: just because you own something doesn't mean you own everything. A paved road isn't a dirt road.
The court also upheld the award of attorneys' fees to the property owner as the prevailing party. It rejected the City's argument that it, not Lincoln Development, was the prevailing party, because even though Lincoln Development won only one of its five claims. The trial court held that Lincoln Development didn't actually raise five claims, just one claim with five theories of damage. Slip op. at 8.
Lincoln Land Development, LLP v. City of Lincoln, No. 20180117 (N.D. Mar. 15, 2019)
