# Title 32 — Judicial Remedies

## Chapter 32-15 — Eminent Domain

### § 32-15-01. Eminent domain defined - How exercised - Condemnor defined -

Exceptions.
1. Eminent domain is the right to take private property for public use.
2. Private property may not be taken or damaged for public use without just
compensation first having been made to or paid into court for the owner. When private
property is taken by a person, no benefit to accrue from the proposed improvement
may be allowed in ascertaining the compensation to be made therefor. Private
property may not be taken for the use of, or ownership by, any private individual or
entity, unless that property is necessary for conducting a common carrier or utility
business. A determination of the compensation must be made by a jury, unless a jury
is waived. The right of eminent domain may be exercised in the manner provided in
this chapter.
3. Notwithstanding any other provision of law, a public use or a public purpose does not
include public benefits of economic development, including an increase in tax base,
tax revenues, employment, or general economic health.
4. For the purpose of this chapter, "condemnor" means a person empowered to take
property under the power of eminent domain.
### § 32-15-02. Purposes for which exercised.

Subject to the provisions of this chapter, the right of eminent domain may be exercised in
behalf of the following public uses:
1. All public uses authorized by the government of the United States.
2. Public buildings and grounds for the use of the state and all other public uses
authorized by the legislative assembly of the state.
3. Public buildings and grounds for the use of any county, city, park district, or school
district; canals, aqueducts, flumes, ditches, or pipes for conducting water for the use of
the inhabitants of any county or city, or for draining any county or city; raising the
banks of streams, removing obstructions therefrom, and widening, deepening, or
straightening their channels; roads, streets, and alleys, and all other uses for the
benefit of any county, city, or park district, or the inhabitants thereof, which may be
authorized by the legislative assembly, but 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.
4. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and
turnpike roads, railroads and street railways, electric light plants and power
transmission lines and canals, ditches, flumes, aqueducts, and pipes for public
transportation, supplying mines, and irrigating, draining, and reclaiming lands.
5. Roads, tunnels, ditches, flumes, pipes, and dumping places for working mines, outlets,
natural or otherwise, for the flow, deposit, or conduct of the tailings or refuse from
mines and mill dams.
6. Byroads leading from highways to residences and farms.
7. Telegraph and telephone lines.
8. Sewage disposal of any city, or of any settlement consisting of not less than ten
families, or of any public buildings belonging to the state, or of any college or
university.
9. Cemeteries and public parks.
10. Oil, gas, coal, and carbon dioxide pipelines and works and plants for supplying or
conducting gas, oil, coal, carbon dioxide, heat, refrigeration, or power for the use of
any county, city, or the inhabitants thereof, together with lands, buildings, and all other
improvements in or upon which to erect, install, place, maintain, use, or operate
pumps, stations, tanks, and other machinery or apparatus, and buildings, works, and
plants for the purpose of generating, refining, regulating, compressing, transmitting, or
distributing the same, or necessary for the proper development and control of such

gas, oil, coal, carbon dioxide, heat, refrigeration, or power, either at the time of the
taking of said property or for the future proper development and control thereof.
11. Lands sought to be acquired by the state or any duly authorized and designated state
official or board, which lands necessarily must be flooded in widening or raising the
waters of any body or stream of navigable or public water in the state of North Dakota.
### § 32-15-03. What estate subject to be taken.

The following is a classification of the estates and rights in lands subject to be taken for
public use:
1. A fee simple, when taken for public buildings or grounds, for permanent buildings, for
reservoirs and dams and permanent flooding occasioned thereby, for an outlet for a
flow or a place for the deposit of debris or tailings of a mine, or for the construction of
parking lots and facilities for motor vehicles.
2. An easement, when taken for highway purposes or for any other use except, upon a
proper allegation of the need therefor, the court shall have the power to order that a
fee simple be taken for such other use.
3. The right of entry upon and occupation of lands and the right to take therefrom such
earth, gravel, stones, trees, and timber as may be necessary for a public use.
However, the provisions of this section shall not authorize the state or any political subdivision
thereof to obtain any rights or interest in or to the oil, gas, or fluid minerals on or underlying any
estate or right in lands subject to be taken for a public use.
### § 32-15-03.1. Declaration of legislative intent.

Repealed by omission from this code.
### § 32-15-03.2. Termination of estates greater than an easement.

No transfer to the state of North Dakota or any of its political subdivisions of property for
highway purposes shall be deemed to include any interest greater than an easement, and
where any greater estate shall have been so transferred, the same is hereby reconveyed to the
owner from which such land was originally taken, or to the heirs, executors, administrators, or
assigns of such owner. Such reconveyance shall be subject to any existing contracts or
agreements covering such property, and all rights and benefits thereof shall accrue to the
grantee.
### § 32-15-04. What property may be taken.

The private property which may be taken under this chapter includes:
1. All real property belonging to any person.
2. Lands belonging to this state or to any county, city, or park district, not appropriated to
some public use.
3. Property appropriated to public use, but such property shall not be taken unless for a
more necessary public use than that to which it has been appropriated already, and
use by a public corporation shall be deemed a more necessary public use than use for
the same purpose by a private corporation or limited liability company, and whenever a
right of way shall have been taken and the person, firm, corporation, or limited liability
company taking such right of way shall fail or neglect for five years to use the same for
the purpose to which it had been appropriated, the attempt by another person, firm,
corporation, or limited liability company to appropriate such right of way shall be
considered a more necessary public use.
4. Franchises for toll roads, toll bridges, ferries, and all other franchises, but such
franchises shall not be taken unless for free highways, railroads, or other more
necessary public use.
5. Any system of waterworks, electric light and power plant, wells, reservoirs, pipelines,
machinery, franchises, and all other property of any character whatsoever comprising
a waterworks system or an electric light and power system.

6. All rights of way for any and all the purposes mentioned in section 32-15-02 and any
and all structures and improvements thereon, and the lands held or used in connection
therewith, shall be subject to be connected with, crossed, or intersected by any other
right of way or improvement or structure thereon. They also shall be subject to a
limited use in common with the owner thereof when necessary, but such uses,
crossings, intersections, and connections shall be made in the manner most
compatible with the greatest public benefit and the least private injury.
7. All classes of private property not enumerated may be taken for public use when such
taking is authorized by law.
### § 32-15-05. What must appear before property taken.

Before property can be taken it must appear:
1. That the use to which it is to be applied is a use authorized by law.
2. That the taking is necessary to such use.
3. If already appropriated to some public use, that the public use to which it is to be
applied is a more necessary public use.
### § 32-15-06. Entry for making surveys.

1. a. In a case in which land is required for public use, the person or the person's
agents in charge of the use may survey and locate the land after providing the
owner on the tax list a written notice of intent to survey. The notice must contain
the name, proposed completion date, type, proposed route or location of the
project associated with the survey, nature of the work the person in charge of the
public use intends to complete, and the name, telephone number, physical
address, and mailing address of the person in charge of the public use.
b. The person in charge of the public use shall deliver the notice to the owner on the
tax list through certified mail. The person in charge of the public use may not
survey the land until thirty days after delivery of the notice, unless the owner
consents to an earlier survey date. If the person in charge of the public use fails
to survey the land within ninety days of delivery of the notice, the person shall
deliver a new notice of intent to survey through certified mail. A survey conducted
under a subsequently issued notice of intent to survey must be conducted in
accordance with the timeline established under this subdivision.
2. The survey and location of the condemner's project must be located in the manner
which will be compatible with the greatest public benefit and the least private injury
and subject to section 32-15-21.
3. The person in charge of the public use may enter upon the land and make
examinations, surveys, and maps of the land in accordance with subsection 1, and the
entry does not constitute a claim for relief in favor of the owner of the land except for
injuries resulting from negligence, wantonness, or malice.
### § 32-15-06.1. Duty to negotiate - Just compensation - Appraisals.

1. A condemnor shall make every reasonable and diligent effort to acquire property by
negotiation.
2. Before initiating negotiations for the purchase of property, the condemnor shall
establish an amount which it believes to be just compensation therefor and promptly
shall submit to the owner an offer to acquire the property for the full amount so
established. The amount shall not be less than the condemnor's approved appraisal or
written statement and summary of just compensation for the property.
3. In establishing the amount believed to be just compensation, the condemnor shall
disregard any decrease or increase in the fair market value of the property caused by
the project for which the property is to be acquired or by the reasonable likelihood that
the property will be acquired for that project, other than a decrease due to physical
deterioration within the reasonable control of the owner.

4. The condemnor shall provide the owner of the property with a written appraisal, if one
has been prepared, or if one has not been prepared, with a written statement and
summary, showing the basis for the amount it established as just compensation for the
property. If appropriate, the compensation for the property to be acquired and for the
damages to remaining property shall be separately stated.
### § 32-15-06.2. Disclosures.

The condemnor, upon request, shall provide the property owner or the owner's
representative with the names of at least ten neighboring property owners to whom offers are
being made, or a list of all offerees if fewer than ten owners are affected. A current and relevant
map showing all neighboring property affected by a project shall also be provided to the
property owner. Upon request by an owner or the owner's representative, the condemnor shall
provide the names of any other property owners within that county and adjacent counties whose
property may be taken for the project. The owner or the owner's representative shall have the
right, upon request, to examine any maps in the possession of the condemnor showing property
affected by the project. The owner or the owner's representative may obtain copies of such
maps by tendering to the condemnor the reasonable and necessary costs of preparing copies.
### § 32-15-07. Proceedings by civil action.

Repealed by omission from this code.
### § 32-15-08. Form of summons - When served.

Repealed by omission from this code.
### § 32-15-09. Service by publication.

Repealed by omission from this code.
### § 32-15-10. Copy of summons served through mails.

Repealed by omission from this code.
### § 32-15-11. Service complete, when.

Repealed by omission from this code.
### § 32-15-12. When note of issue filed.

Repealed by omission from this code.
### § 32-15-13. Jury may be demanded.

Whenever in an action brought under the provisions of this chapter an issue is formed
whereby it appears that the attendance of a jury will be necessary to assess the damages in
such action, the plaintiff therein may apply to the judge of the district court where the same is
pending for an order requiring a jury to be summoned to assess the damages in such action.
Thereupon the judge shall issue an order to the clerk of said court requiring a jury to be
summoned, and in such order shall specify the number of jurors to be drawn, the place where
they are to appear, and the time when they shall come, which shall be not less than eight days
nor more than thirty days from the date thereof.
### § 32-15-14. When sheriff's fees to be advanced by plaintiff - Surety for jury fees.

Repealed by S.L. 1981, ch. 354, § 1.
### § 32-15-15. Note of issue, filing.

Repealed by omission from this code.
### § 32-15-16. Special term of court to hear issue.

The court shall sit at a special term to hear the case according to law and the practice of the
court, and shall have the same power to complete the jury as is now provided by law, and the

pay of such jurors, and the penalty for failure or refusal to appear, shall be the same as in other
cases.
### § 32-15-17. Issues tried at any term of court.

The trial of any action under this chapter may be had at any general, special, or adjourned
term of district court, held or called in the county in which such action may be pending, and such
action may be tried at any such term. If issue is not joined prior to the commencement of any
regular, special, or adjourned term, the plaintiff nevertheless may require said cause to be tried
on such day thereof as the court may order, but plaintiff shall serve upon the opposite party, or
parties, a seven days' notice of trial, specifying the date of trial, as fixed by order of the court.
### § 32-15-18. What complaint must contain.

The complaint must contain:
1. The name of the corporation, association, commission, or person in charge of the
public use for which the property is sought, who must be styled plaintiff.
2. The names of all owners and claimants of the property, if known, or a statement that
they are unknown, who must be styled defendants.
3. A statement of the right of the plaintiff.
4. If a right of way is sought, the complaint must show the location, general route, and
termini, and must be accompanied with a map thereof so far as the same is involved in
the action or proceeding.
5. A description of each piece of land sought to be taken and whether the same includes
the whole or only a part of an entire parcel or tract.
### § 32-15-19. Joinder, consolidation, and separation of proceedings.

All parcels of land lying in the county and required for the same public use may be included
in the same or separate proceedings, at the option of the plaintiff, but the court may consolidate
or separate them to suit the convenience of parties.
### § 32-15-20. Who may defend.

All persons in occupation of, or having or claiming an interest in, any of the property
described in the complaint or in the damages for the taking thereof, though not named, may
appear, plead, and defend, each in respect to such person's own property or interest, or that
claimed by such person, in like manner as if named in the complaint.
### § 32-15-21. Power of court.

1. The court shall have power:
a. To regulate and determine the place and manner of making connections and
crossings, or of enjoying the common use mentioned in subsection 6 of section
32-15-04.
b. To hear and determine all adverse or conflicting claims to the property sought to
be condemned and to the damages for the property.
c. To determine the respective rights of different parties seeking condemnation of
the same property.
2. Notwithstanding any other provision of law, if a route permit is required under chapter
49-22 or 49-22.1, the court may order the taking by eminent domain conditioned on
the receipt of the route permit.
### § 32-15-22. Assessment of damages.

The jury, or court, or referee, if a jury is waived, must hear such legal testimony as may be
offered by any of the parties to the proceedings and thereupon must ascertain and assess:
1. The value of the property sought to be condemned and all improvements thereon
pertaining to the realty and of each and every separate estate or interest therein. If it
consists of different parcels, the value of each parcel and each estate and interest
therein shall be separately assessed.

2. If the property sought to be condemned constitutes only a part of a larger parcel, the
damages which will accrue to the portion not sought to be condemned by reason of its
severance from the portion sought to be condemned and the construction of the
improvement in the manner proposed by the plaintiff.
3. If the property, though no part thereof is taken, will be damaged by the construction of
the proposed improvement, the amount of such damages.
4. If the property is taken or damaged by the state or a public corporation, separately,
how much the portion not sought to be condemned and each estate or interest therein
will be benefited, if at all, by the construction of the improvement proposed by the
plaintiff, and if the benefit shall be equal to the damages assessed under subsections
2 and 3, the owner of the parcel shall be allowed no compensation except the value of
the portion taken, but if the benefit shall be less than the damages so assessed the
former shall be deducted from the latter and the remainder shall be the only damages
allowed in addition to the value of the portion taken.
5. As far as practicable, compensation must be assessed separately for property actually
taken and for damages to that which is not taken.
### § 32-15-22.1. Eminent domain - Compensation for moving personal property.

Repealed by S.L. 1973, ch. 407, § 17.
### § 32-15-23. When right to damages accrues.

For the purpose of assessing compensation and damages, the right thereto shall be
deemed to have accrued at the date of the taking and its actual value at that date shall be the
measure of compensation for all property actually to be taken, and the basis of damages to the
property not actually taken, but injuriously affected, in all cases when such damages are
allowed as provided in section 32-15-22. The time of the taking shall be determined by the
court.
### § 32-15-24. When title defective.

If the title acquired is found to be defective from any cause, the plaintiff again may institute
proceedings to acquire the same as in this chapter prescribed.
### § 32-15-25. When judgment paid.

The plaintiff, within thirty days after the entry of final judgment, must pay the sum of money
assessed, except where school or public land upon which no contract is outstanding is taken for
public use under this chapter, the plaintiff shall pay for such land as follows: one-fifth of the sale
price in cash at the time of the sale; one-fifth of the purchase price each five years thereafter on
the anniversary date of the sale, with interest at the rate of not less than three percent per
annum, payable annually in advance.
### § 32-15-26. Payment or deposit - Proceedings annulled.

Payment may be made to the defendant entitled thereto, or the money may be deposited in
court for the defendant and be distributed to those entitled thereto. If the money is not so paid or
deposited, the defendant may have execution as in civil actions, unless execution is stayed by
order of the court pending a motion for a new trial or on appeal, and if the money cannot be
made on execution, the court upon a showing to that effect must set aside and annul the entire
proceedings.
### § 32-15-27. Final order - Filing.

When payments have been made as required in sections 32-15-25 and 32-15-26, the court
must make a final order of condemnation, which must describe the property condemned and the
purposes of such condemnation. A copy of the order must be filed in the office of the recorder of
the county and thereupon the property described therein shall vest in the plaintiff for the
purposes therein specified.

### § 32-15-28. Public corporation bound by judgment.

In the event that any property is being acquired by any public corporation through
condemnation proceedings, such public corporation shall be bound by the judgment rendered
therein and within six months after the entry of such a judgment shall pay into court the full
amount of the judgment on account of damages. If the public corporation shall dismiss the
action prior to the entry of judgment thereon, the court shall award to the defendant reasonable
actual or statutory costs, or both, which shall include reasonable attorney's fees.
### § 32-15-29. When possession taken - How money paid defendant - Acceptance -

Abandonment of defenses.
At any time after the entry of judgment, whenever the plaintiff shall have paid to the
defendant, or into court for the defendant, the full amount of the judgment, the district court in
which the proceeding was tried, upon notice of not less than three days, may authorize the
plaintiff to take possession of and use the property during the pendency of and until the final
conclusion of the litigation and, if necessary, may stay all actions and proceedings against the
plaintiff on account thereof. The defendant, who is entitled to the money paid into court for the
defendant upon judgment, shall be entitled to demand and receive the same at any time
thereafter upon obtaining an order therefor from the court. The court, or a judge thereof, upon
application made by such defendant, shall order and direct that the money so paid into court for
the defendant be delivered to the defendant upon the defendant's filing a satisfaction of the
judgment, or upon the defendant's filing a receipt therefor and an abandonment of all defenses
to the action or proceeding except as to the amount of damages that the defendant may be
entitled to in the event that a new trial shall be granted. A payment to a defendant as aforesaid
shall be held to be an abandonment by such defendant of all defenses interposed by the
defendant, except the defendant's claim for greater compensation.
### § 32-15-30. Payment of money into court at risk of plaintiff.

The payment of the money into court as provided for in this chapter shall not discharge the
plaintiff from liability to keep the said fund full and without diminution, but such money shall be
and remain as to all accidents, defalcations, or other contingencies as between the parties to
the proceedings at the risk of the plaintiff, and shall remain so until the amount of the
compensation or damages finally is settled by judicial determination and until the court awards
the money, or such part thereof as shall be determined upon, to the defendant, and until the
defendant is authorized or required by order of court to take it. If for any reason the money at
any time shall be lost, or otherwise abstracted or withdrawn, through no fault of the defendant,
the court shall require the plaintiff to make and keep the sum good at all times until the litigation
finally is brought to an end, and until paid over or made payable to the defendant by order of the
court, as provided in section 32-15-29, and until such time or times the clerk of court shall be
deemed to be the custodian of the money and shall be liable to the plaintiff upon the clerk's
official bond for the same, or any part thereof, if for any reason it is lost, or otherwise abstracted
or withdrawn.
### § 32-15-31. Deposit of money with state treasurer.

The court may order the moneys to be deposited in the state treasury and in such case the
state treasurer shall receive all such moneys, duly receipt for and safely keep the same in a
special fund to be entered on the state treasurer's books as a condemnation fund for such
purpose, and for such duty the state treasurer shall be liable to the plaintiff upon the state
treasurer's official bond. The state treasurer shall pay out such money so deposited in such
manner and at such times as the court or judge thereof by order may direct.
### § 32-15-32. Costs.

The court may in its discretion award to the defendant reasonable actual or statutory costs
or both, which may include interest from the time of taking except interest on the amount of a
deposit which is available for withdrawal without prejudice to right of appeal, costs on appeal,
and reasonable attorney's fees for all judicial proceedings. If the defendant appeals and does

not prevail, the costs on appeal may be taxed against the defendant. In all cases when a new
trial has been granted upon the application of the defendant and the defendant has failed upon
such trial to obtain greater compensation than was allowed the defendant upon the first trial, the
costs of such new trial shall be taxed against the defendant.
### § 32-15-33. Rules of practice.

Except as otherwise provided in this chapter, the provisions of the North Dakota Rules of
Civil Procedure are applicable to and constitute the rules of practice in the proceedings
mentioned in this chapter.
### § 32-15-34. New trials and appeals.

The provisions of this code relative to new trials and appeals, except insofar as they are
inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this
chapter, but upon the payment of the damages assessed the plaintiff shall be entitled to enter
into, improve, and hold possession of the property sought to be condemned as provided in
section 32-15-29 and to devote the same to the public use in question, and no motion for a new
trial or appeal after such payment shall retard the contemplated improvement in any manner.
Any money which shall have been deposited, as provided in section 32-15-29, shall be applied
to the payment of the recovery upon a new trial and the remainder, if there is any, shall be
returned to the plaintiff.
### § 32-15-35. Eminent domain proceedings - Costs of defendant to be paid when

proceedings withdrawn or dismissed by party bringing the proceedings.
Whenever the state acting by and through its officers, departments, or agencies, or any
municipality or political subdivision of this state acting by and through its officers, departments,
or agencies, or any public utility, corporation, limited liability company, association, or other
entity which has been granted the power of eminent domain by the state, shall commence
eminent domain proceedings against any land within this state and thereafter withdraws or has
such proceedings dismissed without agreement of the defendant, the state, municipality,
political subdivision, public utility, corporation, limited liability company, association, or entity
commencing such eminent domain proceedings shall be liable for and pay to the owner of such
land all court costs, expenses, and fees, including reasonable attorney's fees as shall be
determined by the court in which the proceedings were filed.
