Public Power, Private Gain: North Dakota



North Dakota has not seen any classic takings for private development in the past five years. The only similar condemnation involved a private farm obtaining access to water across another private party’s land. While this was a condemnation for private use, it involves the somewhat unusual legal issues associated with water access in the western part of the country. Overall, then, North Dakota local governments do not use eminent domain to transfer property to private developers.

Private Use Condemnations


Ransom County

The Kaspari family owns a piece of farmland in Ransom County that is located between the Sheyenne River and another piece of farmland owned by Mougey Farms. In 1985, Mougey Farms leased the Kasparis’ land for the 10-year term, so that it could deliver water for its irrigation needs from the river to the Mougey property. The parties executed a written easement allowing Mougey to run water through the irrigation system on the Kasparis’ land to Mougey’s land. The easement apportioned ownership of the irrigation system, and stipulated that the easement would terminate when Mougey no longer leased the Kaspari land.


At the end of the lease term, the Kasparis informed Mougey Farms that it would not renew the lease, nor continue to allow Mougey to pump water through the irrigation system to Mougey’s land. Mougey sued, seeking to continue pumping water across the Kasparis’ land by virtue of an implied easement, easement by necessity, or easement by condemnation. Under the broad North Dakota water use statute, “any person” may exercise eminent domain to acquire property for application of water to a beneficial use.537 The court ruled that the statute was not applicable, and did not allow the acquisition of such property rights for a strictly private use. On appeal, however, the North Dakota Supreme Court reversed, holding that irrigation of farmland under a perfected water permit issued by the State Engineer is a beneficial use of water consistent with the “best interests of the people of North Dakota,” and thus constitutes a valid public use. As a consequence, the court ruled, any person (including a private individual) may condemn the land of other private parties for such purpose.538


*These numbers were compiled from news sources. Many cases go unreported, and news reports often do not specify the number of properties against which condemnations were filed or threatened.

†Court Administrator’s office of the North Dakota Supreme Court (includes condemnations for traditional public uses). These figures include only statistics for 2000.

537 N.D.C.C. § 61-01-04.

538 Mougey Farms v. Kaspari, 579 N.W. 2d 583, 590 (N.D. 1998).