IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 94

City of West Fargo, a political subdivision

of the State of North Dakota, Plaintiff and Appellee

v.

Mark Alexander McAllister, Defendant and Appellant

and

Alerus Financial, N.A.; 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,

devisees, personal representatives,

creditors or otherwise, Defendants 

No. 20210360

Appeal from the District Court of Cass County, East Central Judicial District, 

the Honorable Susan L. Bailey, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Christopher M. McShane, West Fargo, ND, for plaintiff and appellee.

Jonathan T. Garaas, Fargo, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MAY 12, 2022 

STATE OF NORTH DAKOTA
1

City of West Fargo v. McAllister

No. 20210360

Jensen, Chief Justice.

[¶1] Mark McAllister appeals from an amended judgment of condemnation 

allowing the City of West Fargo to use its eminent domain power to acquire a 

right of way across his property. We conclude the district court did not err in 

holding West Fargo was authorized to use quick-take eminent domain 

procedures for its sewage improvement project. We further conclude the court 

did not abuse its discretion in granting West Fargo’s motion in limine to 

exclude testimony from trial that the taking impacted McAllister’s property’s 

conformance with the city’s setback requirements. We affirm.

I

[¶2] The relevant facts of this case are recited in City of W. Fargo v. 

McAllister, 2021 ND 136, ¶¶ 2-5, 962 N.W.2d 591:

In August 2017, West Fargo passed a resolution determining 

it was necessary to construct a sewer improvement project. The 

project consisted of the design and installation of two sewer pipes 

between West Fargo and Fargo. To complete the project, West 

Fargo had to acquire a right of way across certain private property, 

including McAllister’s.

West Fargo sued McAllister, seeking to use its quick-take 

eminent domain power to acquire immediate possession of a right 

of way across McAllister’s property. West Fargo appraised the 

compensation for the property rights obtained on McAllister’s 

property at $36,000 and deposited that amount with the clerk of 

court. McAllister resisted, arguing West Fargo was prohibited from 

taking immediate possession of a right of way across his property. 

After an evidentiary hearing, the district court concluded West 

Fargo was entitled to take immediate possession of a right of way 

across McAllister’s property.

Before the trial on the issue of McAllister’s just 

compensation, West Fargo moved to exclude testimony that the 

taking caused McAllister’s property to become nonconforming 

under West Fargo City Ordinances based on front yard setback 

requirements. The district court granted the motion, concluding as 
2

a matter of law that the easement obtained by West Fargo had no 

effect on the front yard setback requirements under the West 

Fargo City Ordinances and ordered that testimony relating to that 

issue would be excluded at trial.

The parties stipulated to the entry of a condemnation 

judgment in favor of West Fargo. West Fargo agreed to pay 

McAllister $36,000; however, the determination of McAllister’s 

costs and disbursements, including attorney’s fees and appraisal 

expenses, was reserved for a later date. The parties also stipulated 

to the entry of an order certifying the condemnation judgment as 

final under N.D.R.Civ.P. 54(b). The district court entered a 

condemnation judgment and certified the judgment as final under 

Rule 54(b).

[¶3] In the first appeal, because McAllister’s costs and disbursements, 

including reasonable attorney’s fees, had been left undecided, this Court 

concluded the district court abused its discretion by inappropriately certifying 

the condemnation judgment as final under N.D.R.Civ.P. 54(b). McAllister, 2021 

ND 136, ¶¶ 12-13. The appeal was therefore dismissed without reaching the 

merits. Id. On remand the court entered an amended judgment of 

condemnation including an award of McAllister’s attorney’s fees and costs. 

Neither party has challenged the award of attorney’s fees and costs.

II

[¶4] McAllister raises multiple legal issues contending the district court erred 

in concluding West Fargo was authorized to use quick-take eminent domain 

procedures under N.D.C.C. ch. 40-22 for its sewage improvement project.

[¶5] “Statutory interpretation is a question of law, fully reviewable on 

appeal.” Schmitz v. N. Dakota State Bd. of Chiropractic Exam’rs, 2022 ND 52, 

¶ 9, 971 N.W.2d 892 (quoting State v. Bearrunner, 2019 ND 29, ¶ 5, 921 N.W.2d 

894). “The primary purpose of statutory interpretation is to determine 

legislative intent.” Id. “Words in a statute are given their plain, ordinary, and 

commonly understood meaning, unless defined by statute or unless a contrary 

intention plainly appears.” Id.; see N.D.C.C. § 1-02-02.
3

[¶6] Our review of constitutional provisions is similar to our interpretation of 

statutory provisions. We have summarized our review of constitutional 

provisions as follows:

When interpreting constitutional provisions, “we apply 

general principles of statutory construction.” State ex rel. 

Heitkamp v. Hagerty, 1998 ND 122, ¶ 13, 580 N.W.2d 139 (quoting 

Comm’n on Med. Competency v. Racek, 527 N.W.2d 262, 266 (N.D. 

1995)). We aim to give effect to the intent and purpose of the people 

who adopted the constitutional provision. Id. We determine the 

intent and purpose of a constitutional provision, “if possible, from 

the language itself.” Kelsh v. Jaeger, 2002 ND 53, ¶ 7, 641 N.W.2d 

100. “In interpreting clauses in a constitution we must presume 

that words have been employed in their natural and ordinary 

meaning.” Cardiff v. Bismarck Pub. Sch. Dist., 263 N.W.2d 105, 

107 (N.D. 1978).

“A constitution ‘must be construed in the light of 

contemporaneous history—of conditions existing at and prior to its 

adoption. By no other mode of construction can the intent of its 

framers be determined and their purpose given force and effect.’” 

Hagerty, 1998 ND 122, ¶ 17, 580 N.W.2d 139 (quoting Ex parte 

Corliss, 16 N.D. 470, 481, 114 N.W. 962, 967 (1907)). Ultimately, 

our duty is to “reconcile statutes with the constitution when that 

can be done without doing violence to the language of either.” State 

ex rel. Rausch v. Amerada Petroleum Corp., 78 N.D. 247, 256, 49 

N.W.2d 14, 20 (1951). Under N.D. Const. art. VI, § 4, we “shall not 

declare a legislative enactment unconstitutional unless at least 

four of the members of the court so decide.”

Sorum v. State, 2020 ND 175, ¶¶ 19-20, 947 N.W.2d 382.

[¶7] Article I, section 16, of the North Dakota Constitution, states in relevant 

part:

When the state or any of its departments, agencies or political 

subdivisions seeks to acquire right of way, it may take possession 

upon making an offer to purchase and by depositing the amount of 

such offer with the clerk of the district court of the county wherein 

the right of way is located. The clerk shall immediately notify the 
4

owner of such deposit. The owner may thereupon appeal to the 

court in the manner provided by law, and may have a jury trial, 

unless a jury be waived, to determine the damages . . . .

This language adopted in 1956 “authorize[d] the legislature to enact ‘quick 

take’ condemnation procedures for the state and its departments, agencies, or 

political subdivisions.” Eberts v. Billings Cnty. Bd. of Comm’rs, 2005 ND 85, ¶ 

10, 695 N.W.2d 691; see also Sauvageau v. Bailey, 2022 ND 86, ¶ 13; Johnson 

v. Wells Cnty. Water Res. Bd., 410 N.W.2d 525, 528-29 (N.D. 1987) (superseded 

by statute recognized by Sauvageau, at ¶ 18). “The ‘quick take’ authorization 

in N.D. Const. art. I, § 16 is not self-executing, and legislation is necessary to 

effectuate the quick take authority.” Eberts, at ¶ 10.

[¶8] Section 40-22-01, N.D.C.C., provides municipalities with authority to 

defray the expense of certain types of improvements, including water supply 

and sewerage systems, by special assessments:

Any municipality, upon complying with the provisions of this 

chapter, may defray the expense of any or all of the following types 

of improvements by special assessments:

1. The construction of a water supply system, or a sewerage 

system, or both, or any part thereof, or any improvement 

thereto or extension or replacement thereof, including the 

construction and erection of wells, intakes, pumping 

stations, settling basins, filtration plants, standpipes, water 

towers, reservoirs, water mains, sanitary and storm sewer 

mains and outlets, facilities for the treatment and disposal 

of sewage and other municipal, industrial, and domestic 

wastes, and all other appurtenances, contrivances, and 

structures used or useful for a complete water supply and 

sewerage system.

. . . .

(Emphasis added.) Section 40-22-05, N.D.C.C., provides an exception to 

eminent domain proceedings under N.D.C.C. ch. 32-15, i.e., a quick-take 

procedure, when the interest sought for an improvement authorized under 

N.D.C.C. ch. 40-22 is a “right of way,” stating in relevant part:
5

Whenever property required to make any improvement authorized 

by this chapter is to be taken by condemnation proceedings, the 

court, upon request by resolution of the governing body of the 

municipality making such improvement, shall call a special term 

of court for the trial of the proceedings and may summon a jury for 

the trial whenever necessary. The proceedings shall be instituted 

and prosecuted in accordance with the provisions of chapter 32-15, 

except that when the interest sought to be acquired is a right of way

for the opening, laying out, widening, or enlargement of any street, 

highway, avenue, boulevard, or alley in the municipality, or for the 

laying of any main, pipe, ditch, canal, aqueduct, or flume for 

conducting water, storm water, or sewage, whether within or 

without the municipality, the municipality may make an offer to 

purchase the right of way and may deposit the amount of the offer 

with the clerk of the district court of the county wherein the right 

of way is located, and may thereupon take possession of the right of 

way forthwith. . . . The municipality may levy special assessments 

to pay all or any part of the judgment and at the time of the next 

annual tax levy may levy a general tax for the payment of the part 

of the judgment as is not to be paid by special assessment.

(Emphasis added.) 

[¶9] McAllister argues the phrase “right of way,” as used in N.D. Const. art. 

I, § 16, and N.D.C.C. § 40-22-05, is restricted or limited only to highway 

purposes and incidental uses. To support his argument McAllister relies in part 

on Tormaschy v. Hjelle, 210 N.W.2d 100, 102-04 (N.D. 1973) (defining “right of 

way” in the relevant constitutional provision, as it relates to a roadway, to 

include a sewage lagoon in conjunction with sanitary facilities at an interstate 

highway rest area), and N.D.C.C. § 24-01-01.1(38) (defining “right of way” as 

“land, property, or interest therein, acquired for or devoted to highway 

purposes”). Nevertheless, while these definitions would necessarily apply in 

the context of N.D.C.C. title 24 and concern the highways, the definitions

would not necessarily apply when a different meaning is plainly intended by a 

statute in another title. See N.D.C.C. § 1-01-09 (“Whenever the meaning of a 

word or phrase is defined in any statute, such definition is applicable to the 

same word or phrase wherever it occurs in the same or subsequent statutes, 

except when a contrary intention plainly appears.”).
6

[¶10] West Fargo argues the quick-take procedure is not limited only to a right 

of way for highway purposes and the language of N.D.C.C. § 40-22-05 

specifically contemplates a broader definition. West Fargo asserts that nothing 

in this section requires a sewage project to be a component of a road project 

and the statute specifically separates road projects and sewage projects with 

the word “or.” West Fargo also notes this Court has previously suggested “right 

of way” may mean different things in different contexts. See, e.g., EOG Res. 

Inc., v. Soo Line R. Co., 2015 ND 187, ¶ 29, 867 N.W.2d 308. West Fargo argues 

McAllister’s narrow interpretation of N.D.C.C. § 40-22-05 would also render 

ineffective the immediate possession language used in the water resource 

district eminent domain statute. See N.D.C.C. § 61-16.1-09(2)(b) (allowing 

water resource districts to acquire right of way by quick-take eminent domain 

as authorized by N.D. Const. art. I, § 16). We agree the statute permits the use 

of quick-take procedures for the sewer line at issue in this case. McAllister 

argues that even if the quick-take procedure is statutorily allowed, the use of 

quick-take is still limited by the constitution.

[¶11] Here, the district court concluded that West Fargo has the ability to 

condemn private property rights for the sewer improvement project and that 

the quick-take authority under N.D.C.C. § 40-22-05 exists in this situation. 

The phrase “right of way” must be construed in the context as it is used in the 

relevant constitutional and statutory provisions.

[¶12] Quick-take procedures were included within an amendment to the North 

Dakota Constitution in 1956. At the time of the amendment the definition of 

right of way included the following: “a Law. A right of passage over another 

person’s ground. See EASEMENT, 4; SERVITUDE. . . . e The land, other than 

storage or station yards, occupied by a railroad for its tracks, esp. for its main 

line; also, the strip of land over which a public road is built, or the strip over 

which an electric power transmission line passes.” Webster’s New International 

Dictionary 2148 (2d ed. 1954). One legal dictionary from the time defined right 

of way as:

The right of passage or of way is a servitude imposed by law or by 

convention, and by virtue of which one has a right to pass on foot, 
7

or horseback, or in a vehicle, to drive beasts of burden or carts, 

through the estate of another. When this servitude results from the 

law, the exercise of it is confined to the wants of the person who 

has it. When it is the result of a contract, its extent and the mode 

of using it is regulated by the contact.

“Right of way,” in its strict meaning, is the right of passage 

over another man’s ground; and in its legal and generally accepted 

meaning, in reference to a railway, it is a mere easement in the 

lands of others, obtained by lawful condemnation to public use or 

by purchase. It would be using the term in an unusual sense, by 

applying it to an absolute purchase of the fee-simple of lands to be 

used for a railway or any other kind of a way.

“Right of way” has a twofold significance, being sometimes 

used to mean the mere intangible right to cross, a right of crossing, 

a right of way, and often used to otherwise indicate that strip of 

land which a railroad appropriates to its own use, and upon which 

it builds its roadbed.

The “right of way” is a space of conventional width for one or 

more railroad tracks, while a “railroad yard” might be extended 

indefinitely.

Black’s Law Dictionary 1489 (4th ed. 1957); cf. Black’s Law Dictionary 1587 

(11th ed. 2019) (defining “right-of-way” as “(18c) 1. The right to pass through 

property owned by another. • A right-of-way may be established by contract, 

by longstanding usage, or by public authority (as with a highway). Cf. 

EASEMENT. 2. The right to build and operate a railway line or a highway on 

land belonging to another, or the land so used. . . . 4. The strip of land subject 

to a nonowner’s right to pass through.”). Courts have also said a right of way 

may mean an easement. See McCotter v. Barnes, 101 S.E.2d 330, 334 (N.C. 

1958) (“The term ‘right of way’ has a two-fold meaning: it may be used to 

designate an easement, and, apart from that, it may be used as descriptive of 

the use or purpose to which a strip of land is put.”); Graybill v. Hassel, 74 A.2d 

686, 688 (Pa. Super. Ct. 1950) (“In general a right-of-way is merely an 

easement, though not necessarily so. A right-of-way may consist either of the 

fee or merely of an easement of passage and use, and whether the one or the 

other is intended in a particular instance must be determined by the 

agreement as a whole.” (Citations omitted.)). We conclude the term right of way 

was not limited only to roadways and highways at the time of the constitutional 
8

adoption of quick-take authority, and the right of way interest as used in the 

1956 amendment allows for the sewer line at issue here.

[¶13] In the context of the quick-take procedure, N.D.C.C. § 40-22-05, adopted 

in 1961 shortly after the constitutional amendment, plainly states that a “right 

of way” interest exists “for the laying of any main, pipe, ditch, canal, aqueduct, 

or flume for conducting water, storm water, or sewage.” See also N.D.C.C. § 40-

22-02 (“The governing body of any municipality may establish, maintain, and 

alter a general system of sewerage for the municipality in such manner and 

under such regulations as it shall deem expedient and proper.”); N.D.C.C. § 40-

22-03 (“When it is necessary to conduct the sewage of a municipality beyond 

the municipal limits . . ., the governing body, by grant, purchase, or 

condemnation proceedings, may acquire private property over which to 

construct the sewer . . . .”). The plain language of this portion of the statute 

providing for a “right of way,” which follows the disjunctive word “or,” is limited 

to a right of way for the items listed in the statute and includes the sewer 

system project in this case. See State ex rel. Stenehjem v. FreeEats.com, Inc., 

2006 ND 84, ¶ 14, 712 N.W.2d 828 (“Terms or phrases separated by ‘or’ have 

separate and independent significance.” (internal citations omitted)).

[¶14] Contrary to McAllister’s assertions, the relevant constitutional and 

statutory language does not restrict or limit “right of way” only to roadways 

and highways. We conclude the district court did not err in holding the quicktake procedures were authorized because the interest sought to be acquired 

includes a right of way for the sewer line at issue in this case.

[¶15] The district court also concluded a “special assessment” is not required 

to be used to pay for the property interest taken by the municipality for the 

improvement. Although N.D.C.C. ch. 40-22 is titled, “Improvements by Special 

Assessment Method,” “[a] caption may not be used to determine legislative 

intent or the legislative history for any statute.” N.D.C.C. § 1-02-12. The

relevant statutory language does not require a municipality to utilize a special 

assessment to fund an authorized improvement, but is instead permissive 

rather than mandatory. “The word ‘may’ is usually used ‘to imply permissive, 

optional, or discretional, and not mandatory action or conduct.’” State v. 
9

Houkom, 2021 ND 223, ¶ 9, 967 N.W.2d 801 (quoting State v. Glaser, 2015 ND 

31, ¶ 18, 858 N.W.2d 920). See also N.D.C.C. § 40-22-08 (providing while a 

municipality may create sewer districts for a special assessment improvement 

project, “[n]othing herein . . . shall prevent a municipality from making and 

financing any improvement and levying special assessments therefor under 

any alternate procedure set forth in this title”). We conclude N.D.C.C. ch. 40-

22 does not require West Fargo to pay for a sewer improvement project 

authorized under the chapter with special assessments in order to use the 

quick-take procedure.

III

[¶16] McAllister argues the district court erred in excluding all testimony and 

argument regarding his claim the sewer easement had an adverse impact on 

his property and erred in preventing him from presenting any testimony on his 

theory for severance damages to the jury. The district court’s ruling was much 

narrower in scope, and limited to granting West Fargo’s motion in limine to 

exclude testimony from trial that the taking impacted McAllister’s property’s 

conformance with the city’s setback requirements. The district court has 

discretion over evidentiary matters, including a decision to exclude the 

testimony of a witness. Linstrom v. Normile, 2017 ND 194, ¶ 12, 899 N.W.2d 

287. A court abuses its discretion when it acts “arbitrarily, unconscionably, or 

unreasonably, or when its decision is not the product of a rational mental 

process.” Id.

[¶17] Here, the district court concluded the sewer easement does not impact 

McAllister’s front yard setback. The court explained:

The front yard requirements for property in the “A” district 

are found at section 4-421.4 of the City ordinances. Under W.F. 

Ord. 4-421.4(f) [sic] requires a minimum front yard for property 

fronting an arterial road of “150’ from centerline or 75’ from the 

established right-of[-]way, whichever is greater.” By definition, 

under the Zoning Ordinances, the minimum front yard 

measurement is in reference to the arterial road’s centerline or the 

arterial road’s established related right-of-way. Defendant strains 

application of the City Ordinances in his argument that the 
10

definition of right-of-way from the subdivision regulations, which 

by their terms relate to the subdivision regulations, must be read 

in conjunction with the definition of a minimum front yard under 

the Zoning Ordinance. The term right-of-way as used in W.F. Ord[.]

4-421.4(f) is limited to its context, which is not just any right-ofway, but the particular established right-of-way related to the 

arterial road.

The district court specifically rejected as a matter of law McAllister’s assertion 

the city’s recently-acquired permanent right-of-way easement created a new 

benchmark or reference line from which a minimum front yard is to be 

measured. The court therefore concluded all testimony and argument claiming 

the sanitary sewer easement obtained in this case has an impact on the front 

yard setback requirement found in W.F. Ord. 4-421.4(f) was excluded and 

inadmissible at trial. 

[¶18] Interpretation of the ordinance was a question of law. See Arnegard v. 

Arnegard Twp., 2018 ND 80, ¶ 14, 908 N.W.2d 737 (“Ordinance interpretation, 

like statutory interpretation, is a question of law subject to full review upon 

appeal.”). We agree with the district court’s interpretation of the ordinance and

with the court’s determination that McAllister sought to admit evidence based 

on an incorrect interpretation. We conclude the court did not abuse its 

discretion by precluding testimony and argument on a measure of damages 

premised on McAllister’s erroneous interpretation of the city’s zoning 

ordinances.

IV

[¶19] We have considered the remaining issues and arguments raised by 

McAllister and conclude they are either without merit or unnecessary to our 

decision. The district court correctly determined that quick-take procedures 

were available to the City of West Fargo in the sewer project at issue in this 

case. The district court did not abuse its discretion on excluding evidence that 

relied upon an incorrect interpretation of West Fargo’s zoning ordinance. The 

amended judgment is affirmed.
11

[¶20] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte