The Cass County Water Resource District wanted to acquire the Sauvageau property for a flood control project. That means flooding the property. Removing all trees and vegetation, taking dirt. Putting it underwater, permanently. Cutting off the public access road. And removing the Sauvageau home.

The District offered to buy the fee interest from the Sauvageaus for $460,000, the appraised value of the fee interest. They declined. So the District offered $460,000 for a permanent easement. Also declined.

Next up, eminent domain, with the District seeking a “permanent right of way easement” by quick take. We’re taking it now, so you have a few months to get out of your home and get off the land. The Sauvageaus objected. You might be able to take our property for a flood control project, but you can’t take our property by quick take. Under the North Dakota Constitution, quick take is reserved for acquisitions of “rights of way.”

But wait, the District countered, we are taking a right of way: we’re taking is a permanent easement. It’s right there in the quick take petition. The Sauvageaus responded that the District might call it an “easement,” but in reality, it was trying to get their fee simple interest. The District sought to acquiring the entire property (seeking possession “upon, over, in, under, across, and through” their land). The District is going to permanently occupy the land and cut off access. The District offered compensation was $460,000, the value the District’s appraiser assigned to the fee simple interest (the appraiser also valued the reverter at $0).

In Sauvageau v. Bailey, No. 2022080 (Apr. 28, 2020), the North Dakota Supreme Court agreed with the owners. Although labeled a “right of way,” the interest the District actually sought to acquire is a fee simple interest.

On the basis of the pleadings and the facts in the record, as a matter of law the District is taking much more than an easement or right of way in the Sauvageaus’ property. The District is not acquiring a strip or a parcel of the Sauvageaus’ property for a right of way. The District intends to close the public road, remove all structures from the property, engage in disturbance of the surface and subsurface, and inundate the property with water. The District is taking the entire property for full value while leaving the Sauvageaus with only a reverter interest with no value.

Slip op. at 9-10.

Thus, no quick take. “By labeling the interest in the Sauvageaus’ property as a ‘permanent right of way easement,” the District is attempting to evade the requirements and property owner protections of [the straight (slow) take process].” Slip op. at 10.

Sauvageau v. Bailey, No. 20220080 (N.D. Apr. 28, 2022)