Southeast Cass Water Resource District v. Burlington Northern Railroad

Because I believe modern constitutional jurisprudence requires the trial court to determine whether the statutory allocation of 100 percent of the cost to BN Railroad was fair and reasonable under all of the circumstances, I respectfully dissent.

I agree with the majority that N.D.C.C. § 61-16.1-42 places solely upon the railroad company the responsibility for payment of the costs of building and maintaining bridges and culverts where a drain intersects a railroad. This was the prevailing attitude at the time its predecessor statute was enacted in the late 1800s. One author has noted in the…