North Dakota Easement and Eminent Domain Laws (2026)

In North Dakota, a prescriptive easement takes 20 years. The North Dakota Supreme Court has held that a use of land creates an easement by prescription "if the use is adverse, continuous and uninterrupted, and for the 20 year period of prescription" (Fischer v. Berger, 2006 ND 48, 710 N.W.2d 886). On eminent domain, article I, section 16 of the North Dakota Constitution says economic development is not a public use and bars taking private property for a private individual or entity "unless that property is necessary for conducting a common carrier or utility business," and N.D.C.C. § 32-15-01 repeats both rules. Carbon dioxide pipelines are on the statutory list of purposes for which property may be condemned (N.D.C.C. § 32-15-02(10)).

This page covers both halves of North Dakota law: easements between private landowners first, then the power to take private property. For other states, see our guide to easement laws by state.

Information last verified on 2026-10-20. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers North Dakota state law on private easements (N.D.C.C. chapter 47-05, the public-road provisions of chapter 24-07 and the North Dakota Supreme Court cases cited) and on condemnation of private property (N.D. Const. art. I, § 16; N.D.C.C. chapter 32-15; relocation assistance in chapter 54-01.1). It does not cover adverse possession of title (see North Dakota squatters rights and adverse possession), homeowners association covenants, zoning or regulatory takings, federal condemnation (covered in our national eminent domain guide), tribal land, or city and county ordinances.

What an Easement Is Under North Dakota Law

North Dakota's Century Code calls easements "servitudes." Section 47-05-01 lists the burdens on land that "may be attached to other land as incidents or appurtenances and then are called easements," and the right of way is one of them (N.D.C.C. § 47-05-01(3)).

A few rules in the same chapter shape every easement:

• Who can create one. "A servitude can be created only by one who has a vested estate in the servient tenement" (N.D.C.C. § 47-05-05).
• The owner cannot hold an easement over their own land. "A servitude thereon cannot be held by the owner of the servient tenement" (N.D.C.C. § 47-05-06).
• How far it reaches. "The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired" (N.D.C.C. § 47-05-07). A written easement is read by its terms; for an easement gained by use, its extent follows the nature of that use.

Express (Written) Easements

North Dakota's statute of frauds makes an agreement "for the sale, of real property, or of an interest therein" invalid unless it, or a note or memorandum of it, is in writing and subscribed by the party to be charged (N.D.C.C. § 9-06-04(3)).

Recording protects the easement holder against later buyers. "An unrecorded conveyance of real estate is void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate or any part of the same real estate" (N.D.C.C. § 47-19-41). Recorded easements show up in a title search at the county recorder; our guide to North Dakota property records explains where those records are kept.

North Dakota has an unusual limit on easement terms. N.D.C.C. § 47-05-02.1 provides: "Real property easements, servitudes, or any nonappurtenant restrictions on the use of real property, which become binding after July 1, 1977, shall be subject to the requirements of this section. These requirements are deemed a part of any agreement for such interests in real property whether or not printed in a document of agreement." The area covered must be properly described, and "the duration of the easement, servitude, or nonappurtenant restriction on the use of real property must be specifically set out, and in no case may the duration of any interest in real property regulated by this section exceed ninety-nine years." The same section adds that "no increase in the area of real property subject to the easement" may be made "except by negotiation" between the easement owner and the owner of the servient land (§ 47-05-02.1(3)).

Two federal conservation easements have shorter caps. A waterfowl production area easement acquired by the federal government and consented to by the governor or the appropriate state agency after July 1, 1985 "may not exceed fifty years," and one that exceeds fifty years or purports to be permanent "and is not extended by negotiation is void." A wetlands reserve program easement acquired by the federal government after July 1, 1991 "may not exceed thirty years" (§ 47-05-02.1(2)). Whether the section reaches an easement created by prescription or implication is not answered by its text.

Solar easements have their own rule: an easement for exposing a solar energy device to the sun "shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements" (N.D.C.C. § 47-05-01.1). Chapter 47-05 contains no provision on relocating an existing easement.

Landlocked Property: Easements by Necessity and Public-Road Petitions

The common-law easement by necessity. North Dakota recognizes easements implied by law. In Mougey Farms v. Kaspari, 1998 ND 118, 579 N.W.2d 583, the North Dakota Supreme Court restated, quoting its earlier decisions, that a way of necessity "arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is shut off from access to a road to the outer world by the land from which it is severed or by this land and the land of strangers." The definition turns on a conveyance that splits a tract and leaves one part shut off from a road.

The landlocked owner carries a heavy burden. "A party seeking an implied easement has the burden of proving the existence of the easement by clear and convincing evidence" (Griffeth v. Eid, 1998 ND 38, 573 N.W.2d 829). In Griffeth, the court upheld the denial of an easement by necessity where a neighbor had offered an easement across another lot and access through a city park had not been ruled out, saying the owner could seek one again "if he can establish, by clear and convincing evidence, no other alternative route is available." Even if a way of necessity is later found, the court said, the owner is "not automatically entitled to access giving him the 'best' use of his land."

The same opinion restated the elements of an easement implied from a preexisting use: "unity of title of the dominant and servient tenement and a subsequent severance; apparent, permanent, and continuous use; and, the easement must be important or necessary for the enjoyment of the dominant tenement."

A petition to open a public road. Chapter 24-07 gives landlocked owners a public-road route. When land "is surveyed or sold in tracts less than the original subdivision as established by the government survey" so that part of it "does not touch upon a public road," the board of county commissioners or board of township supervisors, "upon petition of such owner, may open a public road to gain access to any such tract or tracts when in the judgment of such board such public road is necessary and that it is of sufficient benefit to the county or township as a whole" (N.D.C.C. § 24-07-06). Several rules apply:

• The board decides; the statute says it "may" open the road.
• The road must benefit the county or township as a whole, not just the petitioner.
• The road may not exceed two rods (10.06 meters) in width unless the board judges that width insufficient for the travel on it.
• Damages to owners whose land the road crosses are agreed with or assessed by the board before the road is opened, worked or used; in assessing them the board weighs "the advantages and benefits the new road or alteration of an old one will confer on the claimant" as well as the disadvantages, and the county or township pays them (N.D.C.C. §§ 24-07-16, 24-07-30).
• A person aggrieved by the board's determination or damages award, including a refusal to lay out the road, may appeal to district court "within thirty days after the filing of such determination or award of damages" (N.D.C.C. § 24-07-22).

Section lines. Rural land often has access along a section line. Under N.D.C.C. § 24-07-03, "In all townships in this state, outside the limits of incorporated cities, and outside platted townsites, additions, or subdivisions recorded pursuant to sections 40-50.1-01 through 40-50.1-17 or recorded prior to July 1, 1987, under former chapter 40-50, the congressional section lines are considered public roads open for public travel to the width of thirty-three feet [10.06 meters] on each side of the section lines." The county commissioners may close a section line only on petition of a person with an interest in the adjoining land, after a public hearing and a finding of public benefit, and only on the grounds the section lists (no use for ten years, untravelable terrain, readily accessible alternate routes, or a dead end created by an interstate highway). Under § 24-07-03.1, an owner may petition the county commissioners or township supervisors for permission to improve a section line for agricultural travel; the petition "may be approved if the section line cannot be traveled due to natural obstacles or difficulty of terrain and if the petitioner does not have a readily accessible alternative route of travel," and "the petitioner must improve the section line or a portion of the section line at the petitioner's expense."

The "byroads" listing. Among the purposes for which eminent domain may be exercised, N.D.C.C. § 32-15-02(6) lists "Byroads leading from highways to residences and farms." The constitution and § 32-15-01 separately bar taking private property for the use of a private individual or entity except for a common carrier or utility business. Whether a private landowner can rely on the byroads listing to condemn an access road across a neighbor is not answered by the text of the statutes and is a question for a North Dakota lawyer. Apart from that listing, chapters 24-07, 32-15 and 47-05 contain no procedure designed for a private owner to condemn a private access road across a neighbor's land.

Water conveyance. A separate statute provides that "any person, corporation, limited liability company, or association may exercise the right of eminent domain to acquire for a public use any property or rights existing when found necessary for the application of water to beneficial uses," using the chapter 32-15 procedure (N.D.C.C. § 61-01-04). In Mougey Farms v. Kaspari, the North Dakota Supreme Court held that "irrigation of farmland under a perfected water permit satisfies the public use requirement" of that section and reinstated a farm's claim to condemn an easement to pump water across a neighbor's land. How that route fits with the constitutional and statutory bar on takings for the use of a private individual or entity is not answered by the text of either provision.

Prescriptive Easements in North Dakota: 20 Years of Adverse Use

North Dakota has no statute that lists the elements of a private prescriptive easement. They come from the North Dakota Supreme Court: "Under North Dakota law, a use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20 year period of prescription" (Fischer v. Berger, 2006 ND 48).

The 20-year period is the same length as the general limit on actions to recover land: "No action for the recovery of real property or for the possession thereof may be maintained, unless the plaintiff, or the plaintiff's ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action" (N.D.C.C. § 28-01-04). Our North Dakota statute of limitations guide covers the state's other filing deadlines.

Permission defeats the claim. In Fischer, the court held that "for purposes of acquisitive prescription, acquiescence of an owner cannot be distinguished from permission of an owner," and it described permission of an owner as "fatal to a claim of prescriptive use." A neighbor who crossed land with the owner's permission, or with the owner's mere acquiescence, does not gain a prescriptive easement from that use.

Public roads by prescription. A separate statute covers roads used by the public: "All public roads and highways within this state which have been or which shall be open and in use as such, during twenty successive years, hereby are declared to be public roads or highways" (N.D.C.C. § 24-07-01). The section applies whether or not the road was laid out, established and opened lawfully. The North Dakota Supreme Court has held that a party claiming a road by prescription under § 24-07-01 "must establish by clear and convincing evidence the general, continuous, uninterrupted and adverse use of the road by the public under a claim of right for 20 years" (McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332). The same opinion noted that the 20-year period "begins when the burden is placed on the land and relates back to the inception of the adverse use."

How this differs from adverse possession of title. Title by prescription arises from occupancy for the period that bars an action to recover the property (N.D.C.C. § 47-06-02), which is 20 years under § 28-01-04, and a separate 10-year track applies to a person in "actual open adverse and undisputed possession of the land under such title" who has paid all taxes and assessments (§ 47-06-03). Those are rules for owning the land itself; the easement elements in Fischer do not include paying taxes. Our guide to North Dakota squatters rights and adverse possession covers the title rules.

Can an Owner Prevent a Prescriptive Easement?

North Dakota has no statute that lets an owner block prescription by posting a sign or recording a notice. Chapter 47-05 (servitudes), chapter 28-01 (limitations of actions) and chapter 53-08 (recreational use of land) contain no such mechanism; chapter 53-08 limits landowner liability only.

What the case law does provide is the permission rule from Fischer v. Berger: because permission of an owner, and an owner's acquiescence, is fatal to a prescriptive claim, use that rests on the owner's permission does not ripen into an easement.

How an Easement Ends in North Dakota

N.D.C.C. § 47-05-12 lists the ways a servitude is extinguished:

"A servitude is extinguished: 1. By vesting of the right to the servitude and the right to the servient tenement in the same person; 2. By the destruction of the servient tenement; 3. By the performance of any act upon either tenement by the owner of the servitude or with the owner's assent if it is incompatible with its nature or exercise; or 4. When the servitude was acquired by enjoyment, by disuse thereof by the owner of the servitude for the period prescribed for acquiring title by prescription."

Disuse under subsection 4 ends only a servitude "acquired by enjoyment," meaning one gained through use such as a prescriptive easement. A written easement does not end under that subsection just because it goes unused. Subsection 1 is the merger rule: when one person comes to own both the easement and the land it burdens, the easement ends, which matches § 47-05-06.

Public roads laid out by a county or township board follow a separate rule: a road "not opened to public use within ten years from the time when it was laid out, or which thereafter is abandoned and not used for ten years, hereby is declared vacant" (N.D.C.C. § 24-07-31).

Eminent Domain in North Dakota

North Dakota's power to take private property comes from article I, section 16 of the state constitution and chapter 32-15 of the Century Code. For federal law and every other state, see our guide to eminent domain laws by state.

The constitution's takings clause reads:

"Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, unless the owner chooses to accept annual payments as may be provided for by law."

Three features of that sentence matter. It covers property "taken or damaged," not only property taken. Compensation must come first, either paid to the owner or paid into court. And the owner may choose annual payments where the law provides for them. The same section provides that "compensation shall be ascertained by a jury, unless a jury be waived" (N.D. Const. art. I, § 16).

Public Use Limits and Takings for Private Parties

The second paragraph of article I, section 16 limits what counts as a public use:

"For purposes of this section, 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. Private property shall 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."

The Century Code repeats both rules. Section 32-15-01 provides that 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," and that "notwithstanding any other provision of law, a public use or a public purpose does not include public benefits of economic development." In Kelo v. City of New London, 545 U.S. 469 (2005), the U.S. Supreme Court held that an economic-development taking under a comprehensive plan satisfied the federal public use requirement, while stating that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power"; North Dakota's text is one of those stricter state limits.

Before any property can be taken, N.D.C.C. § 32-15-05 requires that it 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."

Pipelines, Utilities and Carbon Dioxide

Section 32-15-02(10) lists among eminent-domain purposes "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." Under N.D.C.C. § 49-19-01, a person operating a pipeline in North Dakota "for the transportation of crude petroleum, gas, coal, or carbon dioxide to or for the public for hire, or engaged in the business of transporting crude petroleum, gas, coal, or carbon dioxide by pipelines" is a common carrier subject to chapter 49-19 as a common pipeline carrier.

In 2025, House Bill 1414 proposed amending §§ 32-15-02, 49-19-01, 49-19-11 and 49-19-19 "relating to the revocation of common carrier status of carbon dioxide pipelines" and repealing § 38-22-10. It failed on second reading in the House, 29 yeas to 55 nays. The listed statutes remain in force.

Other rules apply to energy projects:

• Route permits. Where 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" (N.D.C.C. § 32-15-21(2)).
• Carbon dioxide storage. A separate mechanism applies to underground storage: if a storage operator lacks the consent of all owners of a reservoir's pore space, "the commission may require that the pore space owned by nonconsenting owners be included in a storage facility and subject to geologic storage" (N.D.C.C. § 38-22-10). That decision rests with the Industrial Commission under chapter 38-22, not with a court under chapter 32-15. Before issuing the storage permit, the commission must find that the operator "has made a good-faith effort to get the consent of all persons who own the storage reservoir's pore space" and "has obtained the consent of persons who own at least sixty percent of the storage reservoir's pore space" (N.D.C.C. § 38-22-08).
• Unfair easement tactics. A person employed by a public utility to acquire easements for a facility sited under chapter 49-22 or 49-22.1 (energy conversion and transmission facilities, including gas and liquid transmission lines under chapter 49-22.1) may not use "harassment, threat, intimidation, misrepresentation, deception, fraud, or other unfair tactics" to induce an owner to grant an easement. If at least five landowners aggrieved by agents of the same utility sue, and the court finds those tactics were used in acquiring or attempting to acquire easements from at least five separate landowners, the court must declare the easements void and may let the landowners keep the compensation or award "up to three times the amount of the compensation involved as damages"; it must award costs and reasonable attorney's fees to prevailing plaintiffs (N.D.C.C. §§ 49-22-16.1, 49-22.1-14).
• Electric transmission payments. An easement for an electric transmission facility that a utility acquires by contract after July 1, 1979 "shall give the landowner the option of receiving a single sum payment for the easement or receiving payment in annual installments of equal amounts including interest on the outstanding balance," at the average Bank of North Dakota certificate-of-deposit rate. The option does not apply to an easement paying less than five thousand dollars, and the utility's right-of-way agent must tell the owner about it (N.D.C.C. § 49-22-16.2).

What a Condemnor Must Do Before Filing

Survey notice. Under N.D.C.C. § 32-15-06, as amended by Senate Bill 2379 (2025), the condemnor "may not survey the land until thirty days after delivery of the notice, unless the owner consents to an earlier survey date." If the survey does not happen "within ninety days of delivery of the notice," the condemnor "shall deliver a new notice of intent to survey through certified mail."

Negotiation and an offer based on an appraisal. "A condemnor shall make every reasonable and diligent effort to acquire property by negotiation" (N.D.C.C. § 32-15-06.1). The amount offered "shall not be less than the condemnor's approved appraisal or written statement and summary of just compensation for the property," and 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." In setting the amount, 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," other than a decrease from physical deterioration within the owner's reasonable control, and where appropriate it states the compensation for the part taken and the damages to the remainder separately (§ 32-15-06.1(3)-(4)). On request, the condemnor must give the owner the names of at least ten neighboring owners receiving offers (or all offerees if fewer than ten), and it must provide a map of the neighboring property affected; the owner may also examine the condemnor's project maps and obtain copies at cost (N.D.C.C. § 32-15-06.2).

Quick-take for state right of way. The constitution lets the state and its departments, agencies and political subdivisions take possession of right of way early. When one of them "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 must notify the owner immediately, and "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" (N.D. Const. art. I, § 16).

What can be taken. Section 32-15-03 lists "an easement, when taken for highway purposes or for any other use," unless the court, on a proper allegation of need, orders that a fee simple be taken. The section does not authorize the state or a political subdivision "to obtain any rights or interest in or to the oil, gas, or fluid minerals on or underlying" the land.

Chapter 32-15 sets no separate deadline to challenge the right to take. The North Dakota Rules of Civil Procedure govern condemnation cases except where the chapter provides otherwise (N.D.C.C. § 32-15-33), so, unless a statute specifies another time, a defendant "must serve an answer within 21 days after being served with the summons and complaint" (N.D.R.Civ.P. 12(a)). In a civil case, a notice of appeal generally must be filed "within 60 days from service of notice of entry of the judgment or order being appealed" (N.D.R.App.P. 4(a)).

How Just Compensation Is Calculated

Compensation is fixed as of the date of the taking. Under N.D.C.C. § 32-15-23, the right to compensation "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." Section 32-15-22 lists what the jury (or the court or a referee if a jury is waived) assesses: the value of the property taken, damages to the rest of a larger parcel from the severance and the construction, damages to property of which no part is taken, and, where the state or a public corporation is the condemnor, benefits. That covers a partial taking: the owner is compensated for the part taken and for damage to the remainder.

When the condemnor is the state or a public corporation, benefits are offset. The statute requires a separate determination of "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," and that benefit is deducted from the damages to the remainder (N.D.C.C. § 32-15-22(4)). Benefits reduce only those damages: if they equal the damages, the owner receives no compensation except the value of the portion taken.

The offset does not apply to private condemnors. "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" (N.D.C.C. § 32-15-01(2)). The constitution likewise provides that "no right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or ascertained and paid into court for the owner," unless the owner chooses annual payments as provided by law, "irrespective of any benefit from any improvement proposed by such corporation" (N.D. Const. art. I, § 16).

Chapter 32-15 contains no home bonus or percentage multiplier above value. A jury determines compensation unless a jury is waived (N.D. Const. art. I, § 16).

Payment, Possession and the Appeal Trap

Generally, "the plaintiff, within thirty days after the entry of final judgment, must pay the sum of money assessed" (N.D.C.C. § 32-15-25, which has an installment exception for school or public land on which no contract is outstanding). A public corporation is bound by the judgment and must pay the full amount into court "within six months after the entry of such a judgment" (§ 32-15-28). Three rules then govern possession and the owner's options:

• Possession after judgment. Once the condemnor has paid the full judgment to the owner or into court, the court, "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" (N.D.C.C. § 32-15-29).
• Taking the money gives up most defenses. The owner withdraws money paid into court by court order, on filing either a satisfaction of the judgment or a receipt and "an abandonment of all defenses to the action or proceeding except as to the amount of damages" (§ 32-15-29). Under N.D.C.C. § 32-15-29, "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." An owner who accepts that payment keeps only the fight over the amount.
• An appeal does not stop the project. After payment, "no motion for a new trial or appeal after such payment shall retard the contemplated improvement in any manner" (N.D.C.C. § 32-15-34).

The constitutional quick-take for state right of way works differently: there the owner may appeal to the court on the deposit of the offer, as described above.

Attorney Fees and Costs

Fee recovery in a North Dakota condemnation case is generally discretionary. Under N.D.C.C. § 32-15-32, "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." The same section warns: "If the defendant appeals and does not prevail, the costs on appeal may be taxed against the defendant." And when a new trial is granted at the owner's request and the owner does not obtain greater compensation, "the costs of such new trial shall be taxed against the defendant" (§ 32-15-32).

Fees are mandatory in two situations:

• A public corporation dismisses before judgment. "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" (N.D.C.C. § 32-15-28).
• The condemnor withdraws or has the case dismissed without the owner's agreement. Section 32-15-35 applies when the state, a municipality or political subdivision, a public utility, or another entity granted the power of eminent domain starts proceedings and then "withdraws or has such proceedings dismissed without agreement of the defendant." That party must pay the owner "all court costs, expenses, and fees, including reasonable attorney's fees as shall be determined by the court in which the proceedings were filed."

Inverse Condemnation

When a public entity takes or damages property without bringing a condemnation case, the owner may sue under chapter 32-15. In Lenertz v. City of Minot, 2019 ND 53, 923 N.W.2d 479, the North Dakota Supreme Court held that "N.D.C.C. § 32-15-32 precludes an award of costs against a plaintiff landowner in an inverse condemnation action brought under N.D.C.C. ch 32-15." Chapter 32-15 contains no limitation period, but the North Dakota Supreme Court applies the six-year contract statute of limitations, N.D.C.C. § 28-01-16(1), to inverse condemnation claims, and it declined to treat an actual physical taking differently (Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420). In Hager, the court also held that "when water is diverted onto property by construction or operation of a permanent structure, there is only one cause of action, successive suits may not be maintained, and the statute of limitations begins to run when harm first occurs," a rule it repeated in Lenertz. Our North Dakota statute of limitations guide covers the state's general filing deadlines.

Deadlines and Traps for Owners

Relocation Assistance

Chapter 54-01.1 provides relocation payments when a displacing agency moves people. The agency "shall make an additional payment not in excess of twenty-two thousand five hundred dollars to any displaced person who is displaced from a dwelling actually owned and occupied by the displaced person for not less than one hundred eighty days prior to the initiation of negotiations for the acquisition of the property" (N.D.C.C. § 54-01.1-04). For a displaced tenant, the rental payment is calculated to lease or rent a comparable replacement dwelling "for a period not to exceed forty-two months," but "not to exceed five thousand two hundred fifty dollars" (N.D.C.C. § 54-01.1-05). Federal and federally assisted projects follow the federal relocation regulations, which set their own limits, such as a replacement housing payment of up to $41,200 for an eligible 90-day homeowner-occupant (49 C.F.R. § 24.401(b)).

Unused Land and Repurchase

Chapter 32-15 contains no right for a former owner to buy back condemned land. Section 32-15-04(3) addresses unused right of way only as between condemnors: when a right of way has been taken and the taker "shall fail or neglect for five years to use the same for the purpose to which it had been appropriated," another party's attempt to appropriate that right of way "shall be considered a more necessary public use."

Separately, no transfer of property to the state or a political subdivision for highway purposes "shall be deemed to include any interest greater than an easement," and any greater estate so transferred "is hereby reconveyed to the owner from which such land was originally taken, or to the heirs, executors, administrators, or assigns of such owner" (N.D.C.C. § 32-15-03.2).

Recent Changes (2025)

• Survey notice (enacted). Senate Bill 2379, "relating to the surveying process during eminent domain proceedings," amended N.D.C.C. § 32-15-06, was signed by the Governor on April 8, 2025, and took effect August 1, 2025. The section now includes the 30-day wait after notice and the new certified-mail notice if the survey is not done within 90 days.
• Carbon dioxide pipeline status (failed). House Bill 1414, which would have revoked the common-carrier status of carbon dioxide pipelines and repealed the pore-space provision in § 38-22-10, failed in the House 29-55. It is not law.

North Dakota Easement and Eminent Domain Rules at a Glance

Related North Dakota Property Guides

• Easement laws by state
• Eminent domain laws by state
• North Dakota squatters rights and adverse possession
• North Dakota property records
• North Dakota statute of limitations

Disclaimer: This article provides general legal information about North Dakota easement and eminent domain law as of 2026-10-20. It is not legal advice. For advice about a specific property, easement dispute or condemnation case, contact a lawyer licensed in North Dakota.

Last updated: 2026-10-20.

Frequently Asked Questions

How long does it take to get a prescriptive easement in North Dakota?

Twenty years. The North Dakota Supreme Court has held that a use of land creates an easement by prescription if the use is adverse, continuous and uninterrupted, and for the 20-year period of prescription (Fischer v. Berger, 2006 ND 48). Permission from the owner defeats the claim.

Do you have to pay property taxes to get a prescriptive easement in North Dakota?

The elements the North Dakota Supreme Court stated in Fischer v. Berger (adverse, continuous and uninterrupted use for 20 years) do not include paying taxes. The 10-year track that requires paying taxes, N.D.C.C. § 47-06-03, is a rule for title to land held under color of title.

What can I do if my land is landlocked in North Dakota?

North Dakota recognizes a common-law easement by necessity where a conveyance of part of a tract leaves a part shut off from access to a road (Mougey Farms v. Kaspari, 1998). Separately, an owner of a tract without public-road access may petition the county commissioners or township supervisors to open a public road; the board decides whether the road is necessary and of sufficient benefit to the county or township as a whole (N.D.C.C. § 24-07-06), and its decision can be appealed to district court within 30 days after it is filed (§ 24-07-22). An easement by necessity must be proved by clear and convincing evidence (Griffeth v. Eid, 1998 ND 38). Outside cities and platted areas, section lines are also public roads open for travel 33 feet on each side (§ 24-07-03).

How do you stop someone from getting a prescriptive easement in North Dakota?

North Dakota has no statute for posting or recording a notice that blocks prescription. Under Fischer v. Berger, permission from the owner is fatal to a prescriptive claim, and the court treats an owner's acquiescence the same as permission.

How does an easement end in North Dakota?

N.D.C.C. § 47-05-12 lists four ways a servitude is extinguished: merger of the easement and the servient land in one owner, destruction of the servient land, an act by or with the assent of the easement owner that is incompatible with the easement, and, for a servitude acquired by enjoyment, disuse for the prescription period.

Can North Dakota take my property for a private developer?

The North Dakota Constitution says a public use does not include the public benefits of economic development, and private property may not be taken for the use of, or ownership by, a private individual or entity unless the property is necessary for conducting a common carrier or utility business (art. I, § 16; N.D.C.C. § 32-15-01).

Can a carbon dioxide pipeline use eminent domain in North Dakota?

Carbon dioxide pipelines appear on the list of purposes for which eminent domain may be exercised (N.D.C.C. § 32-15-02(10)), and a pipeline transporting carbon dioxide for the public for hire is a common carrier (§ 49-19-01). House Bill 1414 (2025), which would have revoked that common-carrier status, failed in the House 29-55.

Does the condemnor pay attorney fees in a North Dakota eminent domain case?

Generally the court may, in its discretion, award the owner reasonable costs and attorney fees (N.D.C.C. § 32-15-32). Fees are mandatory when a public corporation dismisses the action before judgment (§ 32-15-28) or when the party that started the proceedings withdraws them or has them dismissed without the owner's agreement (§ 32-15-35).

Does North Dakota pay extra compensation for taking a home?

Chapter 32-15 of the Century Code contains no home bonus or percentage multiplier. Compensation is the actual value at the date of the taking, plus damages to the part not taken (reduced by any benefits to that part when the state or a public corporation takes), set by a jury unless waived (N.D.C.C. §§ 32-15-22, 32-15-23; N.D. Const. art. I, § 16). Chapter 54-01.1 separately provides relocation payments to persons displaced by a displacing agency.