Rule 71.1 Condemnation of Property

Applicability of Rules. The condemnation of real property must be by eminent domain. The procedures for the condemnation of real property are set forth in 1 CMC §§ 9221–9228. Except as otherwise provided therein, these rules govern the procedure for the condemnation of real and personal property.

Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use.

Complaint.

(1) Caption. The complaint must contain a caption as provided in Rule 10(a), except that the plaintiff must name as defendants the property, designated generally by kind, quantity, and location, and at least one of the owners of some part of or interest in the property.

(2) Contents. The complaint must contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and as to each separate piece of property a designation of the defendants who have been joined as owners thereof or of some interest therein. Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plaintiff must add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interests to be acquired, and also those whose names have otherwise been learned. All others may be made defendants under the designation "Unknown Owners." Process must be served as provided in Rule 71.1(d) upon all defendants, whether named as defendants at the time of the commencement of the action or subsequently added; and a defendant may answer as provided in Rule 71.1(e). The court meanwhile may order such distribution of a deposit as the facts warrant.

(3) Filing. The filing of the application must be made in accordance with the Commonwealth Rules for Electronic Filing and Service.

Process.

(1) Notice; Delivery. Upon the filing of the complaint, the plaintiff must forthwith deliver to the clerk joint or several notices directed to the defendants named or designated in the complaint Additional notices directed to defendants subsequently added must be so delivered. The delivery of the notice and its service have the same effect as the delivery and service of the summons under Rule 4.

(2) Same; Form. Each notice must state the court, the title of the action, the name of the defendant to whom it is directed, that the action is to condemn property, a description of the defendant’s property sufficient for its identification, the interest to be taken, the authority for the taking, the uses for which the property is to be taken, that the defendant may serve upon the plaintiff’s attorney an answer within 20 days after service of the notice, and that the failure to serve an answer constitutes a consent to the taking and to the authority of the court to proceed to hear the action and to fix the compensation. The notice must conclude with the name of the plaintiff’s attorney and an address within the Commonwealth where the attorney may be served. The notice need contain a description of no other property than that to be taken from the defendants to whom it is directed.

(3) Service of Notice.

(A) Personal Service. Personal service of the notice (but without copies of the complaint) must be made in accordance with Rule 4 upon a defendant whose residence is known and who resides within the Commonwealth, the United States, or a territory or insular possession subject to the administrative or judicial jurisdiction of the United States.

(B) Service by Publication. Service by publication may be had in accordance with the provisions of 7 CMC § 1104(b). Unknown owners may be served by publication in a like manner by a notice addressed to "Unknown Owners."

(4) Return; Amendment. Proof of service of the notice must be made and amendment of the notice or proof of its service allowed in the manner provided for the return and amendment of the summons under Rule 4.

Appearance or Answer. If a defendant has no objection or defense to the taking of the defendant’s property, the defendant may serve a notice of appearance designating the property in which the defendant claims to be interested. Thereafter, the defendant must receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of the property, the defendant must serve an answer within 20 days after the service of notice upon the defendant. The answer must identify the property in which the defendant claims to have an interest, state the nature and extent of the interest claimed, and state all the defendant’s objections and defenses to the taking of the property. A defendant waives all defenses and objections not so presented, but at the trial of the issue of just compensation, whether or not the defendant has previously appeared or answered, the defendant may present evidence as to the amount of the compensation to be paid for the property, and the defendant may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection must be allowed.

Amendment of Pleadings. Without leave of court, the plaintiff may amend the complaint at any time before the trial on the issue of compensation and as many times as desired, but no amendment must be made which will result in a dismissal forbidden by Rule 71.1(i). The plaintiff need not serve a copy of an amendment, but must serve notice of the filing, as provided in Rule 5(b), upon any party affected thereby who has appeared and, in the manner provided in Rule 71.1(d), upon any party affected thereby who has not appeared. The plaintiff must furnish to the clerk, for the use of the defendants, at least one copy of each amendment, and must furnish additional copies on the request of the clerk or of a defendant. Within the time allowed by Rule 71.1(e), a defendant may serve an answer to the amended pleading, in the form and manner and with the same effect as there provided.

Substitution of Parties. If a defendant dies or becomes incompetent or transfers an interest after the defendant’s joinder, the court may order substitution of the proper party upon motion and notice of hearing. If the motion and notice of hearing are to be served upon a person not already a party, service must be made as provided in Rule 71.1(d)(3). [Reserved]

Dismissal of Action.

(1) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in or taken possession, the plaintiff may dismiss the action as to that property, without an order of the court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed.

(2) By Stipulation. Before the entry of any judgment vesting the plaintiff with title or a lesser interest in or possession of property, the action may be dismissed in whole or in part, without an order of the court, as to any property by filing a stipulation of dismissal by the plaintiff and the defendant affected thereby; and, if the parties so stipulate, the court may vacate any judgment that has been entered.

(3) By Order of the Court. At any time before compensation for a piece of property has been determined and paid and after motion and hearing, the court may dismiss the action as to that property, except that it must not dismiss the action as to any part of the property of which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, but must award just compensation for the possession, title or lesser interest so taken. The court, at any time, may drop a defendant unnecessarily or improperly joined.

(4) Effect. Except as otherwise provided in the notice, or stipulation of dismissal, or order of the court, any dismissal is without prejudice. Deposit and its Distribution. The plaintiff must deposit with the court any money required by law as a condition to the exercise of the power of eminent domain; and, although not so required, may make a deposit when permitted by statute. In such cases the court and attorneys must expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. If the compensation finally awarded to any defendant exceeds the amount which has been paid to that defendant on distribution of the deposit, the court must enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to the defendant, the court must enter judgment against that defendant and in favor of the plaintiff for the overpayment. [Reserved] [Reserved]