NDCC 32-15-22(3); King v. Stark County, 271 N.W. 771; Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 816 (1942) (On Petition For Rehearing). Whether private property has been taken for a public improvement is a question of law. Cady v. North Dakota Dep't of Transp., 472 N.W.2d 467, 469 (N.D. 1991). Substantial impairment of established access to and from an adjacent highway is a taking.
22 n. 4 (1964) (en banc); State Dep't of Hwys., Div. of Hwys. v. Davis, 626 P.2d 661, 665 (Colo.1981) (en banc); Palm Beach Cty. v. Tessler, 538 So.2d 846, 850 (Fla.1989) ; Dep't of Transp. v. Taylor, 264 Ga. 18, 440 S.E.2d 652, 655 (1994) ; Dep't of Pub. Works & Bldgs. v. Wilson & Co., 62 Ill.2d 131, 340 N.E.2d 12, 17 (1975) ; Teachers Ins. & Annuity Ass'n of Am. v. City of Wichita, 221 Kan. 325, 559 P.2d 347, 357 (1977) ; State ex rel. Dep't of Hwys. v. Linnecke, 86 Nev. 257, 468 P.2d 8, 10 (1970) ; Narciso v. State, 114 R.I. 53, 328 A.2d 107, 110 (1974) ; State v. Heal, 917 S.W.2d 6, 9 (Tex.1996) ; Stefan Auto Body v. State Hwy. Comm'n, 21 Wis.2d 363, 124 N.W.2d 319, 321 (1963). Contra State ex rel. Herman v. Schaffer, 105 Ariz. 478, 467 P.2d 66, 72 (1970) (en banc); Wilson v. Iowa State Hwy. Comm'n, 249 Iowa 994, 90 N.W.2d 161, 167–68 (1958) ; Hendrickson v. State, 267 Minn. 436, 127 N.W.2d 165, 172 (1964) ; Balog v. State, Dep't of Rds., 177 Neb. 826, 131 N.W.2d 402, 410 (1964) ; Cady v. N.D. Dep't of Transp., 472 N.W.2d 467, 470 (N.D.1991) ; State Hwy. Comm'n v. Peters, 416 P.2d 390, 395 (Wyo.1966). At oral argument, counsel for Schliem conceded that the question whether compensation is due under Article VI, § 13, of the South Dakota Constitution —e.g., whether a landowner's right of access has been substantially impaired—is a question of law.
[¶ 32] Our subsequent inverse condemnation jurisprudence interpreting the contours of the right to compensation under the constitutional provision has expressly recognized that the right to compensation is premised upon an implied contract, and this Court has thus applied the six-year contract statute of limitations in such cases. See Cady v. North Dakota Dep't of Transp., 472 N.W.2d 467, 471 (N.D. 1991); Eck v. City of Bismarck, 283 N.W.2d 193, 199 (N.D. 1979); Maragos v. City of Minot, 191 N.W.2d 570, 572 (N.D. 1971). We have recently reaffirmed in Aasmundstad v. State, 2008 ND 206, ¶ 15, 763 N.W.2d 748, that "the constitutional guarantee for inverse condemnation constitutes an implied contract to compensate for damages caused by a public entity."
It has been noted that although a loss of traffic, loss of business, and circuity of travel are not themselves compensable, they are factors to be considered in determining the reasonableness of the remaining access to and from an abutting roadway. Cady v. N.D. Dep't ofTransp., 472 N.W.2d 467 (N.D. 1991). However, in my view, the fact that a diversion in traffic flow is not compensable does not mean that closure of a road which materially deprives the abutting property owner of ingressor egress to and from his property is not a compensable taking.
After they were not named in Airport's eminent domain action against Kenmare Township, Gissels brought this inverse condemnation action against the defendants under Art. 1, § 16, N.D. Const., and Chapter 32-15, N.D.C.C. See, e.g., Boehm v. Backes, supra; Cady v. North Dakota Department of Transportation, 472 N.W.2d 467 (N.D. 1991); Arneson v. City of Fargo, 331 N.W.2d 30 (N.D. 1983); Guerard v. State, 220 N.W.2d 525 (N.D. 1974). The district court enjoined closure of the road until Gissels' rights were extinguished "as provided for by law."