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STATE OF MINNESOTA IN SUPREME COURT A07-1918; A07-1930 Court of Appeals Anderson, Paul H., J. Concurring in part, dissenting in part, Dietzen , J. Took no part, Stras, J.

Moorhead Economic Development Authority, Respondent, vs. Roger W. Anda, et al., Appellants, Kjos Investments, Respondent Below. ________________________ John T. Shockley, Ohnstad Twichell, P.C., West Fargo, North Dakota, for respondent. Roger J. Minch, Serkland Law Firm, Fargo, North Dakota, for appellant. Susan L. Naughton, League of Minnesota Cities, St. Paul, Minnesota, for amicus curiae League of Minnesota Cities. Bradley J. Gunn, Howard A. Roston, Malkerson Gilliland Martin LLP, Minneapolis, Minnesota, for amici curiae Howard A. Roston and Bradley J. Gunn. ________________________ Filed: September 2, 2010 Office of Appellate Courts

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SYLLABUS In a quick-take eminent domain proceeding, the date of valuation is the date when title and possession of the condemned property are transferred from the owner to the condemning authority. When the government condemns property that is contaminated at the time of the taking, the property should be valued "as remediated" rather than as contaminated or as clean. In eminent domain proceedings, estimations of or the actual cost of remediation are not admissible, and condemnation awards should not be reduced dollar-for-dollar by the cost of remediation. Evidence of contamination of the property being taken can be admitted and considered only to the extent necessary to determine the value of the property "as remediated"--namely, if there is any loss of value to the property due to the stigma of the contamination. When valuing condemned property, the fact finder should take into account conditions that exist at the time of the taking even if those conditions are discovered subsequent to the taking. In the context of environmental contamination conditions, the condition can be taken into account only to determine any impact stigma may have on the value of the property. Because nuisance and negligence are distinct theories, appellant's challenge to the negligence basis of liability was inadequate to challenge the nuisance basis of liability.

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Under the specific circumstances of this case, appellant did not waive review of the district court's findings and conclusions on liability by failing to challenge the nuisance basis of liability in his principal brief to the court of appeals. The district court did not err when it denied appellant's motion for judgment as a matter of law because the evidence was not practically conclusive against the jury's finding that appellant's negligence caused the contamination of property condemned by respondents, nor was the jury's finding contrary to law. An "unreasonable failure to avoid an injury or to mitigate damages" is one type of fault described and required to be considered under the Comparative Fault Act, Minn. Stat.

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