The opinion
KAPSNER, Justice,
concurring in the result.
[¶ 23] I concur in the result reached by the majority opinion. I am troubled with the Court’s conclusion in ¶ 15 that a policy deciding when to make replacements of unlined cast iron pipes does not constitute a deliberate act. Such a policy was clearly made after considerable deliberation and was then acted upon. Damages caused when such a policy fails could subject a city to liability under a theory of inverse condemnation. See, e.g., California State Auto. Ass’n v. City of Palo Alto, 138 Cal.App.4th 474 , 41 Cal.Rptr.3d 503, 509 (2006) (discussing Pacific Bell v. City of San Diego, 81 Cal.App.4th 596 , 96 Cal.Rptr.2d 897 (2000) and concluding damage caused from sewage backup was recoverable under inverse condemnation theory despite deliberately conceived policy of sewer maintenance).
[¶ 24] Instead of concluding a maintenance policy is not a deliberate act, I would follow our past cases. As the majority opinion correctly points out, our cases require a showing that a municipality’s actions, in maintaining a public utility or improvement, reach a level of nuisance before a municipality is liable for damage to property under inverse condemnation. See majority opinion supra, at ¶ 11 (citing Jamestown Plumbing & Heating Co. v. City of Jamestown, 164 N.W.2d 355 (N.D.1968); Kinnischtzke v. City of Glen Ullin, 79 N.D. 495 , 57 N.W.2d 588 (1953)). Although nuisance may be a separate cause of action, a nuisance will also support a claim of inverse condemnation.
[¶ 25] The City of Fargo’s actions did not rise to the level of a nuisance. This *52 claim was based upon a single instance of flooding. Therefore, I concur with the result but not the legal analysis of the majority opinion.
[¶ 26] Carol Ronning Kapsner