No, 12209 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, on the Relation of 

the State Highway Commission of the State 

of Montana, 

Rela tor, 

THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND FOR 

THE COUNTY OF STILLWATER, and THE HONORABLE 

JACK D. SHANS'I'ROM, Presiding District Judge, 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator : 

William T, Kelly argued, Billings, Montana, 

Daniel J, Sullivan.argued, Helena, Montana. 

For Respondents: 

Richard J, Carstensen argued, Billings, Montana, 

- -- 

Submitted: March 17, 1972 

Decided : d~c b 2 7 19n 

Clerk 
Mr. Chief Justice James T. Harrison delivered the Opinion of the 

Court. 

This is an original proceeding. Relator, Montana State 

Highway Commission, seeks an appropriate writ to require the 

respondent district court to vacate and annul that portion of 

its order of January 28, 1972, fixing October 24, 1971, as the 

date for determining the actual value of the condemned property 

for the measure of compensation of the interests therein of 

defendant Robert Lawrence Fradet. 

The condemnation action involved is cause No, 4033, 

pending in the district court of Stillwater County, entitled: 

"The State of Montana, acting by and through the 

State Highway Commission of the State of Montana, 

Plaintiff, vo. Gerald R. Fradet, Robert Lawrence 

Fradet, Evalyn L, Fradet, First National Park Bank 

of Livingston, and William E. Buell, et al., Defendant s . I I 

Upon the filing of the application, counsel was heard 

ex parte. Thereafter an order was issued requiring respondent 

court to be and appear before this Court on a day certain and 

show cause why an appropriate writ should not be granted. 

From the record it appears the condemnation action hereinbefore entitled was instituted by the filing of the complaint 

in the district court on January 19, 1968, and a lis pendens was 

filed the same day with the clerk and recorder of Stillwater 

County. Copy of the complaint was served on Gerald R. Fradet, 

at that time the admitted owner of the property, on January 25, 

1968 and summons was served on him January 31, 1968. On the same 

dates, Robert Lawrence Fradet, the father of Gerald R. Fradet, 

was also served with a copy of the complaint and summons, Evalyn 

Fradet, mother of Gerald R. Fradet, was served with the complaint 

and summons on January 23, 1968. 

On February 7, 1968, the three Fradets filed a motion to 

dismiss, motion to strike, motion for a more definite statement, 
and a statement of defendants' claims, These motions were heard 

by the district court on February 26, 1968, and on March 8, 1968, 

the court entered its findings of fact and concusions of law in 

favor of the Fradets, because of the failure of the Highway Commission to negotiate or offer to purchase a parcel of the land sought 

to be condemned, 

An appeal was taken by the Highway Commission to this 

Court and the decision of the district court was reversed on 

March 11, 1969. The district court was ordered to strike its 

findings of fact and conclusions and enter a preliminary order 

of condemnation, State Highway Commission v, Fradet, 152 Mont. 

436, 451 P,2d 826, 

It should be noted here that in their motion to dismiss, 

Fradets alleged that because of failure to serve a copy of the 

complaint with copy of the summons upon two of them, the court 

lacked jurisdiction and there was an insufficiency of service of 

process, At the hearing on defendants' February 7, 1968, motions, 

the district court went into the matter of this service, The 

Highway Commission contended that it should make no difference 

if the summons and complaint were served separately, as long as 

they were served before the twenty day statutory period. It 

further contended that there had been no special appearance by 

defendants for the purpose of contesting jurisdiction; that an 

answer was filed at the same time and that would constitute a 

waiver of any special appearance since the new civil rules do not 

apply to eminent domain actions. Discussion was had between 

court and counsel which concluded with this comment by the judge: 

"The Court, I think, must hold that this does 

not constitute such a fatal defect as to deprive 

this Court of jurisdiction of the cause," 

Thus, the district court agreed with the Commission that 

service of complaint and summons on separate dates, yet prior 
to the statutory twenty day notice for hearing, was not a violation of the service requirements of section 93-9909, R.C.M, 1947. 

The procedural history of this action subsequent to our 

March 11, 1969 opinion reversing the district court is complex 

and need not be recited here in its entirety. However, certain of 

those proceedings should be set forth as necessary background for 

the present application. 

On May 25, 1971, the Highway Commission moved "the [district] 

Court for an order determining and fixing a definite date with respect to which compensation shall be assessed prior to setting 

a date for a Commission's Hearing * * *." 

By order of July 14, 1971, the district court found: 

"5. Neither Defendant GERALD R. FRADET or ROBERT 

L. FRADET were (sic) ever validly sewed with 

Summons by delivery of a copy of both the Summons 

and Complaint on them at the same time as is required by Section 93-9909, R.@,M, 1947." 

It then ordered: 

"* * *that it cannot now fix the date for the 

determination of values for any Defendants other 

than the Defendants EVALYN L. FRADET and the 

Defendant FIRST NATIONAL PARK BANK OF LIVINGSTON, 

for the reason that the Plaintiff has not yet 

made a vali cervice of Summons in this condemnation action 70% a y of the other Defendants named in 

the Complaint as required by statute and not on 

any additional Defendants the Plaintiff may propropose to add to this action and on whom no 

Summons has yet been issued. " 

The "additional Defendants" which the July 14 court order 

contemplates being added to the present action by plaintiff 

Highway Commission would include holders of outstanding bonds 

sold by the now defunct Columbus Irrigation District in 1919 and 

1920. The tract which is the subject of this condemnation action 

was included within the boundaries of the Columbus Irrigation 

District at the time the bonds were sold. Only one such bond 

was ever paid and there now remain outstanding bonds in the total 

principal amount of $10Q,Q00. Among the alleged remaining assets 

of the Columbus Irrigation District is the lien of the bond 
assessment on the subject real property. 

As a result of the bond sale, Civil Case No. 2527 was 

commenced on May 31, 1940, entitled: 

"The National Park Bank of Livingston, a corporation, 

and William E, Buell, Plaintiffs, vs. (among other 

defendants) The State of Montana, Stillwater County, 

and Columbus Irrigation District, a corporation, 

Daniel Nice, and a11 other persons, as defendants. 1 t 

This action is still pending in the district court of the 

thirteenth judicial district, Stillwater County. Due to this 

action and to the alleged possible lien rights of all persons 

purchasing the outstanding irrigation district bonds, it is 

argued that a great number of defendants or their executors and 

administrators, whose identities are unknown, may have a lien 

of assessment, a claim, or an encumbrance of record against the 

real property involved in this condemnation action. 

The Commission alleges the district court order of July 

14, 1971, places an additional duty on the state to quiet title 

against all such persons who might claim a lien on the property 

subject to this condemnation action. 

The July 14 order also precluded the setting of a date 

for determination of values due to the purported invalid service 

of summons upon Robert L. Fradet and others. By motion dated 

and served October 28, 1971, defendant Robert L. Fradet attempted 

to "acknowledge service of Summons in this action J; * * for the 

purposes of establishing the date upon which the value of his 

interest in such property must be fixed * * *." The motion 

specified October 28, 1971, as the "acknowledged" date of service. 

It also renewed the Fradets' motion that the district court appoint 

condemnation commissioners and fix a date for the condemnation 

hearing, 

The Commission then moved the district court in December 

1971 to quash and strike the ~radets' acknowledgment of service 
motion and to establish a date in January 1968 as the proper 

date for valuation, The Commission made further efforts to have 

a 1968 date established for valuation purposes by moving the 

district court f~r summary judgment and for the taking of judicial 

notice of certain records showing Fradets' voluntary submission 

to the court's jurisdiction. 

In response to the various motions filed by the Commission 

and the Fradets, the court ruled on January 28, 1972, that the 

plaintiff Commission nominate a condemnation commissioner and 

further ruled that because defendant Robert L. Fradet had then 

filed his acknowledgment of service, as to that defendant the 

date of determining the actual value of the property would be 

October 24, 1971. 

The record also shows that on January 28, 1972, the district 

court entered a separate order dismissing Gerald R. Fradet as 

a defendant in the action as of January 20, 1972, The order 

stated that such di-smissal would not have any affect on any 

claimed service of process made on Gerald R. Fradet prior to 

this date. We note here that at the time this action was filed 

Gerald R. Fradet was the record owner of the real property which 

is the subject of this condemnation action. Gerald R. Fradet 

remained fee owner of the tract until May 1, 1970, when he executed 

a quitclaim deed conveying the subject tract back to his father, 

defendant Robert Lawrence Fradet. 

In answering this Court's order of February 18, 1972, 

requiring respondents to appear and show cause, respondents moved 

on March 14, 1972, to dismiss the order because the application 

11 does not state facts sufficient to warrant the issuance of such 

Order." Respondent district court acknowledged that it had 

stayed all proceedings in Civil Cause No. 4033, Stillwater County, 

pending further order of this Court. 
The issues to be determined here are basically three: 

(1) Is this a proper case for the use of the writ of 

supervisory control, as was issued by order of this Court dated 

February 18, 1972? 

(2) What date shall be used for the purpose of assessing 

compensation for all property actually taken and for determining 

the basis of depreciation in value of property not taken, but 

injuriously affected? 

(3) Should the Highway Commission be required in an 

eminent domain action to bring a quiet title action against all 

parties who have possible liens or encumbrances upon the land 

subject to condemnation; in other words, should the Commission 

be required to name or interplead any additional parties as 

defendants in this action? 

Examining the first issue, we find that the criteria for 

the use of the extraordinary writ of supervisory control are 

well established in Montana law. Basic authority for its use 

is found in Article VIII, Section 2, of the Montana Constitution, 

which grants this Court "general supervisory control over all 

inferior courts* * *". Section 3 of the same Article, though 

not specifically enumerating the supervisory writ, grants the 

Court power to issue and hear "such other original and remedial 

writs as may be necessary or proper to the complete exercise 

of its appellate jurisdiction. 11 

Rule 17(a), M.R,App,Civ.P., provides for the use of original 

and remedial writs "* * *under conditions making due consideration 

in the trial courts and due appeal to this court an inadequate 

remedy, or when supervision of a trial court other than by appeal 

is deemed necessary or proper." It should be noted that Rule 1, 

M.R.App.Civ.P., does not enumerate any appeal procedure, other 

than appeal from final judgment which could be utilized by relator 

Highway Commission under the circumstances of this case. 
Montana case law further defines the criteria for the 

use of the writ. In State ex re1,Whiteside v. District Court, 

Mont . this Court stated one of the 

functions of the writ is to control the course of litigation 

in the inferior courts when: 

"[They] by a mistake of law, or willful disregard of it, are doing a gross injustice, 

and there is no appeal, or the remedy by appeal 

is inadequate, I I 

To the same effect, see State ex rel. City of Helena v. Helena 

W.W.Co,, 43 Mont, 169, 115 P. 200. 

This Court further stated in State ex rel. Thelen v. 

District Court, 93 Mont. 149, 156, 17 P.2d 57, that application 

for the writ is timely if made: 

"* * * within a reasonable time after the 

action sought to be remedied was taken. II 

The facts and circumstances of each particular case are determinative of timeliness. 

In State ex rel, Regis v. pistrict Court, 102 Mont, 74, 

77, 55 P.2d 1295, the Court said the writ may also be employed: 

"* * *.to prevent 'extended arid needless litigation. ll 

The facts here show that two orders of the district court 

dated July 14, 1971 and January 28, 1972, are primarily responsible 

for the Commission seeking the writ of supervisory control. The 

orders essentially require the Commission to quiet title against 

all possible lienholders and to use a valuation date more than 

three years beyond the alleged proper date. Neither order is 

appealable other than following final judgment. Extended and 

needless litigation would result from allowing the orders to stand, 

if relator is correct in its assertion that each order is based 

upon mistake of law or disregard of law by the district court. 

The facts and matters set forth in relator Commission's 

application make it clear that this is a proper case far issuance 
of the writ of supervisory control dated February 18, 1972, 

requiring the district court to show cause why a further appropriate writ should not be granted. We find that gross injustice 

to relator may well result, absent a hearing on its application. 

Since the major issue of this proceeding is the determination 

of a valuation date, and the district court's order of January 

28, 1972, is alleged to have erroneously set such date, the 

application of relator dated February 14, 1972, was reasonably 

and timely filed. Respondents' motion to dismiss these proceedings 

is therefor denied, 

The important issue bringing respondents before this 

Court is that of determining the proper date to assess compensation for property taken and depreciated. The Commission contends 

the district court's order of January 28, 1972, setting a valuation date of October 24; 1971, as to defendant Robert L. Fradet, 

should be annulled, since it would allow defendant to offer evidence at the Commissioner's hearing of comparable sales several 

times higher in amount than that received for similar property 

sold in 1968. 

Montana statutes clearly specify the date with respect 

to which compensation in eminent domain cases shall be assessed, 

Section 93-9913, R.C.M. 1947, states in pertinent part: 

11 For the purpose of assessing compensation the 

right thereto shall be deemed to have accrued 

at-the date of the service of the summons, and 

its actual value as of that date shall be the 

measure of compensation for all property to be 

actually taken, and the basis of depreciation in 

value of property not actually taken, but injuriously affected. * * *" (Emphasis added) 

This Court in State Highway Commission v. Jacobs, 150 

Mont. 322, 326, 435 P.2d 274, stated: 

"The compensation due to the defendants * * * 

is determined by the actual value of the land 

at the date on the service of the summons * * *.I1 
Section 93-9909, R,C.M. 1947, sets forth the statutory 

requirement for service of summons in condemnation proceedings. 

It provides: 

11 The clerk must issue a summons, which must 

contain the names of the parties, a description 

of the lands and other property proposed to be 

taken, a statement of the public use for which 

it is sought, and a notice to the defendants to 

file and serve upon the plaintiff an answer within 

fifteen (15) days from date of service of summons 

and to appear before the court or judge, at a 

time and place therein specified, and show cause 

why the property described should not be condemned 

as prayed for in the complaint. Such summons must, 

in other particulars, be in form of a summons in a 

civil action, and must be served in like manner upon 

each defendant named therein, at least twenty (20) 

days previous to the time designated in such notice 

for the hearing, A copy of the complaint must be 

served, with the summons, upon each defendant named. 

But the failure to make ach service upon a defendant does not affect the right to proceed against 

any or all other of the defendants, upon whom service of summons had been made. 11 

Defendants Fradet do not now contend that the district 

court lacks jurisdiction over any of them, They contend the 

question of valuation date arises because service of process was 

not valid; was not made in accordance with statute as to defendants Gerald R. Fradet and Robert L. Fradet. They allege that 

section 93-9909, R,C.M. 1947, requires service of summons and 

complaint on the same day. 

Defendants cite as authority that part of section 93- 

9909 which states: 

I I A copy of the complaint must be served with 

the summons, upon each defendant named, tf 

Having given the "same day" interpretation to the foregoing 

sentence of the service statute, defendants then cite State ex 

rel. McMaster v. District Court, 80 Mont, 228, 260 P. 134; State 

v. Aitchison, 96 Mont. 335, 30 P,2d 805; and Housing Authority 

v. Bjork, 109 Mont. 552, 98 P.2d 324, for the proposition that 

where the right of eminent domain is sought to be exercised, there 

must always be rigorous compliance with provisions of the law. 
The record shows that service upon both Gerald R. Fradet 

and his father, Robert L. Fradet, was made on different dates. 

In each instance, the complaint was served on January 25, 1968, 

and summons on January 31, 1968. The hearing, however, was set 

for February 20, 1968, in conformity with the twenty day notice 

requirement of Section 93-9909, R.C.M. 1947. 

The district court's order of July 14, 1971, refusing to 

fix a date for determination of value was based upon a finding 

in conformity with the Fradets' allegations set forth above 

that service of summons was invalid. That order is in error. 

First, the district court determined in its hearing on 

Mruary 26, 1968, that the fact of serving summons and complaint 

on separate dates did not deprive the court of jurisdiction over 

the cause. This Court did not disturb that portion of the 

district court's decision on appeal. State Highway Commission v. 

Fradet, 152 Mont. 436, 451 P.2d 826. It should be noted that 

the district judge presiding at the February 26, 1968, hearing 

died, and a subsequent judge rendered the orders at issue. 

The service made upon the Fradets being sufficient to 

give the court below jurisdiction, we need not consider whether 

the ~radets' February 7, 1968 answer and February 26, 1968, 

appearance constituted a voluntary general appearance waiving 

jurisdictional defects in the service of summons. It remains 

for us to determine if the service of summons was otherwise defective in a manner precluding the setting of January 31, 1968, 

as the valuation date. We conclude that service of the summons 

was not defective. 

The wording of section 93-9909, R.C.M, 1947, relied 

upon by the Fradets, does not mandate service of summons and complaint upon the same date. We are well aware of the rule that 

strict compliance with statutory requirements must be had in 

eminent domain proceedings. On the other hand, this Court is 
cognizant of the major objective of the eminent domain statutes 

---to give the landowner fair notice. As we stated in Housing 

Authority v. Bjork, 109 Mont. 552, 556, 98 P.2d 324: 

"The due process clause, in addition to its 

requirement of public use and just compensation, protects the land owner from the adoption 

of any form of procedure in eminent domain cases 

which deprives him of a reasonable opportunity 

to be heard and so to present such ob'ections 

and claims as he is entitled to make, ?I 

Section 93-9909, R.C.M, 1947, read as a whole, is clearly 

intended to give the landowner-condemnee notice of what is proposed 

to be taken and why; its further objective is to give the landowner twenty days' notice to prepare for the hearing. We interpret 

the section's requirement th,at a copy of the complaint "must be 

served, -with the summons1' to be effectively met, so long as both 

are served at least twenty days prior to the time designated for 

hearing. Such service will give fair notice of the hearing to the 

condemnee regardless of whether the summons and complaint are 

served on separate dates. Here, timely service was accomplished 

by the Commission, and in our opinion itwas a valid and sufficient 

service for purposes of setting a valuation date, as well as for 

purposes of jurisdiction. 

Thus, in accordance with section 93-9913, R.C.M, 1947, 

January 31, 1968, the date Gerald R. Fradet received service of 

summons, is the proper valuation date. Gerald R. Fradet was then 

the owner of the property. His deed to the property was dated 

and recorded August 30, 1967. Robert L. Fradet, though reacquiring 

ownership of the property subsequent to the time of taking, has 

no standing to "acknowledge service'' of the summons in October 1971. 

Gerald R. Fradet on January 31, 1968, was the proper party defendant to receive service of summons, This Court in State 

Highway Commission v. Robertson & Blossom, 151 Mont. 205, 441 P.2d 181, 

held that the state may rely on record title. Nichols on Eminent 
Domain, 3rd Ed., Vol. 2, 5 5.1[4], states: 

"* * * it is the owner of the property at the 

time of the taking who is entitled to compensation. " 

The district court's dismissal of Gerald R. Fradet from the 

action effective June 20, 1972, has no effect on the validity 

of service of summons on him, 

As to the third issue to be decided, it is apparent that 

the district court's order of July 14, 1971, requires the Commission to bring a -quiet title action against additional defendants, 

being all those who may claim some lien or encumbrance upon the 

subject property. The possible existence of lienholders was 

raised by the two earlier actions, noted above, involving bonds 

of the now defunct Columbus Irrigation District. 

Respondents and the Commission believe that the prevailing 

view is that a quiet title action is not required and no additional 

defendants need be named. Respondents note that the irrigation 

district cases have been dormant for years; that none of the 

Fradets are named as parties 5n either of the earlier actions; 

and that no one has filed any claim or lien of any kind against 

any of the Fradets. 

The law is well stated in Nichols on Eminent Donain,3rd Ed,, 

"Although there is authority to the contrary, a lien 

is not a proprietary interest or estate in land, but 

is a remedy against it, and, as the legislature may 

constitutionally impair a remedy without compensation, when land subject to a lien is taken by eminent 

domain, the holder of the lien is not entitled to be 

made a party, or to recover compensation from the 

condemnor, It is, however, well settled that the award 

stands in place of the land, and is subject to the 

same liens, and that consequently a lienor may proceed 

against the award upon general equitable principles, 

and without the aid of any statute. He may have his 

lien satisfied out of the fund awarded to the owners 

of the legal title as compensation for the land in 

advance of other creditors, It 

Thus, the lienholders are relegated to claims against the ultimate 

award. 
Furthermore, in Montana it is established that a mortgage 

does not create an estate in real property but is mere security 

for payment of a debt or discharge of an obligation---it crea tEs 

a lien upon the property. Cornish v. Woolverton, 32 Mont. 456, 

81 P. 4; Barth v. Ely, 85 Mont. 310, 278 P. 1602. Therefore, 

Nichols on Eminent Domain, 3rd Ed., Vol. 2, 5 5.741, states 

that in jurisdictions such as Montana: 

"* * * in the absence of express statutory 

requirement, the mortgagee need not be made 

a party, or be notified of the proceedings, and he is not entitled to compensation from the 

condemnor. 1 l 

It has also been held that judgment creditors have no 

estate or proprietary interest in land of the judgment debtor, 

and judgment creditors need not be joined as parties in eminent 

domain actions for the purpose of cutting off the lien of their 

judgments. Nichols on Eminent Domain, 3rd Ed., Vol. 2, 5 5.742. 

We hold that it is unnecessary for the Commission to bring 

a quiet title action or name additional defendants. As a practical 

matter, it is unlikely that lien claimants exist. A lis pendens 

was filed in January 1968, and no claimants have appeared, Any 

parties not now named who may later claim a lien or encumbrance 

upon the land may satisfy such claim from the award made to the 

Fradets . 

Accordingly, we hereby issue a Writ of Supervisory Control 

directed to the district court of the thirteenth judicial district, 

in and for the county of Stillwater, ordering: 

(1) That the order of the district court fixing October 

24, 1971, as the valuation date as to defendant Robert L. Fradet 

be vacated and set aside; 

(2) That the date of January 31, 1968, be entered as 

the proper date for the purpose of assessing compensation for 

all property actually taken and for determining the basis of 
depreciation in value of property not actually taken but 

injuriously affected; and 

(3) That the district court's order of July 14, 1971, 

ruling that it cannot now fix the date for determination of 

values and requiring plaintiff, in effect, to name or interplead 

any additional defendants, be vacated and set aside, 

IT IS SO ORDERED, 

Associate &stices.