### No, 12209 INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

THE STATEOF MONTANA, on the Relation of the StateHighway Commission of the State of Montana, Relator,

THE DISTRICTCOURT OF THE THIRTEENTH JUDICIAL DISTRICTOF THE STATEOF MONTANA, INAND FOR THE 

### COUNTY OF STILLWATER,and 

### THE HONORABLE JACK 

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

ORIGINAL PROCEEDING: Counsel of Record: ForRelator: 

### William T,Kelly argued, Billings, Montana, Daniel J, Sullivan.argued,Helena,Montana. ForRespondents: Richard J,Carstensen argued,Billings, Montana,

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### Submitted: March 17, 1972 Decided: 

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### 2

### 7

## 19n

ClerkMr. 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 torequire the respondent district court tovacate 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 StateHighway Commission of the Stateof Montana, Plaintiff, vo. Gerald R. Fradet, Robert Lawrence Fradet, Evalyn L, Fradet, First National Park Bank of Livingston, and William 

### E. Buell, etal., Defendants

# . II Upon the filingof the application, counsel was heard

ex parte. Thereafter an order was issued requiring respondent court tobe and appear before this Court on a day certain and show cause why an appropriatewrit should not be granted. From the record it appears the condemnation action hereinbefore entitledwas institutedby the filing of the complaint in the district court on January 

### 19, 1968, and a lispendens 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 servedwith 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 takenby the Highway Commission to this Court and the decision of the district courtwas reversed on March 11, 1969. The district courtwas ordered to strike its findings of fact and conclusions and enter a preliminary order of condemnation, State Highway Commissionv, Fradet, 152Mont. 436, 451P,2d 826, It shouldbe 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 therewas an insufficiency of service of process, At the hearing on defendants' February 

### 7, 1968, motions, the district courtwent 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 theywere servedbefore the twenty day statutoryperiod. It further contended that there had been no special appearance by defendants for the purpose of contesting jurisdiction; that an

answerwas 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. Discussionwas had between court and counsel which concludedwith 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 agreedwith the Commission that service of complaint and summons on separate dates,yet prior

### to the statutory twenty daynotice forhearing,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 recitedhere in its entirety. However, certain of those proceedings shouldbe set forthas necessary background for the present application. 

### On May 25, 1971, the Highway Commissionmoved "the [district] Court for an order determining and fixing a definite datewith respect towhich compensation shallbe 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. FRADETwere (sic) ever validly sewedwith Summonsby 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 cannotnow fix the date for the determination of values for any Defendants other than the Defendants EVALYN L. FRADET and the Defendant FIRSTNATIONAL PARK BANK OF LIVINGSTON, for the reason that the Plaintiffhas not yet made a vali cervice of Summons in this condemnation action

# 70% a 

### y of the other Defendantsnamed in the Complaint as required by statute and not on any additional Defendants the Plaintiffmay propropose to add to this action and onwhomno Summonshas yet been issued.

## " The "additional Defendants" which the July 14 court order contemplatesbeing added to the present actionby plaintiff Highway Commission would include holders of outstanding bonds sold by the now defunct Columbus IrrigationDistrict 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 IrrigationDistrict is the lien of the bond

### assessment on the subject real property. As a result of the bond sale,Civil Case No. 2527was 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.1t 

### 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 thenmoved the district court in December 1971 to quash and strike the ~radets' acknowledgment of servicemotion and to establish a date inJanuary 1968 as the proper date forvaluation, The Commission made further efforts tohave



### a 1968 date established for valuation purposes by moving the district court f~r summary judgment and for the taking of judicial notice of certainrecords showing Fradets' voluntary submission to the court's jurisdiction. In response to the various motions filedby 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 filedhis 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 inthe action as of January 20, 1972, The order stated that such di-smissalwould 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 actionwas 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 tohis 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 towarrant the issuance of such Order." Respondent district court acknowledged that ithad stayed allproceedings 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 shallbe used for the purpose of assessing compensation for all property actually taken and for determining the basis of depreciation invalue of property not taken,but injuriouslyaffected? (3) 

### Should the Highway Commissionbe 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 otherwords, 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 extraordinarywrit of supervisorycontrol are well established inMontana law. Basic authority for its use is found inArticle VIII, Section 

### 2,of the Montana Constitution, which grants this Court "general supervisory control over all inferior courts*

# * *". Section 

### 3 of the sameArticle, though not specifically enumerating the supervisorywrit, grants the Court power to issue and hear "such other original and remedial writs asmay 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 remedialwrits 

## "*

# * *under conditionsmaking due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of 

### a trial court other thanby appeal is deemed necessary or proper." It shouldbe noted that Rule 1, M.R.App.Civ.P., does not enumerate any appealprocedure, 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 Stateex re1,Whiteside v. District Court, Mont

# . this Court stated one of the functions of the writ is to control the course of litigation inthe inferior courts when: "[They] by a mistake of law, orwillful disregard of it, are doing a gross injustice, and there isno appeal, or the remedy by appeal isinadequate,II 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 inStateex rel. Thelen v. District Court, 93 Mont. 149, 156, 17 P.2d 57, that application for the 

### writistimely ifmade: 

# "***within a reasonable time after the action sought tobe remedied was taken. II The facts and circumstances of each particular case aredeterminative of timeliness. 

### In Stateex rel, Regis 

### v. pistrict Court, 102Mont, 74, 77, 55 P.2d 1295, the Court said the writ may alsobe employed: 

### "*

# * *.to prevent'extended arid needless litigation.ll The facts here show that two orders of the district court dated July 14, 1971and January 28, 1972, areprimarily responsible for the Commission seeking thewrit of supervisory control. The orders essentiallyrequire the Commission toquiet titleagainst allpossible lienholders and touse a valuation date more than three years beyond the alleged proper date. Neither order is appealable other than following finaljudgment. Extended and needless litigationwould result from allowing the orders to stand, ifrelator iscorrect in

### itsassertion that each order isbased upon mistake of law or disregard of law by the district court. The facts and matters set forth inrelator Commission's application make itclear that this 

### is a proper case far issuanceof 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 torelator may well result, absent a hearing on its application. Since the major issue of thisproceeding 

### is the determination of a valuation date, and the district court's order of January 28, 1972, 

### is alleged tohave erroneously set such date, the application of relator dated February 14, 1972, was reasonably and timely filed. Respondents' motion todismiss these proceedings 

### is therefor denied, The important issue bringing respondents before this Court 

### is that of determining the proper date toassess 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 todefendant Robert L. Fradet, should be annulled, since itwould allow defendant to offer evidence atthe Commissioner's hearing of comparable sales several times higher inamount than that received for similarproperty sold in 1968. Montana statutesclearly specify the datewith respect towhich compensation ineminent domain cases shallbe assessed, Section 93-9913, R.C.M. 1947, states inpertinent part:

11

For the purpose of assessing compensation the right thereto shallbe deemed tohave accrued at-the date of the service of the summons, and its actualvalue as of that date shallbe the measure of compensation for allproperty tobe actually taken, and the basis of depreciation in value of property not actually taken, but injuriously affected. 

# **

# *" (Emphasis added) This Court in StateHighway Commission v. Jacobs, 150 Mont. 322, 326, 435 P.2d 274, stated: "The compensation due to the defendants

# *** isdetermined by the actual value of the land at the date on the service of the summons

# ** *.I1Section 93-9909, R,C.M. 1947, sets forth the statutory requirement for service of summons incondemnation 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 tobe taken, a statement of the public use forwhich it is sought, and a notice tothe defendants to fileand serveupon the plaintiff an answer within fifteen (15) days from date of service of summons and to appear before the court orjudge, ata time and place therein specified, and show cause why the property described should not be condemned as prayed for inthe complaint. Such summons must, inother particulars, be in form of a summons ina civil action, and must be served inlikemanner upon each defendant named therein, atleast twenty (20) days previous to the time designated in such notice for thehearing, A copy of the complaint must be served, with the summons, upon each defendant named. But the failure tomake achservice upon a defendant does not affect the right toproceed against any or allother of the defendants, upon whom service of summons had been made. 11 Defendants Fradet do not now contend that the district court lacksjurisdiction over any of them, They contend the question of valuation date arisesbecause service of process was not valid; was not made inaccordance 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 citeas authority that part of section 93- 9909 which states:

II

A copy of the complaint must be served with the summons, upon each defendant named,tf Having given the "same day" interpretation tothe foregoing sentence of the service statute, defendants then citeState 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, 109Mont. 552, 98 P.2d 324, for the proposition that where the right of eminent domain is sought tobe exercised, there must always be rigorous compliance with provisions of the law.The record shows that serviceupon 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, inconformity 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 fixa date for determination of value was based upon a finding inconformity with the Fradets' allegations set forth above that service of summons was invalid. That order is in error. First, the district court determined initshearing on Mruary26, 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. StateHighway Commission v. Fradet, 152Mont. 436, 451 P.2d 826. It should be noted that the districtjudge presiding atthe February 26, 1968, hearing died, and a subsequent judge rendered the orders atissue. 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 inthe service of summons. It remains forus to determine ifthe service of summons was otherwise defective ina 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 arewell aware of the rule that strict compliance with statutoryrequirements must be had in eminent domain proceedings. On the otherhand, this Court 

### iscognizant of the major objective of the eminent domain statutes ---to give the landowner fairnotice. Aswe stated inHousing Authority v. Bjork, 109Mont. 552, 556, 98 P.2d 324: "The due process clause, inaddition to 

### its requirement of public use and just compensation, protects the land owner from the adoption of any form of procedure ineminent domain cases which depriveshim of a reasonable opportunity tobe heard and so topresent such ob'ections and claims ashe isentitled tomake,?I Section 93-9909, R.C.M, 1947, read as a whole, 

### is clearly intended to give the landowner-condemnee notice of what isproposed tobe taken and why; 

### its further objective 

### is to give the landowner twenty days' notice toprepare for the hearing. We interpret the section's requirement th,ata copy of the complaint "must be served,-withthe summons1' tobe effectively met, so long asboth

are served atleasttwenty days prior to the timedesignated for hearing. Such service

### willgive fairnotice of the hearing tothe condemnee regardless of whether the summons and complaint are served on separate dates. Here, timely servicewas accomplished by the Commission, and inour opinion itwas a valid and sufficient service for purposes of settinga valuation date, as

### wellas for purposes of jurisdiction. Thus, inaccordance 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. Hisdeed to the property was dated and recorded August 30, 1967. Robert L. Fradet, though reacquiring ownership of the property subsequent to the timeof taking, has

no standing to "acknowledge service'' of the summons inOctober 1971. Gerald R. Fradet on January 31, 1968, was the proper party defendant toreceive service of summons, This Court in State Highway Commission v. Robertson & Blossom, 151Mont. 205, 441 P.2d 181, held that the statemay rely on record title. Nichols on EminentDomain, 3rd Ed., Vol. 2, 

### 5 5.1[4], states: 

### "*

# ** it is the owner of the property atthe time of the takingwho 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 tobe decided, it isapparent that the district court's order of July 14, 1971, requires the Commission tobring a -quiettitleaction against additional defendants, being allthose 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 titleaction isnot 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 arenamed 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 iswell stated inNichols on Eminent Donain,3rd Ed,,

"Although there isauthority to the contrary, a lien isnot a proprietary interest or estate in land, but 

### is a remedy against it, and, as the legislaturemay constitutionally impair a remedy without compensation, when land subject to a lien is taken by eminent domain, the holder of the lien isnot entitled tobe made a party, or torecover 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 titleas compensation for the land in advance of other creditors,It Thus, the lienholders are relegated to claims against the ultimate award.Furthermore, inMontana it is established that a mortgage does not create an estate inreal property but 

### ismere security forpayment of a debt or discharge of an obligation---it creatEs



### a lienupon the property. Cornish v. Woolverton, 32 Mont. 456, 81P. 4; Barth v. Ely, 85 Mont. 310, 278 P. 1602. Therefore, Nichols on Eminent Domain, 3rd Ed., Vol. 2, 

### 5 5.741, states that injurisdictions such asMontana: 

# "*** inthe absence of express statutory requirement, the mortgagee need not be made a party, orbe notified of the proceedings, and he 

### isnot entitled to compensation from the condemnor. 1l It has alsobeen held thatjudgment creditors have no estateor proprietary interest inland of thejudgment debtor, and judgment creditorsneed not be joined asparties ineminent 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 isunnecessary for the Commission tobring

a quiet title action orname additional defendants. As a practical matter, it isunlikely that lien claimants exist. A lispendens

was filed inJanuary 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 Writof Supervisory Control directed to the district court of the thirteenthjudicial district, inand for the county of Stillwater, ordering: (1) That the order of the district court fixing October 24, 1971, as the valuation date as todefendant 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 allproperty actually taken and for determining thebasis ofdepreciation invalue of property not actually taken but injuriously affected; and 

### (3) That the district court's order of 

### July 14, 1971, ruling that itcannot now fixthe date for determination of values and requiring plaintiff, ineffect, toname or interplead any additional defendants, be vacated and set aside, 

### IT IS SO 

### ORDERED,

Associate&stices.