No. 12823 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

SILVER BOW COUNTY, a Body Politic 

and Corporate and Political Subdivision 

of the State of Montana, 

Plaintiff and Respondent, 

CARL HAFER, JR. a /k/a CARL HAFER, 

and PATRICIA ANN HAFER, 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record : 

For Appellants : 

Holland and Haxby, Butte, Montana 

Robert J. Holland argued, Butte, Montana 

For Respondent : 

Gary Winston, County Attorney, argued, Butte, 

Montana 

Maurice Hennessey, Deputy County Attorney, argued, 

Butte, Montana 

Submitted : January 21, 1975 

Decided : MAR - 4 1975 

Filed : MAR - 4 1975 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is an appeal from a preliminary order of condemnation 

entered in the district court, Silver Bow County, wherein the 

County exercised its power of eminent domain to condemn 3.64 acres of 

defendants ' land. 

The facts of the case are: On October 15, 1970, silver Bow 

County initiated an action to condemn 3.64 acres of defendants ' 

land for the purpose of improving the Bert Mooney Silver Bow County 

Airport. ~efendants' land was needed to establish a "clear zone" 

at the end of the runway to comply with the present regulations of 

the Federal Aviation Administration. 

Defendant landowners, Carl and Patricia Hafer, filed a responsive pleading admitting the County had the power to condemn land 

for airport purposes but denying that the County had demonstrated 

a necessity for the taking, and further denying that the County 

could establish a necessity for taking their property in fee simple 

absolute. 

On May 9, 1974, almost four years subseqmnt to the filing of 

the condemnation complaint, a necessity hearing was held and the 

district court heard the testimony of two witnesses in behalf of the 

County--Ed DeGeorge and Charles Engdahl. 

Ed DeGeorge, a county commissioner from Silver Bow County, 

testified the County had the power of eminent domain to condemn 

defendants' land for airport purposes. 

Charles Engdahl, a civil engineer employed by the Federal Aviation Administration, testified the defendants' land was located 

I l within the clear zone" approach to the a.irport as defined in the 

regulations of the Federal Aviation Administration. Further, that 

it was necessary to acquire this property pursuant to a grant agreement entered into between the Federal Aviation Administration and 

the Silver Bow County Airport. The alleged grant agreement was not 

introduced into evidence. On cross-examination, however, this transpired : 
"Q. Jc * * What we are trying to determine here is, 

is it an absolute necessity that you take this 

man's land a.way from him? A. I don k know as I 

1 can give you a yes' or 'no' answer on it. 

"Q. Possibly, you knew that it would be 'no'? 

A. If there was no other ramifications involved 

on the clear zone, I would say that you could say that it wouldn't be. 11 

After hearing the evidence, the district court took judicial 

notice of the regulations of the Federal Aviation Administration 

and signed the order of necessity allowing the County to take 

title to the land in fee simple absolute. Defendants appeal from 

that order and raise this issue: Has the county demonstrated the 

necessity to condemn defendants' land in fee simple absolute? 

The authority to exercise the power of eminent domain for 

county airport purposes has been delegated by the Montana legislature 

to the counties by section 1-801, R.C.M. 1947. However, before 

exercising this power, the County must first show that the taking 

is necessary to a public use. Section 93-9905(2), R.C.M. 1947. 

State Highway ~omrn'n v. Yost Farm Co., 142 Mont. 239, 384 P.2d 277. 

It is well established that a condemning authority can not 

acquire a greater interest or estate in the condemned property 

than the public use requires. This rule in 3 Nichols on Eminent 

Domain 5 9.2[2], states: 

"It necessarily follows from the principle that 

property cannot corrstitutiona1.ly be taken by eminent 

domain except for the public use, that no more 

property can be taken by eminent domain than the public 

use requires, since all that might be appropriated in 

excess of the public needs would not be taken for the 

public use. While considerable latitude is allowed 

in providing for the anticipated expansion of the requirements of the public, the rule itself is well established, and applies both to the amount of property 

to be acquired for public use and to the estate or 

interest -acquired in such property. If an easement will 

satisfy the public needs, to take the fee would be unjust 

to the owner, who is entitled to retain whatever the public 

needs do not require, and to the public, which should not 

be obliged to pay for more than it needs. f: * *" (Emphasis 

supplied). 

See also: Berry v. Southern Pine Electric Power Ass'n, 222 Miss. 

260, 76 So.2d 212; Seattle v. Faussett, 123 Wash. 613, 212 P. 1085; 

Warm Springs Irr. Dist. v. Pacific Live Stock Co., (1921, CA9 Ore.) 

270 F. 560. 
In State v. Whitcomb, 94 Mont. 415, 429, 22 P.2d 823, this 

Court examined the requirement of necessity and stated: 

"* * * The solution of the question of necessity in 

a given case involves a consideration of facts which 

relate to the public, and also to private citizens 

whose property is taken. The greatest good on the 

one hand, and the least injury on the other, are the 

questiom of fact to be determined in passing upon the 

question of necessity. I I 

Apply the balancing test of Whitcomb to the instant case, 

the least private injury to defendants' property occurs when the 

County is granted an easement to rid the "clear zonel',of all obstructions, prevent the creation of future obstructions and to 

allow it the right of entmce and exit to insure that the safe and 

unrestricted passage of aircraft in and over the area is uninhibited. 

Such an easement is entirely consistent with the regulations 

established by the Federal Aviation Administration enunciated in 

14 CFR § 151.9: 

"(a) Whenever funds are allocated for developing new 

runways or landing strips, or to improve or repair 

existing runways, the sponsor must own, acquire, or 

agree to acquire, runway clear zones. Exceptions are 

considered (on the basis of a full statement of facts 

by the sponsor) upon a showing of uneconomical acquisition costs, or lack of necessity for the acquisition. 

"(c) For the purposes of this section, an airport 

operator or owner is considered to have an adequate 

property interest if it has an easement (or a covenant 

running with the land) giving it enough control to rid 

the clear zone of all obstructions * * * and to prevent 

the creation of future obstructions; together with the 

right of entrance and exit for those purposes, to ensure 

the safe and unrestricted passage of aircraft in and 

over the area. " (Emphasis supplied. ) 

The County has not demonstrated the necessity for taking a 

fee simple title to defendants' property. 

From what has been said heretofore, it appears the preliminary 

order of comdenmation should not have been issued; it is ordered 

dismissed. 
,.Me Concur: 

Chief Justice 

Justices.