No. 12823 INTHE 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: GaryWinston, County Attorney, argued, Butte,

Montana Maurice Hennessey, Deputy County Attorney, argued,

Butte, Montana

Submitted: January 21, 1975 Decided:

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### Mr. Justice John Conway Harrison delivered the Opinion of the Court

# . This isan appeal from a preliminary order of condemnation entered inthe district court, SilverBow County, wherein the County exercised 

### itspower of eminent domain to condemn 3.64 acres of defendants

## ' land. The facts of the case are: On October 15, 1970, silver Bow County initiatedan action tocondemn 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" atthe end of the runway to comply with the present regulations of the Federal Aviation Administration. Defendant landowners, Carl and Patricia Hafer, fileda 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 filingof the condemnation complaint, a necessity hearingwas held and the district court heard the testimony of two witnesses inbehalf 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 tocondemn defendants' land for airport purposes. Charles Engdahl, a civilengineer employed by the Federal Aviation Administration, testified the defendants' land was located

Il within the clear zone" approach to the a.irportas defined in the regulations of the Federal Aviation Administration. Further, that itwas necessary to acquire this property pursuant toa grant agreement entered intobetween the Federal Aviation Administration and the SilverBow County Airport. The alleged grant agreement was not introduced into evidence. On cross-examination, however, this transpired:"Q. Jc 

# ** What we are trying todetermine here 

### is, isit 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 itwould be 'no'? A. If therewas 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 titletothe land in fee simple absolute. Defendants appeal from that order and raise this issue: Has the county demonstrated the necessity tocondemn 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 countiesby section 1-801, R.C.M. 1947. However, before exercising this power, the County must first show that the taking 

### isnecessary to a public use. Section 93-9905(2), R.C.M. 1947. StateHighway ~omrn'nv. Yost Farm Co., 142 Mont. 239, 384 P.2d 277. It iswell 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 3Nichols on Eminent Domain 

### 5 9.2[2], states: "It necessarily follows from the principle that property cannot corrstitutiona1.lybe 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 allthat might be appropriated in excess of the public needs would not be taken for the public use. While considerable latitude isallowed inproviding for the anticipated expansion of the requirements of the public, the rule itself iswell established, and applies both tothe amount of property tobe 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 feewould be unjust to the owner, who 

### is entitled toretainwhatever the public needs do not require, and to the public, which should not be obliged topay formore 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, 123Wash. 613, 212 P. 1085; Warm Springs Irr. Dist. v. Pacific Live Stock Co., (1921, CA9 Ore.) 270 F. 560.In Statev. 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 factswhich relate to the public, and also toprivate citizens whose property 

### is taken. The greatest good on the one hand, and the least injury on the other, are the questiomof fact tobe determined in passing upon the question of necessity. I I Apply thebalancing test of Whitcomb tothe instant case, the least private injury to defendants' property occurs when the County is granted an easement torid the "clear zonel',ofallobstructions, prevent the creation of future obstructions and to allow it the right of entmceand exit to insure that the safe and unrestricted passage of aircraft in and over the area 

### isuninhibited. Such an easement 

### is entirely consistent with the regulations establishedby the Federal Aviation Administration enunciated in 14 CFR § 151.9: "(a) Whenever funds are allocated fordeveloping new runways or landing strips, or toimprove orrepair existingrunways, 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 acquisitioncosts, or lack of necessity for the acquisition.

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

### is considered tohave 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 allobstructions

# *** and toprevent 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 titletodefendants' property. From what has been saidheretofore, it appears the preliminary order of comdenmation should not have been issued; it is ordered dismissed.,.MeConcur:

Chief Justice

Justices.