79-24- 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

YELLOWSTONE VALLEY ELECTRIC 

COOPERATIVE, INC., a corporation, 

Plaintiff and Appellant, 

THE MONTANA POWER COMPANY, a 

corporation, 

Intervenor and Appellant, 

DUANE OSTERMILLER, THE 

MILWAUKEE MOTOR TRANSPORTATION 

CO., a colrporation, and GETTER 

TRUCKING, INC., a corporation, 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

County of Yellowstone. 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellants: 

Olsen, Christensen & Gannett, Billings, Montana 

Paul Olsen argued, Billings, Montana 

John Carl argued, Butte, Montana 

For Respondents: 

Anderson, Brown, Gerbase, Cebull & Jones, Billings, 

Montana 

Joseph Gerbase argued, Billings,, Montana 

Mike Greely, Attorney General, Helena, Montana 

Submitted: February 22, 1980 

~ecided :MAk 2 198a 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

c his is an appeal from a portion of a judgment of a 

Yellowstone County District Court ruling that section 69-4- 

603, MCA, does not constitute a taking of property without 

due process though it requires electric utilities and rural 

electric cooperatives to provide wire-raising services 

without reimbursement. 

Plaintiff-appellant, Yellowstone Valley Electric Cooperative, Inc. is a rural electric cooperative providing electric 

service to rural customers by means of an electric transmission and distribution network. Many of the lines constituting 

this network cross public highways and streets. Respondents 

each conduct enterprises involving the moving of oversized 

equipment or structures upon public highways and streets. 

The moving activities of respondents often require the 

raising of electric transmission lines. Section 69-4-603, 

MCA, provides that utilities and cooperatives are required 

to raise or remove their transmission and distribution 

lines, when oversized equipment and structures are moved, in 

order to facilitate the passage of such oversized loads. 

Plaintiff petitioned the Yellowstone County District 

Court for declaratory relief regarding respondents' moving 

enterprises. Plaintiff sought to have section 69-4-603, MCA, 

declared unconstitutional as a denial of equal protection 

and due process. The Montana Power Company was granted 

permission to intervene and also petitioned for similar 

declaratory relief. An evidentiary hearing was waived by 

the parties and briefs were submitted to the court. On 

September 10, 1979, the District Court ruled that a portion 

of the challenged statute violated equal protection require- 
ments and was, therefore, unconstitutional. The unconstitutional portion of the statute was a 1951 amendment which 

provided that persons, firms, or corporations engaged in 

moving oversized structures within the limits of a city or 

town pay all necessary and reasonable expenses of raising or 

cutting wires and removing poles. 

The amendment was held unconstitutional because it differentiated between inside and outside city or town limits 

with respect to costs. While determining this portion of 

the statute unconstitutional, the court also held that the 

remaining portions of the statute continued in full force 

and effect. Without the unconstitutional proviso, the 

statute returned to its pre-1951 amendment posture and was 

interpreted by the District Court as requiring utilities and 

cooperatives to provide wire-raising and cutting service 

without reimbursement in all circumstances. It is from this 

interpretation that plaintiff and intervenor appeal. 

Three issues are raised for our consideration upon 

appeal: 

(1) Was the District Court correct in interpreting 

section 69-4-603, MCA, as requiring utilities and cooperatives in all circumstances to provide wire-raising and 

cutting services without reimbursement? 

(2) Does section 69-4-603, MCA, unconstitutionally 

allow property to be taken for the private use of a private 

party? 

(3) Is section 69-4-603, MCA, unconstitutional because 

it is an unreasonable exercise of the police power? 

Section 69-4-603, MCA, is set forth below in its en.tirety 

with the 1951 amendment, which was held unconstitutional by 

the District Court, underscored: 
"(1) It shall then be the duty of any person, 

firm, or corporation owning or operating said 

poles or wires after service of notice, as required by 69-4-602, to furnish competent workmen 

or linemen to remove such poles or raise or cut 

such wires as will be necessary to facilitate 

removing such house, building, derrick or other 

structure. 

"(2) No person, firm, or corporation engaged in 

moving any house, building, derrick, or other 

structure shall raise, cut or in any way interfere with any such poles or wires, unless the 

persons or authorities owning or having control 

of the same shall refuse to do so after having 

been notified, as required by 69-4-602; then, 

only competent and experienced workmen or linemen shall be employed in such work, and in such 

case the necessary and reasonable expense shall 

be paid by the owners of the poles and wires 

handled; provided, however, -- that any person, 

-- firm or corporation engaged in moving such strutture within the --- limits of anycity -- or town shall 

pay -- all necessary - and reasonable expense 7 of 

raising or cuttinq such wires or removing such 

poles. The work shall be donein a careful and 

workmanlike manner, and the poles and wires 

shall be promptly replaced and damages thereto 

promptly repaired." 

The District Court in this case characterized the above 

statute as an exercise of the police power, and, accordingly, 

held that the burden of any expenses created by the statute 

could be imposed upon utilities and cooperatives without 

reimbursement. In reaching its conclusion, the court noted 

that the statute "was part of a 1929 enactment . . . which 

made no express provision as to who was to stand the cost of 

wire-raising services except in the instance when the mover 

did the work because of the owner's refusal to do it when 

properly requested." Faced with determining the question of 

costs where there was owner compliance, however, the court 

found that costs could be imposed upon utilities and cooperatives because the statute was an exercise of the police 

power. There was no need for compensation. The District 

Court, speaking of the statute, stated: 
". . . Having the purpose of preventing uncontrolled and unsafe interference with electric 

service, it is well within the limits of a permissible exercise of police power. As such, the 

fact that it results in an imposition upon the 

use of the utility owner's property or imposes 

a burden of expense upon the utility does not in 

itself violate due process or constitute the 

taking of private property for public purposes 

without just compensation. . ." 

Appellant and intervenor attack the holdings of the 

District Court here on two alternative constitutional grounds. 

On one hand, they argue that, if the statute is an exercise 

of the police power, it is unconstitutional because it is an 

unreasonable regulation: it unreasonably and arbitrarily 

imposes costs upon parties which do not occasion the need 

for raising or cutting electric transmission lines. It is 

contended that it is more reasonable to impose costs upon 

the movers and their clients. Alternatively, appellant and 

intervenor argue that the statute is unconstitutional because it allows for a "taking" of utility property for the 

private use of another. It is submitted that the activity 

of wire-raising or cutting constitutes a temporary deprivation of property which is conducted solely for the benefit 

of moving companies and their clients. The statute, therefore, is an unconstitutional exercise of the power of eminent 

domain. 

The threshold inquiry in considering these arguments is 

in determining whether section 69-4-603, MCA, is an exercise 

of the police power or, rather, sounds in the principles of 

eminent domain. The police power of the state, of course, 

is that which enables states to pass regulations for the 

health, safety and general welfare of the people. N. 0. 

Public Service Comrn. v. New Orleans (1930), 281 U.S. 682, 50 

S.Ct. 449, 74 L.Ed. 1115; State v. Penny (1910), 42 Mont. 

118, 111 P. 727; Billings Properties, Inc. v. Yellowstone 
Co. (1964), 144 Mont. 25, 394 P.2d 182. In the exercise of 

the police power, due process requirements of the Fourteenth 

Amendment may be met without just compensation. Eminent 

domain, however, is the right of the state to take private 

property for public use. Helena Power Transmission Co. v. 

Spratt (1907), 35 Mont. 108, 88 P. 773; section 70-30-101, 

MCA. In the exercise of the power of eminent domain, just 

compensation is required. 

In determining whether our statute is an exercise of 

the police power or eminent domain, we note a split of 

authority among other jurisdictions facing the same issue 

with respect to similar statutes and ordinances. See Annot., 

83 A.L.R.2d 464 (1962). In one line of cases, ordinances 

and statutes allowing for the adjustment of wires and poles 

in moving oversized objects have been upheld as valid exercises of the police power. See, Missouri Pac. Ry. v. Sproul 

(Kan. 1916), 162 P. 293; State v. Omaha & C. B. St. Ry. Co. 

(Neb. 1916), 161 N.W. 170; Weeks v. Carolina Tel & Tel. Co. 

(N.C. 1915), 84 S.E. 812; Indiana Ry. Co. v. Calvert (Ind. 

1907), 80 N.E. 961. The moving of buildings and other 

oversized objects in these cases has been recognized as a 

reasonable and necessary public use, and the rights of the 

people to use the streets have been held superior to the 

rights of utilities to locate their facilities upon such 

streets. In another line of cases, ordinances and statutes 

have been held to be takings under the law of eminent domain. 

Ex Parte Ashworth (Ala. 1920), 86 So. 84; Edison Elec. 

Light & Power Co. of St. Paul v. ~lomquist (Minn. 1911), 

185 F. 615; Kibbie Tel. Co. v. Landphere (Mich. 1908), 115 

N.W. 244; Northwestern Tel. Exch. Co. v. Anderson (N.D. 

1904), 98 N.W. 706. In these cases, the moving of oversized 
objects has been held to be a use which is private, permissive, and extraordinary, conducted only for the benefit of a 

mover and his client and subject to the vested and superior 

rights of utilities. 

Having reviewed these authorities, we find that our 

statute is an exercise of the police power and does not 

sound in eminent domain. The District Court's characterization of section 69-4-603, MCA, was correct: the statute is 

a regulation enacted by the legislature in the exercise of 

the police power aimed at protecting the public health, 

safety and general welfare. Here, the statute serves several 

vital public interests. First, public safety is concerned. 

The statute is an obvious attempt to avoid the occurrence on 

the part of the general public of high voltage electrical 

accidents. The statute states that "only competent and 

experienced workmen or linemen" may raise or cut wires. 

Second, the statute confers a public benefit. Where the 

statute provides for a controlled method of accommodating a 

mover's need so that there is prompt replacement and repair, 

there is minimal interference in providing electrical service to the public. Third, the public interest is also 

served in that the statute allows for a reasonable and 

necessary public use, the moving of oversized objects upon 

the public highways of the state. Finally, the statute 

recognizes the right of the public to use the highways. See, 

Hawn v. Kansas Gas & Electric Co. (Kan. 1927), 252 P. 245; 

Sipult v. City of Pratt (Kan. 1949), 212 P.2d 221. 

The statute does not involve the appropriation of a 

property right or a 'taking' under the laws of eminent 

domain in any traditional sense. In locating their faci- 
lities upon a public right-of-way, utilities and cooperatives are conferred a property right which, by its very 

nature, is subject to other competing franchises and privileges. The easement which is obtained is not an absolute 

property right; there is no right conferred upon utilities 

to have their facilities occupy a particular location. New 

Orleans Gaslight Co. v. Drainage Comr~~'s of New Orleans 

(1905), 197 U.S. 453, 25 S.Ct. 471, 49 L.Ed. 831; Jones v. 

Burns (1960), 138 Mont. 268, 357 P.2d 22. Where other 

competing interests and franchises become involved, a utility may be forced to give up a particular location of its 

facilities, and reasonable interference may be necessary and 

proper. Southern Bell Tel. & Tel. Co. v. Williams Bros. (La.cw 

1932), 141 So. 835. The statute is therefore an exercise of 

the police power and eminent domain is inapplicable. 

Appellant and intervenor urge that the statute is unconstitutional even if it is deemed an exercise of the 

police power. They contend that the statute is an unreasonable regulation because it arbitrarily imposes the costs 

of wire-raising and cutting upon parties who do not occasion 

the need for that activity. They submit that it would be 

much more reasonable to require respondents and their clients to pay for the costs of wire-raising and cutting. 

It is well established that a police power regulation 

must be reasonably adapted to its purpose and must injure or 

impair property rights only to the extent reasonably necessary 

to preserve the public welfare. Garden Spot Market, Inc. v. 

Byrne (1963), 141 Mont. 382, 378 P.2d 220; Freeman v. ~oard of 

Adjustment (1934), 97 Mont. 342, 34 P.2d 534. he standard 

of reasonableness is the constitutional measure of the 
proper exercise of the police power. Billings Properties, 

Inc. v. Yellowstone Co., supra; Bettey v. City of Sidney 

(1927) , 79 Mont. 314, 257 P. 1007; Leischner v. City of 

~illings (1959), 135 Mont. 109, 337 P.2d 359. It is also 

well settled that, as a general rule, acts conducted in the 

proper exercise of police power do not constitute a taking 

of property and do not entitle the owner of such property to 

compensation for the regulation or impairment thereof. 

Compensation is due, however, in cases which exceed regulation or impairment and there is anappropriation of property 

which amounts to a taking or deprivation of property for 

public use. 16 Am.Jur.2d Constitutional Law S586. 

In this case, the lines of a utility or cooperative are 

momentarily raised or severed to allow the passage of buildings or other oversized objects upon the public streets. 

Though there may be a temporary interference or interruption 

to customer service and inconvenience or hardship to the 

utility, the property of the utility or cooperative is in no 

way condemned in any permanent sense. Appellant and intervenor rely on two cases for the proposition that a temporary 

deprivation of property may constitute a "taking". See, 

Fuentes v. Shevin (1972), 407 U.S. 67, 92 Sect. 1983, 32 

L.Ed.2d 556; Sniadach v. Family Finance Corp. (1969), 395 

U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d Those cases, 

however, involve personal property being attached under 

garnishment or replevin statutes simply upon an ex parte 

application to a court clerk without a hearing and are 

factually distinguishable from the situation here. In this 

case, the statute amounts to a regulation or an impairment 

of utility property and not an actual taking or appropriation of property for the private use of another. 
We find, therefore, that the statute is a reasonable 

exercise of the police power. Further, we find that it is 

not unreasonable to impose the costs of wire-raising or 

cutting upon utilities and cooperatives. Imposing costs 

upon utilities and cooperatives is perhaps the most effective way of spreading the burdens created by the statute. 

In this way, consumers share both the burdens and the general 

benefits which the statute intended and is calculated to 

secure. Imposing costs upon respondents and other moving 

companies would be too burdensome and would, in effect, make 

the activity of moving buildings and other oversized objects 

cost-prohibitive. Accordingly, we affirm the judgment of 

the District Court. 

We concur: C/ 

Chief Justice 

Qdh% 

Justices