NO. 94-441

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

MONTANA POWER COMPANY, a Montana

Corporation,

Plaintiff and Respondent,

BURLINGTON NORTHERN RAILROAD COMPANY,

a subsidiary of BURLINGTON

NORTHERN, INC.,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Daniel Hoven, Ken C. Crippen, Browning, Kaleczyc,

Berry & Haven, Helena, Montana

For Respondent:

Joseph W. Sabol, Bozeman, Montana

Filed:

Heard and Submitted: May 18, 1995

Decided: July 25, 199.5
Justice Fred J. Weber delivered the Opinion of the Court

This is an appeal from a decision of the Eighth Judicial

District Court granting Montana Power Company's (MPC) Preliminary

Condemnation Order and Order of Possession of the easement through

Burlington Northern's (BN) property. We affirm and remand to the

District Court as herein specified.

We restate the issues on appeal:

I . Did the District Court err when it found an easement through

BN's property was necessary for the intended use and subject to

condemnation?

II. Did the District Court err when it found that MPC's

transmission line was a more necessary use?

III. Did the District Court err when it failed to include any of

the requested provisions in its Order of Possession?

MPC has contracted with various railroads using wire-line

permits to construct, operate, and maintain electric transmission

lines through railroad rights-of-way for over fifty years.

Currently, MPC operates transmission lines through such rights-ofway under 1,400 wire-line permits provided by BN.

In 1990, MPC determined additional facilities needed to be

constructed in southwest Great Falls to adequately service its

customers as required by law. The line's construction cost

approximately $2.2 million. BN does not dispute the need nor the

location of the 100 kV transmission facility. MPC acquired

easements by purchase on all private parcels of property along the

proposed route for the transmission lines except for BN's property.

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MPC offered to purchase an easement interest for the Great Falls

transmission facility through BN's property. EN offered to grant

a wire-line permit instead. MPC claimed the permit's revocability

and indemnification clauses were onerous and rejected BN's offer.

Subsequently BN offered an easement to MPC which incorporated

a Memorandum of Understanding which BN claimed met MPC's concerns

regarding permanency while addressing the issue of indemnification

which was of concern to BN. MPC rejected BN's offer of an easement

because MPC claimed the Memorandum of Understanding granted to BN

the sole and exclusive option of revocation. Finally, in order to

facilitate MPC's request to begin construction of the transmission

line, BN offered a revised wire-line permit extending the

termination provision from 30 days to 180 days. MPC rejected this

offer as well.

MPC filed a Complaint together with a request for an Order to

Show Cause in the Eighth Judicial District Court to condemn an

easement over BN's property for the purpose of constructing,

operating, and maintaining an electric transmission line. BN filed

a motion for Summary Judgment in its favor with a supporting brief

contending that MPC's purpose could be accomplished through a wireline permit historically used by the two parties. MPC filed a

brief in opposition to BN's motion and requested from the court a

Preliminary Condemnation Order under § 70-30-203, MCA. The

District Court found an easement was the minimum estate in BN's

land necessary for MPC's proposed use as required for the public's

interest. The court denied BN's motion for Summary Judgment and

3
granted MPC's Preliminary Condemnation Order.

Pursuant to statute, BN filed its Statement of Claim for

$8,700--the value of the easement sought to be condemned. However,

BN claimed the value represented that of the easement along with

BN's Memorandum of Understanding or subject to additional

compensation for BN's increased liability. After posting $8,700,

MPC requested and was granted an Order of Possession. MPC then

commenced construction of the electrical transmission facility. BN

moved the court to reconsider this Order. The court denied BN's

motion

From the District Court‘s issuance of the Preliminary

Condemnation Order and the Order of Possession, BN appeals.

Standard of Review

Our standard of review is set forth in Y A Bar Livestock

Company v. Harkness (Mont. 1994), 887 P.2d 1211, 1213, 51 St.Rep.

1517, 1519, as follows:

This Court reviews the findings of a trial court

sitting without a jury to determine if the court's

findings are clearly erroneous. Rule 52(a), M.R.Civ.P..

A district court's findings are clearly erroneous if they

are not supported by substantial credible evidence, if

the trial court has misapprehended the effect of the

evidence, or if a review of the record leaves this Court

with the definite and firm conviction that a mistake has

been committed. Interstate Prod. Credit Ass'n v. DeSaye

(1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

Issue I

Did the District Court err when it found an easement through

BN's property was necessary for the intended use and subject to

condemnation?

Section 70-30-111, MCA, describes the required proof for a

4
taking by condemnation:

Before property can be taken, the plaintiff must show by

a preponderance of the evidence that the public interest

requires the taking based on the following findings:

(1) that the use to which it is to be applied is a use

authorized by law;

(2) that the taking is necessary to such use;

(3) if already appropriated to some public use, that

the public use to which it is to be applied is a more

necessary public use;

(4) that an effort to obtain the interest sought to be

condemned was made by submission of a written offer and

that such offer was rejected.

Electric power lines are a public use authorized by law for the

exercise of the right of eminent domain. Section 70-30-102(11),

In determining if the taking is necessary for the authorized

use, BN cites to Montana Power Company v. Bokma (1969), 153 Mont.

390, 390, 457 P.2d 769, 774. In that case, we held necessity means

"reasonable, requisite, and proper for the accomplishment of the

end in view, under the particular circumstances of the case." BN

argues MPC's condemned easement over BN's railroad right-of-way is

a greater interest than is necessary for the intended use. BN

refers to Silver Bow County v. Hafer (1975), 166 Mont. 330, 333,

532 P.2d 691, 693, where we stated a condemning authority cannot

acquire a greater interest or estate in the condemned property than

the public use requires. To do so would obligate the public to pay

for more than it needs

BN contends an easement without any restrictions is too great

an interest when a wire-line permit will permit the desired use.

BN claims a wire-line permit includes the right of entry upon and

occupation of land and is a right in land which may be taken for

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public use. See § 70-30-104(4), MCA. BN offered to MPC a wireline permit which allowed for the location, construction,

operation, maintenance, replacement and removal of MPC's Great

Falls transmission line. MPC rejected this offer.

In response to MPC's concern about the wire-line permit's lack

of permanence and allowance for rent escalation, BN offered to MPC

an Electric Transmission Line Non-exclusive Easement which

incorporated a Memorandum of Understanding. BN claims the

proffered easement was non-revocable and contained a one-time fee

payment. Yet, BN argues MPC rejected this offer and insisted upon

the condemnation of an unreasonably unrestricted easement.

BN alleges MPC sought an unrestricted easement because

obtaining greater ownership rights was in the best interest of

MPC's shareholders. BN contends that allowing MPC to take an

easement when a permit interest would suffice all in the name of

shareholders' best interests violates fundamental principles this

Court has upheld in eminent domain proceedings.

MPC claims that for eighty years it has obtained wire-line

permits from BN for constructing electrical lines throughout

Montana. During that time, MPC showed that BN and its assignees

subjected MPC to escalating fee provisions, restrictive

indemnification provisions, and unilateral termination and

relocation provisions. MPC contends it could no longer justify the

permit process required to be followed by BN. A decision was made

by MPC's corporate management to seek and obtain when necessary an

easement from BN for the construction, operation and maintenance of

6
electrical transmission lines in BN's railroad rights-of-way.

MPC concedes that it can construct, operate and maintain the

electrical transmission facility through a wire-line permit.

However, MPC claims the permit offered by BN was revocable without

cause 100 days after receipt of notice by MPC and contained onerous

indemnification and relocation provisions. Under that permit's

indemnification provisions, MPC argues it opens itself up to untold

and unimagined exposure for BN's negligence. MPC submits that

parties should be responsible for their own negligent conduct.

Furthermore, MPC would not accept the unilateral termination

provisions of the permit. MPC argues the permit is nothing more

than a mere license as evidenced by its very terms. A license is

revokable at will and is not an interest in land. An easement,

however, is a non-possessory interest in the land of another. MPC

argues this distinction is significant when resolving questions

about the applicability of the statutes of fraud and the

availability of compensation in condemnation actions.

MPC claims the Non-exclusive Easement proffered by BN is

nothing more than a permit/license no matter what the name implies.

MPC submits that history has taught the company it is no longer

appropriate for MPC to accept BN's wire-line permit, revised or

not, or its supposed Non-exclusive Easement which, when coupled

with the Memorandum of Understanding, grants to BN the sole and

exclusive option of revocation.

Section 70-30-111, MCA, as previously set forth, requires that

the plaintiff show by a preponderance of the evidence that the

7
public interest requires the taking based on four specified

findings. Subparagraph (1) requires a finding that the use which

is to, be applied is a use authorized by law. Section 70-30-

102 (11) , MCA, lists electric power lines as a public use subject to

eminent domain proceedings. MPC produced uncontradicted testimony

about the area's need for the electric transmission facility as

well as the practicality of locating the line on BN's right-of-way.

BN, in fact, does not contest the need nor the location of the

transmission line. We affirm the conclusions of the District Court

that subparagraph (1) of § 70-30-111, MCA, has been met.

Subparagraph (3) of § 70-30-111, MCA, pertains to the more

necessary public use question which is addressed in the next issue.

Subparagraph (4) of that section requires a finding that an effort

was made to obtain the interest by submission of a written offer

and that such offer was rejected. Again, there is no dispute that

MPC made such an offer to BN and that its offer was rejected.

We next discuss subparagraph ('21, which requires a finding

that the taking is necessary to such use. This Court has stated

that "necessary" is not intended to mean absolute, but rather

reasonable, requisite, and proper. Montana Power Company, 457 P.Zd

at 774. As previously mentioned, MPC has submitted uncontradicted

testimony as to the need for the electric transmission facility and

practicality of locating it on the BN's right-of-way and BN does

not contest that need nor the location. We conclude that the

record contains substantial credible evidence to support the

District Court's finding and conclusion that there was a public

8
need for a transmission line in southwest Great Falls which would

run along BN's right-of-way. We note that BN produced no evidence

to contradict the choice of location or the public's need for the

proposed line.

MPC contends that § 70-30-206, MCA, gives the District Court

the power to determine if the interest sought to be condemned is

necessary. In pertinent part § 70-30-206, MCA, provides:

70-30-206. Powers of court--preliminary

condemnation order. (1) The court has power to:

(a) regulate and determine the place and manner of

making the connections and crossings and enjoying the

common uses mentioned in 70-30-103(l) (a) . .

(b) limit the interest in real property sought to be

appropriated if in the opinion of the court the interest

sought is not necessary.

In pertinent part § 70-30-103, MCA, provides:

70-30-103. What private property zay be taken. (1)

The private property which may be taken under this

chapter includes:

iej all rights-of-way for any and all the purposes

mentioned in 70-30-102 and any and all structures and

improvements thereon, and the lands held and used in

connection therewith must be subject to be connected

with, crossed, or intersected by any other rights-of-way

of improvements or structures thereon. They must also be

subject to a limited use in common with the owner thereof

when necessary; but such uses, crossings, intersections,

and connections must be made in manner most compatible

with the greatest public benefit and least private

injury.

MPC contends that under the foregoing sections, the District Court

had the discretion to determine if the interest sought to be

condemned was necessary. It further contends that sufficient

evidence was produced to establish the necessity of taking, and

that, as a result, BN now has the burden of proving the taking was

excessive or arbitrary and therefore unnecessary. Lincoln/Lewis &

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Clark County Sewer District v. Bossing (1985), 215 Mont. 235, 239,

696 P.2d 989, 991. MPC further stresses that the District Court

found no basis on which to limit the interest sought after

consideration of all of the evidence presented.

The District Court concluded "an easement for so long as the

line is necessary is the minimum estate in [BN'S] land required by

MPC." As a result, the District Court concluded "MPC is entitled

to a preliminary condemnation order for the easement sought to be

condemned over, through and across the lands of [BN] as

specifically described in Exhibit 'A' attached to [MPC'sl Complaint

for the construction of an electrical transmission line."

Applying the above-described standard of review, we hold that

the District Court's conclusion, that an easement for the electric

power transmission line is necessary, is supported by substantial

credible evidence. We further hold that the District Court did not

misapprehend the effect of the evidence and that our review of the

record does not suggest to this Court that a mistake has been

committed.

The dissent points out that it is possible for MPC to locate,

construct, operate, maintain and remove the transmission facility

with a wire-line permit. BN's proposed wire-line permit contained

a 180 day termination provision. There is substantial evidence in

the record to support a conclusion that the termination provision

is unreasonable and improper considering the expenses of over $2

million to initially construct the facility and the length of time

which it takes to reconstruct or move such a facility as well as

10
the public's need for this particular facility. In response to

this suggestion, we therefore conclude that there is substantial

evidence to support the finding of the District Court that an

easement was necessary as compared to such a wire-line permit. 1n

addition, we conclude that the District Court did not misapprehend

the evidence nor make a mistake in its findings.

We hold that the District Court did not err when it found an

easement through BN's property was necessary for the intended use

and subject to condemnation.

Issue II

Did the District Court err when it found that MPC's

transmission line was a more necessary use?

Section 70-30-111(3), MCA, states that if the property is

already appropriated to some public use, the public use to which it

is condemned must be a more necessary use.

BN claims the District Court misapplied the legal analysis in

its determination of "more necessary use". The District Court

found the two public uses compatible, but then went on to find

MPC's public use a more necessary use than that of BN. BN argues

finding the uses compatible in the first instance made it

unnecessary and inappropriate to make the determination of a more

necessary use in favor of MPC. BN alleges the court was confused

on this issue, and, therefore, erred in not including in its grant

to MPC the historical provisions necessary to protect BN's preexisting railroad.

MPC asserts the Legislature of the State of Montana intended

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the classification of a "more necessary public use" to be required

when a proposed use would destroy a prior one. Cocanougher v.

Zeigler (1941), 112 Mont. 76, 112 P.2d 1058. MPC argues a mere

inconvenience to the prior use or the occurrence of compensable

damages is not sufficient to deny a grant of eminent domain for the

proposed use. MPC alleges any potential damage to BN's operation

would be marginal; therefore, the District Court correctly found

the two uses compatible.

Paragraph 7(c) of the District Court's finding of fact states:

That MPC has shown by a preponderance of the evidence

that the public interest requires the taking of a portion

of [BN]'s right-of-way and:

. . .

c . That notwithstanding the fact that the right-ofway is already appropriated for a public use that the

easement sought to be condemned by MPC for the electrical

transmission line is a more __necessary public use and one

which is compatible with the use of [BN'S] land;

. .

Section 70-30-111(3), MCA, provides that if the property is

already appropriated to a public use, the use to which it is to be

applied must be determined by a preponderance of the evidence to be

a more necessary public use. In Montana Talc Co. v. Cyprus Mines

Corp. (1987), 229 Mont. 491, 502-04, 748 P.2d 444, 451-52 (citing

Butte, Anaconda & Pacific Railway Company v. The Montana Union

Railway Company (1895), 16 Mont. 504, 538, 41 P. 232, 244), we

recognized that "'our legislature has imposed upon the court the

additional responsibility of judicially determining whether the use

to which the appellants did or would put the particular lands is a

more necessary one to the public than that to which they have

already been appropriated. .I' In interpreting the “more

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neCeSSary” requirement of § 70-30-111(3), MCA, we have held that

this determination affects condemnation proceedings only when we

have two public uses that are not compatible uses. Montana Talc,

748 P.2d at 452; Cocanouqher, 112 P.2d at 1061; Butte, Anaconda &

Pacific, 41 P. at 244.

In Cocanousher, the issue presented was whether the plaintiff

and defendant could have a joint use of a water supply ditch where

one use was not more necessary than the other. In that case, the

Court stated:

The next question that arises concerns the legal

question of whether or not, as a matter of law, one may

condemn a right-of-way through a ditch on another's land

where the ditch is being used to irrigate the latter's

land. Defendant invokes subdivision 3 of section 9936,

Revised Codes [same as subparagraph (3) of § 70-30-111,

MCAI Under this subdivision the real question is: Will

the taking of this private property, already dedicated to

one public use, destroy the prior public use? Or, in

other words, will the enlargement and joint use of the

ditch in question result in destroying or materially

injuring the defendant's right to the use of the ditch?

That subdivision can only apply where there is a taking

of the property dedicated to a public use and

appropriating it to another public use. The implication

is clear that the legislature had in mind in enacting

that subdivision, when it speaks of a more necessary

public use than that to which the property is already

dedicated, that the latter use is such as will destroy

the prior use. That not being the case, subdivision 3

does not inhibit the condemnation here sought.

Cocanousher, 112 P.2d at 1060

MPC seeks to condemn private property already dedicated to one

public use in order for it to provide a different public use. In

following Cocanouqher, we must ask whether MPC's proposed use will

destroy or materially injure BN's prior use. The District Court

found the two public uses to be compatible uses. BN and MPC both

13
agree that the two uses could be made compatible. The latter use

does not inhibit the prior use; therefore, we conclude subsection

(3) of 5 70-30-111, MCA, does not apply to these condemnation

procedures.

In Montana Talc Co., we refer to Cocanouqher's extensive

.discussion of the requirement in § 70-30-111(3), MCA, for a "more

necessary" public use. We concluded:

The proposed use must be "more necessary" where the

effect of granting the succeeding public use condemnation

will deprive the first owner of his use altogether. If

the first owner will be completely deprived of his public

use of appropriated property, such that his use will be

defeated or seriously interfered with by the proposed

condemnor's right if granted, the statute requiring a

"more necessary" public use comes into play. The

requirement of a more necessary public use "does not

preclude condemnation for a ioint use which will not

interfere with the use thereof bv the owner."

Cocanousher, 112 P.2d at 1051. (Emphasis added.)

Montana Talc Co., 748 P.2d at 454.

BN's argument that "compatibility" and "more necessary" are

inconsistent terms fails. A more necessary use can also be a

compatible use. The District Court made a "more necessary"

determination under the erroneous assumption that such

determination was required under the statute. The court was not

required to make that determination because MPC's use would not

destroy nor materially injure BN's prior use. In any event, we

conclude the court's "more necessary" determination is not

reversible error because the court also found the two uses

compatible.

We hold the District Court did not commit reversible error

when it found that MPC's transmission line was a more necessary

14
use.

Issue III

Did the District Court err when it failed to include any of

the requested provisions in its Order of Possession?

The District Court granted to MPC the easement attached to

MPC's complaint--the Overhead Electric Right-of-way Easement. That

easement gave to MPC the right "to construct, operate, maintain,

replace and remove an electric transmission line with electric

distribution underbuild facilities, associated guy facilities,

communication system and necessary appurtenances over, under, along

and across that certain real property. . .'I The easement

included the "reasonable right of ingress to and egress from said

transmission line right of way over lands of the Grantor using

existing roads and trails where practicable, and the right to clear

and remove all timber and brush from the right of way . . . and to

cut and remove such trees outside of such right of way which may

endanger said line or lines."

BN claims any grant to MPC should also address the location of

poles, the design standards, clearances of lines, crossings,

coordination during construction of the transmission line,

indemnification for damages caused by or resulting from the

operation of the transmission line and its relocation. Without

these provisions, BN argues it may be unable to meet its statutory

obligations to keep timely fixed schedules, furnish shipping

facilities, construct drains and ditches, maintain fences and fire

guards, and construct and maintain commercial spur tracks.

15
In addition, EN contends the District Court's grant to MPC

unreasonably subjects BN to increased liability. BN's witness

testified to the potential safety and operational hazards of

locating high voltage transmission lines near steel railroad

operations. BN claims the two parties have co-existed in the past

solely because of the provisions included in the historical

agreements. BN asks that the Court insert the provisions of the

Memorandum of Understanding. The key provisions of such memorandum

are the following:

. .

13. Montana Power Company does hereby release,

indemnify, and save harmless [BN] . . from and against

all loss, damages, claims, demands, actions, causes of

action, costs and expenses of every character which may

result from any injury to or death of any person

whomsoever, including but not limited to employees and

agents of the parties hereto, or from loss of or damage

to property of any kind or nature to whomsoever

belonging, including but not limited to property owned

by, leased to, or in the care, custody, and control of

the parties hereto, when such injury, death, loss or

damage is caused by or contributed to by, or arises from,

the construction, installation, operation, maintenance,

condition, use, removal or existence of the electric

transmission line upon or adjacent to the Premises.

14. It is understood by the parties that said electric

transmission line will be in danger of damage or

destruction by fire or explosion incident to the

operation, maintenance, or improvement of the railway,

and [MPCI accepts the [easement] subject to such dangers.

It is, therefore, agreed, as one of the material

considerations for such . . easement . . . that [MPCI

hereby assumes all risk of loss, damage, or destruction

to said electric transmission line without regard to

whether such loss be occasioned by fire or sparks from

locomotives, or other causes incident to or arising from

the movement of locomotives, trains, or cars of any kind,

misaligned switches, or in any respect from the

operation, maintenance, or improvement of the railway, or

to whether such loss or damage be the result of

negligence or misconduct or any person in the employ or

services of [BNI, or of defective appliances, engines or

16
machinery, and [MPCI does hereby save and hold harmless

[BNI from all such damage, claims, and losses to said

electric transmission line.

15. Prior to construction, operation, maintenance,

and/or removal of the transmission line or any part of

the premises described on the electric transmission line

. . easement . ., [MPCI shall furnish to [BN] a

Railroad Protective Liability Policy. Such Railroad

Protective Liability Policy shall list [BN] as the named

insured and shall provide a minimum of Two Million

Dollars ($2,000,000) for each bodily injury claim and

property damage claim with an aggregate of Six Million

Dollars ($6,000,000). In addition, [MPC] shall furnish

to [BNI a Commercial General Liability Insurance Policy

. . . listing Burlington Northern Railroad Company as the

named insured. Such Commercial General Liability Policy

shall provide a minimum of One Million Dollars

($l,OOO,OOO) per occurrence for claims arising out of

bodily injury and property damage. [MPCI further agrees

that prior to construction, operation, maintenance and/or

removal of the transmission line, [BN] must expressly

approve of the types and amounts of insurance coverage

provided pursuant to this paragraph.

.

19. [MPCI agrees that if [BN] determines that the

location of the electric transmission line must be

changed for the relocation or placement of railroad

tracks or operational improvements, or for reasons beyond

the control of [BNI, [BN] shall notify [MPCI of such

plans and [BNI shall further use its best reasonable

efforts to secure an alternative location for the

electric transmission line. [MPCI shall then move the

affected electric transmission line to such alternative

location at [MPCl's own expense, cost and risk as soon as

practicable.

. .

22. If the Premises described, or any part thereof, _ _

shall at any time cease to be used by [MPC] for the

purposes of conducting electric currents through the

electric transmission line, or should the Premises be

converted to any other use whatsoever, or should [MPCI

fail to perform any of the conditions contained in [this

easement], then and in any such event, [BN], its

successors and assigns, may, at its or their option, reenter, retake and hold the Premises as of the present

estate of [BNI without compensation to [MPCl or any other

person whomsoever, for improvements or property removed,

taken or destroyed, or liability for loss of, or damage

to any part of the Premises or the improvements thereon,

and all the right, title, interest, benefits and

enjoyment of [MPC] in the premises, for any purposes

17
whatsoever, shall immediately cease.

Although MPC states in its brief that BN's wire-line permit

and Non-exclusive Easement are untenable due to their revocability

provisions (MPC specifically refers to 722 of BN's Memorandum of

Understanding), the transcript of the proceedings reveals MPC

agreed that both parties could be easily accommodated as to this

issue. It is the indemnification provisions which the court found

to be the real stumbling block.

MPC argued at the hearing that conditions included in BN's

Memorandum of Understanding relating to design standards,

coordination between the parties, safety, train delay and

relocation should not be attached to the documents for condemnation

because "it was always common place and common sense that the

district manager notified BN before they came on the property .

[and, in addition,] they never intentionally did anything

unsafe or that would cause harm or damage to BN or anybody else."

MPC alleges BN insists upon the attachment of the provisions in the

Memorandum of Understanding in order to unjustly limit the interest

condemned.

In the District Court's Memorandum Decision attached to its

Order Denying Defendant's Motion for Reconsideration of Order of

Possession, the court concluded there was no statutory basis or

requirement that protective conditions be set forth in the said

Order of Possession. We agree that the eminent domain statues do

not require protective conditions in an easement. However, the

Montana Legislature has given to the courts the power to set forth

18
protective provisions in an order for condemnation.

70-30-206. (1) The court has power to:

(a) regulate and determine the place and manner of

making the connections and crossings and enjoyinq the

mentioned in common uses 70-30-103(e) and of the

occupying of canyons, passes, and defiles for railroad

purposes, as permitted and regulated by the laws of this

state or of the United States . . (Emphasis added.)

.

The common uses extend to:

70-30-103. (1) The private property which may be taken

under this chapter includes:

.

(e) all rights-of-way for any and all the purposes

mentioned in 70-30-102 and any and all structures and

improvements thereon, and the lands held and used in

connection therewith must be subject to be connected

with, crossed, or intersected by any other right-of-way

of improvements or structures thereon. They must also be

subject to a limited use in common with the owner thereof

when necessary; but such uses, crossings, intersections,

and connections must be made in manner most compatible

with the greatest public benefit and least private

injury. .

Both railways and electric power lines are public uses enumerated

in this chapter. Section 70-30-102(10),(11), MCA.

Under the facts of this case, we hold that the District Court

did not commit reversible error when it failed to include any of

the requested provisions in its Order of Possession. However, the

District Court properly should have considered the foregoing

statutes and determined if any of the proposed conditions should

have been inserted in its Preliminary Condemnation Order or its

Order of Possession. 1n the absence of such a determination, we

hold the District Court shall determine if any of the conditions

proposed by either party should be inserted in the subsequent Final

Order of Condemnation.

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Lavoie, 466 P.2d at 599. The case at hand is comparable to Lavoie

in that we have two uses that must be coordinated to achieve the

greatest public benefit and the least private injury. In a similar

manner to Lavoie which considered reasonable access for the

condemnee, we conclude it is reasonable under these circumstances

for the District Court to consider what terms, if any, should be

included in its Final Order of Condemnation.

We affirm the District Court's Preliminary Condemnation Order

and its Order of Possession. On remand the District Court shall

take such action, including the holding of a hearing, which it

finds to be necessary in order to comply with this opinion.

--L+gjiJ&'

John R. Christensen

:,&i/tting for Justice Karla M. Gray

21
Justice James C. Nelson respectfully dissents.

I conclude that under the facts of this case and by reason of

the findings made by the District Court, plaintiff has failed as a

matter of law in its burden of proof under 5 70-30-111, MCA.

Moreover, as a consequence of our straining to interpret the

eminent domain statutes to justify the result, we have also, of

necessity, but improperly, now embroiled the District Court in the

task of writing what is, essentially, a contract for Montana Power

Company and Burlington Northern Railroad.

Among other requirements, 5 70-30-111, MCA, mandates that

before property can be taken by condemnation, the plaintiff must

prove and the trial court must find:

(2) that the taking is necessary to such use; [and]

(3) if already appropriated to some public use, that the

public use to which it is to be applied is a more

necessary public use. . .

As to subsection (2), the record in this case demonstrates

that MPC's taking of BN's property by eminent domain was not

necessary to MPC's location, construction and maintenance of its

powerline. In point of fact, the evidence showed unequivocally

that MPC currently operates and for decades has operated, miles

upon miles of transmission line under well over a thousand wireline permits of the very sort at issue here without any of the

drastic consequences that it argues now justifies condemnation. In

that time only one easement was issued by BN to MPC. MPC officials

testified in depositions that MPC could locate, construct, operate,

maintain, replace and remove the Great Falls electric transmission

22
line under a wire-line permit containing the permit fee,

revocation, relocation and indemnification provisions objected to.

In fact, the transmission line was located and constructed on and

over BN's property during the pendency of this litigation.

While MPC maintains that the same wire-line permit provisions

that it has operated under for years are now unacceptable and

onerous, the record clearly demonstrates that it has and does and

would, in this case, locate, construct, operate, maintain, inspect,

replace and remove its transmission line under a wire-line permit

without the necessity of taking BN's property by eminent domain.

In Silver Bow County v. Hafer (1975), 166 Mont. 330, 532 P.2d

691, we held to the long established principle in condemnation

cases that it is an unconstitutional taking to allow the condemnor

to acquire a greater interest or estate in the condemned property

than the public use requires. We stated:

It necessarily follows from the principle that property

cannot constitutionally 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. r

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 oblised to pay for more

than it needs. (Empahsis added.)

Silver Bow Countv, 532 P.2d at 693. Necessity contemplates that

which is "reasonably requisite and proper for the accomplishment of

the purpose for which it is sought under the peculiar circumstances

23
of each case." State Highway Com'n v. Crossen-Nissen Co. (1965),

145 Mont. 251, 254, 400 P.2d 283, 284.

As stated above, § 70-30-111, MCA, requires that "[blefore

property can be taken, the plaintiff must show by a preponderance

of the evidence that the public interest requires the taking based

on [a finding] . . that the takins is necessary to such use."

(Emphasis added). In its discussion of this statutory requirement,

the majority misses the point completely. This statutory

requirement does not focus on whether the use (here, the

transmission line) is necessary, but, rather, on whether the taking

(in this case an unrestricted easement versus a wire-line permit)

is necessary to such use. No one, including BN, maintains that it

is not necessary that MPC construct its transmission line. That we

gratuitously conclude that the record supports what everyone has

already conceded does not validate our erroneous application of

this statutory requirement. We have effectively merged the

requirements of subsections (1) and (2) of the statute. Now, if

the condemnor shows that the public use is lawful and that it needs

the property, that ends the inquiry; that the manner of taking

sought may not be required to obtain the use is no longer of

consequence. MPC's burden under subsection (2) of the statute was

to prove that taking by unrestricted easement was necessary to

locate, construct, operate and maintain its transmission line. The

proof was to the contrary: taking by unrestricted easement was not

necessary to such use.

On the record here, it was not "necessary" that MPC take by

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condemnation an easement on BN's property to accomplish the

location, construction, maintenance and operation of its

transmission line. That could and would have been accomplished, as

it had many, many times in the past under the offered wire-line

permit. In condemning BN's property under such circumstances, MPC

has unconstitutionally acquired a greater interest and estate in

that property than the public use requires.

While it may be more advantageous in a number of ways for MPC

to construct, maintain and operate its transmission line without

any of the restrictions imposed by BN, I find no authority for the

proposition that the condemnation statutes should be used merely to

insure that the condemnor be placed in a more favorable position

than it otherwise could through negotiation or resort to other

legal remedies. While MPC and the majority raise the specter of BN

cancelling one of its wire-line permits after the expenditure of

millions of dollars in construction costs, the record does not

reflect that has actually happened in the lengthy history that MPC

has been locating and maintaining powerlines on BN property, and I

suspect if that had been BN's pattern, MPC would have been in court

decades before this. The courts have no business in this dispute,

and the condemnation statutes have been misused. Accordingly, I

dissent from our decision on Issue I.

With respect to Issue II, the District Court found that MPC's

transmission line is a more necessary use than BN's railroad

operation and that the two uses are compatible. These two findings

are inconsistent with each other under our previous interpretations

25
of subsection (3) of 5 70-30-111, MCA. In Cocanougher v. Zeiegler

(1941), 112 Mont. 76, 112 P.2d 1058, we held that the issue of

whether one public use is "more necessary" than another public use

is not reached unless the proposed use and the pre-existing use

cannot compatibly co-exist on the same property and that the

proposed use would destroy the pre-existing use. Cocanouqher, 112

P.2d at 1060. In Montana Talc Co. v. Cyprus Mines Corp. (1987),

229 Mont. 491, 748 P.2d 444, we defined the inquiry as being

whether the proposed use would defeat or seriously interfere with

the pre-existing use. Montana Talc, 748 P.2d at 452.

On the record here it is clear that not only could MPC's and

BN's public uses co-exist without serious interference on the same

property, but that, historically, such uses have and currently do

so co-exist under the very provisions of the wire-line agreements

to which MPC now objects. Accordingly, under our case law, it was

improper for the District Court to even reach the issue of "more

necessary" use given its finding that the two uses were compatible.

Aside from the District Court's inconsistent findings, the

real problem here, however, is alluded to in the majority's

opinion. While MPC's use and BN's use of BN's property "could be

made compatible," the two uses are not now compatible under the

unrestricted easement granted by the court. Hence, we conclude

that it is necessary to send this matter back to the District Court

to put into the easement at least some of the provisions that have

been historically included in the wire-line permits so that the two

uses will be compatible. That, of course, begs the question: If

26
the two uses were compatible under the provisions included in the

wire-line permits historically utilized by the parties and are not

compatible under the unrestricted easement granted by the court,

thus necessitating at least some of the permit provisions being put

back into the easement, what exactly has the instant condemnation

accomplished? The answer to that question is simple: This

condemnation has allowed MPC to take a greater estate in EN's

property than was necessary to accomplish the use.

Again, our discussion here and under Issue I, demonstrates

that the eminent domain statutes have been misused, and prior case

law has been ignored. Accordingly, I dissent from our decision on

Issue II.

Finally, in Issue III, we come face to face with the

consequences of our decisions on Issues I and II. It is important

to reiterate that for decades MPC has successfully located,

operated and maintained its transmission lines on and over BN

property via the use of wire-line permits. There is really no

dispute that, if it had not successfully condemned BN's property,

MPC could have and would have located, operated and maintained the

transmission line involved in this case under a wire-line permit.

Reduced to its essentials, the problem is that MPC became

dissatisfied with having to live with the various restrictions and

requirements which BN imposed on the granting of its wire-line

permits, but which, nevertheless, were part and parcel of the

parties' compatible and co-existent use of BN's property for

decades. Depending on perspective, the restrictions were either

27
onerous, threatening and unfair or necessary to insure the safe and

effective operation of a high tension powerline on and over a

metal-intensive railroad.

The point to be made is that, without the intervention of the

courts, MPC and BN have successfully dealt with this situation for

years and would just as likely have continued to successfully deal

with this situation in the future if left to their own devices.

Importantly, there was no specific instance of BN wrongfully

revoking one of MPC's wire-line permits or seeking to indemnify its

own negligence at MPC's expense alleged or before the court. Had

that been the case, then MPC no doubt would have had grounds to

pursue other appropriate legal remedies through the courts.

Rather, what brought this case to court was a dispute over the

terms of a proposed contract--a wire-line permit--and speculation

about what BN might do under the contract proposed. Under such

circumstances, the condemnation statutes are not the appropriate

vehicle to resolve that dispute, and if MPC had been held to its

burden of proof under 5 70-30-111(2), MCA, no condemnation order

would have been issued. The parties would have been simply left to

work out the details of their respective operations or to seek

court intervention in the event of some actual problem with some

specific permit or incident.

Now, however, since we have upheld the District Court's

condemnation of BN's property, MPC has the right to occupy that

property without any of the restrictions that are likely necessary

to protect BN's operations and the public safety. Even we

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recognize that situation is unwise and unworkable. So to remedy

that, we have instructed the trial court to determine and order,

the terms governing the parties relationship--terms that they

should have (and would have) negotiated and written themselves via

contract if left to their own devices. Leaving aside the issue of

the value, technical and business judgments that the District Court

is going to have to make to accomplish that and the question of why

a district court has any particular expertise to determine the

rules and minutiae regulating the location, operation, maintenance,

and replacement of a high tension powerline on and over a busy

railroad, there is a more fundamental legal problem involved.

Quite simply, there is no authority in the condemnation

statutes which would allow the District Court to do what we have

now ordered it to do. At least the District Court recognized that

problem when it concluded that there was "no statutory basis or

requirement that protective conditions be set forth in the said

Order of Possession." Moreover, our reliance on § 70-30-206, MCA,

is misplaced and runs directly counter to our previous

interpretation of the limited authority of the district court under

that statute. In State Highway Commission v. Lavoie (1970), 155

Mont. 33, 466 P.2d 594, we held that while the District Court was

empowered to order the end result--i.e. the crossing itself--it was

not authorized to supervise the minutiae of the design and

construction of the facility. We stated:

However, the district court, in an excess of caution

and concern that proper access be provided, added the

additional requirement that "The plans are subject to

approval by this Court." This the district court was not

29
empowered to do. Details of engineering design and

construction are within the purview of the activities of

the Highway Commission; and, while the district court is

empowered to order a certain end result (as by here

ordering two lane access over the Houle Creek Road), the

court for rather obvious reasons is not qualified nor

staffed to supervise the design or construction of the

facility. Adequate remedies are available both to the

court and to the property owner to ensure compliance with

the court's order.

Lavoie, 466 P.2d at 599. While the majority seeks to distinguish

Lavoie, its distinction is without a meaningful difference.

Moreover, we stated in Lincoln/Lewis & Clark Cty. Sewer v.

Bossing (1985), 215 Mont. 235, 696 P.2d 989, that "[clourts

generally do not have the power to determine what public

improvements shall be constructed, where they shall be located, and

when the power of eminent domain shall be exercised."

Lincoln/Lewis, 696 P.2d at 991. if we have interpreted our eminent

domain statutes as to preclude the courts from those powers, it

follows that courts, similarly, do not have the power to condition

the condemnation order on detailed conditions as to how the parties

are to mutually utilize the condemned property.

Having lost sight of our obligation to drain the swamp, we

have, worse, thrown the trial court into the water with

instructions to subdue the alligators. Accordingly, I also

respectfully dissent from our decision on Issue III.

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