No. 13277 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE MONTANA POWER COMPANY, a Montana 

corporation, and PUGET SOUND POWER & 

LIGHT COMPANY, 

Plaintiffs and Respondents, 

-vs - 

BOYD CHARTER and ANNE G. CHARTER, his wife; 

DREVS FARMING CORPORATION, a Montana 

corpora tion; PHYLLIS 0 ' CONNOR REES , BETTY 

o'CONNOR GREENE, JANE O'CONNOR LONG and 

GENEVIEVE O'CONNOR CARLISLE, 

Defendants and Appellants. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

For Appellants : 

Graybill, Ostrem, Warner and Crotty, Great Falls, 

Montana 

Gregory T. Warner argued, Great Falls, Montana 

For Respondents: 

Crowley, Kilbourne, Haughey, Hanson and Gallagher, 

Billings, Montana 

Thomas N. Kelley argued, Billings, Montana 

Submitted: October 20, 1976 

Decided : DEC 2 8 1976 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by defendant landowners from orders of 

preliminary condemnation and possession granted to plaintiffs by 

the district court, Yellowstone County. 

Each of the condemnation actions presented for appeal 

were initiated by plaintiffs Montana Power Company and Puget 

Sound Power & Light Company pursuant to Title 93, Chapter 99, 

Revised Codes of Montana, 1947. The purpose of the actions was 

to gain easements and right of way for construction of a 230-500 KV 

electric transmission line to serve the plaintiffs' coal-fired 

generating plants at Colstrip, Montana. Previous to filing the 

condemnation complaints in district court, plaintiffs obtained 

a certificate of "environmental compatibility and public need" 

from the State Board of Natural Resources and Conservation in 

accordance with the Montana Major Facility Siting Act, Title 70, 

Chapter 8, Revised Codes of Montana, 1947. 

Upon motion, the district court ordered consolidation 

of the three condemnation actions with a "necessity hearing" 

scheduled for July 8, 1975. At pretrial conference on that date 

the court decided it was first necessary to determine whether, under 

the present Montana law, it was proper for a court to conduct a 

1 I necessity hearingff at all with respect to a utility facility of 

the type involved. Accordingly, counsel for the parties orally 

stipulated to certain facts so this issue could be resolved. 

On December 12, 1975, the district court entered its findings 

of fact and conclusions of law wherein it determined that the 

necessity for this particular power line, its location, and land 

to be taken and the area thereof were matters controlled by the 

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Montana Major Facility Siting Act and thus within the responsibility 

of the State Board of Natural Resources ad Conservation. Holding 

that the only issues properly before it were public use and just 

compensation, the district court ruled the transmission line to 

be a public use with just compensation to be determined at a future 

time. 

Therefore, the district court entered a preliminary condemnation order on December 12, 1975. On the same day plaintiffs paid 

into court the amount of compensation claimed by defendants in 

their answers to the plaintiffs' condemnation complaints. The 

district court then entered an order granting plaintiffs possession 

and use of the lands in question. 

Defendants on December 31, 1975, moved the district court 

to stay the orders of preliminary condemnation and possession. 

The motion was denied by the district court on January 20, 1976. 

Defendants appeal from the district court's orders of 

preliminary condemnation and possession. 

On appeal defendants contend the orders of preliminary 

condemnation and possession were improper because all issues of 

preliminary condemnation for the power line were controlled by 

the eminent domain statute, section 93-9901 et seq., R.C.M. 1947, 

and thus were subject to hearing before the district court. However, 

we believe the proper disposition of this appeal is controlled 

by the course of events subsequent to the district court's denial 

of defendants' motion for a stay. 

First, by virtue of the district court's order of possession 

granted in accordance with section 93-9920, R.C.M. 1947, plaintiffs 

were entitled to "use and possess" the defendants' lands. We 

note that this right has been exercised to the point where the 

transmission towers and lines are now completed on those lands belonging to defendants. 

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Second, noting the district court's denial of the defendants' 

motion for a stay of proceedings, we find nothing in the record 

to indicate any further effort by the defendants to preserve the 

status quo pending disposition of this appeal. 

Since the very acts which defendants sought to enjoin are 

now accomplished fact, we hold the issue before this Court to be 

moot and thus not within the province of this Court. Adkins v. 

City of Livingston, 121Mont. 528, 194 P.2d 238. 

The fact that no party raised the issue of mootness on appeal 

does not alter this necessary conclusion. Fox v. Hacker, 68 Mont. 

413, 220 P. 749. Therefore, this 

u J stices. 

Hon. Jack .L. ,,Green : , District 

Judge, sitting for Justice Wesley 

Castles.