No. 13277 INTHE 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 corporation; 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 : 

# DEC28 

### 1976Mr. 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 toplaintiffsby the district court, Yellowstone County. Each of the condemnation actions presented for appeal
were initiatedby plaintiffs Montana Power Company and Puget Sound Power & Light Company pursuant toTitle 93, Chapter 99, Revised Codes of Montana, 1947. The purpose of the actions was togain easements and right of way for construction of a 230-500 

### KV electric transmission line to serve the plaintiffs' coal-fired generating plants atColstrip, Montana. Previous to filing the condemnation complaints indistrict court, plaintiffs obtained
a certificateof "environmental compatibility and public need" from the StateBoard of Natural Resources and Conservation in accordance with theMontana Major Facility SitingAct, Title70, Chapter 

### 8, Revised Codes of Montana, 1947. Upon motion, the districtcourt ordered consolidation of the three condemnation actions with a "necessity hearing" scheduled forJuly 

### 8, 1975. Atpretrial conference on that date the court decided itwas firstnecessary todetermine whether, under the present Montana law, it was proper for a court to conduct a

1Inecessity hearingffatallwith respect toa 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 forthis particular power line, 

### its location, and land tobe taken and the area thereof were matters controlled by the -2-

### Montana Major Facility Siting Act and thus within the responsibility of the State Board of Natural Resources adConservation. 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 usewith 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 condemnationand 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 possessionwere improper because all issues of preliminary condemnation for the power linewere controlled by the eminent domain statute, section 93-9901et seq., R.C.M. 1947, and thuswere 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 accordancewith 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 landsbelonging to defendants. -3-Second, noting the district court's denial of the defendants' motion for a stay of proceedings, we findnothing inthe record to indicate any further effortby the defendants to preserve the status quo pending disposition of this appeal. Since the very actswhich defendants sought to enjoin are
now accomplished fact, we hold the issuebefore this Court tobe moot and thus not within the province of this Court. Adkins v. City of Livingston, 121Mont. 528, 194 P.2d 238. The fact thatno party raised the issue of mootness on appeal does not alter thisnecessary conclusion. Fox v. Hacker, 68Mont. 

### 413, 220 P. 749. Therefore, this

J stices. 

# u

Hon. Jack.L.,,Green :

## ,District Judge, sitting for JusticeWesley Castles.