No. 94-625

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

CITY OF BOZEMAN, MONTANA,

A MUNICIPAL CORPORATION,

ACTING ON BEHALF OF THE

DEPARTMENT OF TRANSPORTATION

OF THE STATE OF MONTANA,

Plaintiffs, Respondents,

and Cross-appellants

DONALD D. VANIMAN and CECILIA R.

VANIMAN, CO-TRUSTEES of STEELHEAD

RANCHES, A TRUST,

Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellants:

Montana

Michael G. Garrity, Anacker & Garrity, Bozeman,

For Respondents:

Peter S. Lineberger, Spokane, Washington

Filed:

Submitted on Briefs: April 6, 1995

Decided: June 29, 1995
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from a decision by the Eighteenth Judicial

District Court, Gallatin County, determining that the State had

lawfully exercised its power of eminent domain, but that the

Bozeman Chamber of Commerce could not be part of the planned

highway interchange building complex. We affirm.

We consider the following issue:

Did the District Court err in finding that the State had

lawfully exercised its power of eminent domain but that the Bozeman

Chamber of Commerce could not be part of the planned highway

interchange building complex?

The City of Bozeman (City), acting on behalf of the Montana

State Department of Transportation (State), sought to have an 8.72

acre piece of property owned by Donald and Cecilia Vaniman (the

Vanimans) condemned for the purpose of creating an off-ramp and

rest area/visitors center for the North 19th Avenue Interchange at

Interstate Highway 90. In its complaint for condemnation, the

State did not mention that part of the visitor center was a planned

area for the Bozeman Chamber of Commerce. The Chamber is a private

non-profit organization. Despite their agreement with the stated

purposes of the condemnation, the Vanimans objected to the

Chamber's presence.

On July 2, 1993, the District Court issued a Preliminary

Condemnation order stating that the issue of the Chamber's presence

within the 8.72 condemned acres was not before it. This order was

appealed and in the City of Bozeman v. Vaniman (1994), 264 Mont.

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76, 869 P.2d 790, we stated that the District Court's failure to

consider the Chamber's presence within the project denied the

plaintiffs due process and prevented us from considering the

appeal. We remanded the action for the court's consideration of

the Chamber‘s presence and for a determination of whether the

Chamber's presence was "de minimus."

Following a hearing on May 12, 1994, the District Court

ordered that the wing of the building in which the Chamber was to

reside should be severed from the plans and that the Chamber have

no part in locating its private corporate offices on any section of

the condemned property. The evidence presented at the hearing lead

the court to determine that the Chamber's offices would amount to

40% of the building set to be built at the interchange area. Such

a presence, the court found was not de minimus. The Vanimans have

appealed the court's decision.

Standard of Review

The court's findings on remand will be considered as to

whether they are clearly erroneous and the court's conclusions of

law will be considered as to whether they are correct. Vaniman,

264 Mont. at 80, 869 P.2d at 793. Clearly erroneous is defined by

whether a finding is supported by substantial evidence, whether the

court correctly apprehended the evidence, or, despite the

satisfaction of the first two elements, whether we are of the firm

conviction that a mistake has been made. Vaniman, 264 Mont. at 80,

869 P.2d at 793.

Did the District Court err in finding that the State had

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lawfully exercised its power of eminent domain but that the Boseman

Chamber of Commerce could not be part of the planned highway

interchange building complex?

The Vanimans argue that the District Court should have

dismissed the condemnation action instead of modifying the State's

design by severing the Chamber's wing of the visitors' center. The

Vanimans contend that the court acted outside its jurisdiction by

modifying the design approved by the State. According to the

Vanimans, the government cannot take a property for combined

public/private use. The Vanimans argue that because the Chamber's

presence is not de minimus the entire taking is unlawful and the

initial condemnation order should be dismissed. The Vaniman's

assert that the only question that the District Court had to answer

was whether the Chamber's role was "de minimus."

The City argues that this Court's first opinion was not as

narrow as the Vanimans have stated. The City contends that on

remand the District Court had to determine the appropriate balance

of public versus private use within the interchange project.

Further, the City argues that the court did not engage in project

redesigning--it did not consider specific aspects of the design

project and then attempt to change these aspects. The City also

argues that it was the Vanimans themselves who introduced evidence

regarding the design of the building and have, therefore, waived

any right to object to the court's consideration of that design.

This Court remanded the action back to District Court because

the court had not considered any evidence of the Chamber's

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involvement with the case. Vaniman, 264 Mont. at 83, 869 P.2d at

794. The court was directed to consider further proceedings

consistent with our opinion. That opinion dealt with more than the

de minimus rule.

De Minimus

When a legal matter is termed "de minimus," it means that

courts need not consider it because the matter is "trifling" or too

minor to be considered in the interest of judicial economy.

Hopkins v. Kitts (1908), 37 Mont. 26, 94 P. 201; Section l-3-224,

MCA. By telling the District Court that it had to make this

determination, we instructed the District Court to consider the

Chamber's involvement in the case, which the court had not done,

and then to make a determination after considering the facts before

it as to whether the matter was substantial enough to be considered

in any court of law. A designation that an issue is not de minimus

means that it is a matter of consequence and that the issue should

be considered by the court.

The District Court found that the Chamber would occupy 40% of

the building as currently planned. The court also found that the

Chamber said that it would pay $200,000 for its part of the

building. However, the facts indicate that the Chamber's portion

of the building would cost twice that amount. The facts also

indicate that the federal government denied payment for any portion

of the Chamber's offices. That leaves approximately $200,000 of

the Chamber's offices unfunded. Therefore, the District Court was

not clearly erroneous by finding that the Chamber's involvement in

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the project was not de minimus and that it should consider the

effect that the Chamber, a prrvate corporation, would have on an

otherwise public project

Private v. Public Use

The District Court recognized that it was required to make

more than the de minimus ruling. The court understood that our

remand without a ruling meant that the substantive issues involved

in an eminent domain case were still subject to appeal if the issue

of the Chamber's presence was not de minimus. The court stated:

On March 1, 1994, the Montana Supreme Court remanded the

case to this Court . requiring that the Court

consider the evidence of the Chamber's involvement in the

project when determining whether the Plaintiffs validly

exercised their eminent domain power over the Vaniman's

property, and I' . to determine whether the Chamber's

[Bozeman Area Chamber of Commerce] involvement is de

minimus." . . . A de minimus inquiry in this case, does

not involve itself with "incidental private benefit"

which arises where a lawful taking of private property by

condemnation indirectly yields an incidental private

benefit, but gets directly to the validity of the Bozeman

Chamber of Commerce's proposed direct "participation" by

privately using part of the property being condemned.

Consequently, this Court construes the specific

directions in the Supreme Court's Opinion as holding that

this Court must specifically rule on whether the

Chamber's "participation" (even though not fixed by an

executed contract) impacts the validity of the entire

eminent domain proceeding, before it issues a Preliminary

Condemnation Order.

1n its September, 1994, Memorandum and Order following remand,

the court determined that the condemnation of the 8.72 acres of the

Vaniman property was necessary and for a public purpose and,

therefore, appropriate, but that the Chamber's involvement in the

project was not appropriate and must be excised because it

constituted a "private" and not a public use. The court then

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ordered that the Chamber could no longer be part of the project.

According to the Vanimans, the court's action of severing the

Chamber's offices from the visitor center plans was beyond the

court's jurisdiction. While the Vanimans characterize this action

on the part of the court as a "redesigning" of the visitor center,

such is not the case. The court specifically stated that:

FOF 11. The current architectural development schematic

drawings of the information/visitor center, on which many

of Defendant's objections are based, were prepared in

April, 1993. These schematic drawings represent early

preconstruction designs which can readily be, and often

are, changed before any construction occurs. Though such

schematic drawings indicate that the Chamber's private

corporate offices are a part of the information/visitor

center building, no bids have been let on the

construction of the rest area and information/visitor

center, and no work whatsoever has commenced on this

schematically designed building.

FOF 14,"Schematic drawings are those usually prepared

when only about 15% of project completion is reached.

Here, no work whatsoever has begun or is compl,eted

regarding the proposed building's construction. Such

"schematic" drawings are not now, and never were, a part

of the State's Condemnation Order of March 24, 1993, nor

a part of Plaintiffs Complaint for Condemnation in this

action.

Thus, it is clear that the court was aware that the plans from

which it "severed" the Chamber's offices were early plans and that

later plans would follow. We interpret the court's severance of

the Chamber's offices, not as a redesigning of the building--which

would be a permanent and final change--but an indication that the

Chamber's offices must not appear in future plans for the building.

The record substantiates the court's findings. Testimony from

the hearing on remand indicates that all connected with the project

knew that the plans introduced into evidence were only preliminary

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plans and that other final plans would follow. Therefore,

substantial evidence supports the court's findings. Further, the

court correctly apprehended the evidence and we are not left with

a firm conviction that an error has been made. The court was not,

therefore, clearly erroneous.

The Vanimans argue that legally the court could not modify

plans that had already been approved by the State but that the

court must negate the entire condemnation because the State had in

essence condemned a property for private use. The court's legal

determination to sever the Chamber's offices was an outgrowth of

its determination that the Chamber was a private organization and

that its participation in the visitors' center built on land that

had been taken by eminent domain was inappropriate.

Our statutes declare that in order for eminent domain to be

appropriate, the land taken must be put to a "public use." Section

70-30-101, MCA. The District Court determined that the use of the

Vaniman property for a highway interchange and a visitor center was

expressly provided for in our statutory system. We stated as much

in Vaniman I. Vaniman, 264 Mont. at 80, 869 P.2d at 793. There is

no question that the proposed project for Interchange 19 is a

public use according to our statutory list of appropriate public

uses in 5 60-4-103, MCA. The pivotal concern is whether the

Chamber's presence within a building on land condemned for public

use requires that the entire eminent domain action be negated.

The court concluded that the Chamber's portion of the

visitors' center was a private use and was constitutionally

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offensive, but that the rest of the project could stand. The court

concluded that the Chamber had no authority to participate in an

otherwise public project and that 'l[t]he Chamber shall have no

right to locate or operate its private corporate business on any

portion of the property acquired from Defendants in this eminent

domain proceeding." The court then granted the request for the

preliminary condemnation order of the 8.72 acres for the purpose of

an interchange and visitor center.

We have stated that: "It is well established that a

condemning authority can not acquire a greater interest or estate

in the condemned property than the public use requires." Silver

Bow County v. Hafer (1975), 166 Mont. 330, 332, 532 P.2d 691.

Here, the record shows that whether the Chamber is included in the

plans or not, the same amount of land will be taken. This fact is

not disputed by the Vanimans nor any official connected to the

governmental entities involved. Therefore, the condemnation order

is appropriate for 8.72 acres so long as the purpose for which the

property condemned is appropriate.

It is also not disputed that the uses of a highway interchange

and visitors center constitute a "public use" required by our

eminent domain statute. Sections 70-30-101, MCA, and 60-4-103,

MCA. The record shows that the original condemnation complaint

filed by the State mentions only the use of the interchange and the

visitors' center/information center. Thus, the complaint was

properly granted because the use was public, the State had the

right to eminent domain, and the proper procedures were followed.

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HOWeVer, the Chamber is a private corporation. Whether its

involvement began before or after the issuance of the complaint is

of little concern because there is no question from the record that

at some point the Chamber offices became a substantial part of the

building to be erected on the condemned property. We pointed this

out to the court and on remand the District Court determined, based

upon the testimony at the May 12, 1994, hearing, that the Chamber's

portion of the visitors' center amounted to about 40% of the area

anticipated for the building.

The State provided adequate evidence that the project was

appropriate; it then became the Vaniman's burden to prove by clear

and convincing proof that the taking by the government was

excessive or arbitrary. Lincoln/Lewis & Clark Co. Sewer v. Bossing

(1985), 215 Mont. 235, 696 P.2d 989. The Vanimans attempted to

prove the State's actions as arbitrary or excessive by submitting

evidence of the size and nature of the Chamber's portion of the

building. Yet, there is nothing whatsoever in the record to

disprove the State's contention that the taking of the 8.72 acres

for an interchange and visitor center is appropriate or that the

taking would be less if the Chamber were not part of the project.

The Chamber was not mentioned in the original complaint for

condemnation. The purpose in the complaint was public, to that all

agree.

The Chamber's participation is a collateral concern and does

not change the public use designation of the project as proved to

the court. The Chamber is a private business. It is a fundamental

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law of eminent domain that private property may not be taken

without an owner' s consent for the private use of another.

McTaggart v. Montana Power Co. (1979), 184 Mont. 329, 602 P.2d 992.

Further, both the United States and the Montana Constitutions

prohibit a taking by the State for merely private use. U.S.

const . , amend. XIV; Art. II, Set 17, Mont.Const. (1972)

In certain cases, a public use and a private use can be

commingled without a finding of unconstitutionality. J. Sackman &

P. Rohan, 2A Nichols Law of Eminent Domain, The Public Use, § 7.08

(1990). In considering whether the private nature of the Chamber's

business is appropriately allowed as a part of the public purposes

of the visitors' center/information center we consider the

following:

If the use for which land is taken by eminent domain is

public, the taking is not invalid merely because an

incidental benefit will enure to private individuals.

. The use for which the property is acquired by

eminent domain must ordinarily be the use of the

condemnor. . . . [An] ulterior public advantage may

justify a comparatively insignificant taking of private

property for what, in its immediate purpose, is a private

use. Moreover, where, despite the commingling of private

and public uses, the taking will aid in the establishment

of a public project, the courts are disposed to ignore

the private element as purely incidental . . . .

J. Sackman & P. Rohan, 2A Nichols Law of Eminent Domain, Public

Use, § 7.08 (1990). In analyzing when a private use is appropriate

within an eminent domain taking, we adopt this analysis and compare

the Chamber's use by this three-tiered standard:

1 . Will the public use create an "incidental" benefit

to private individuals?

2 . IS the overall use that of the condemnor?

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3 . Is the private use insignificant?

An analysis of all three elements shows that the Chamber's

presence is inappropriate within this public project. First, the

Chamber's corporate offices are not incidental to the project. In

other words, its presence is not a necessary derivative of the

visitor center and highway interchange. Any benefit that the

Chamber derives from having its offices located at this Interchange

is in no way connected to the public use of the highway or the rest

area/visitor center. The Chamber's presence may be "convenient"

for the Chamber as well as the State, but that is not the test.

The test is whether any benefit to the Chamber comes as a necessary

correlary to the public purpose. The record indicates no such

benefit.

Second, the use for which the land is taken must be that of

the State. If the Chamber occupies a major portion of the visitor

center, then the use is not that of the State. Finally, the record

indicates that the Chamber's presence is not insignificant; it will

occupy a major part of the visitor center. Therefore, we conclude

that the Chamber's private presence within this otherwise public

project cannot stand as the Chamber cannot meet the elements of the

above test in any way.

In other fact situations, such a determination could mean that

the entire condemnation would fail or that the taking would have to

be limited. Under the facts of this case, the loss of the

Chamber's participation does not limit the taking. All agree that

the same amount of land must be taken regardless of the Chamber's

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presence. Further, the complaint and order of possession do not

mention the Chamber and the plans which include the Chamber offices

are only preliminary to the project.

We conclude that the District Court correctly granted the

preliminary condemnation order because the Chamber's presence was

not a part of the request for condemnation. We hold that the court

did not err in finding that the State had lawfully exercised its

power of eminent domain but that the Bozeman Chamber of Commerce

could not be part of the planned highway interchange building

complex.

Affirmed.

ief Justrce

n

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Justice James C. Nelson specially concurs.

While I do not necessarily agree with all that is stated in

our opinion, under the circumstances of this case, I conclude that

we have reached the appropriate result. While the Vanimans contend

on this appeal that the District Court exceeded our remand order in

Vaniman I, by excising the Chamber's participation in, and its

portion of the building from, the project, nevertheless, I conclude

that appellants are in no position to complain.

As we pointed out in our opinion in Vaniman I, appellant

Cecilia Vaniman conceded at the outset that the State had the

authority to condemn the entire 8.712 acre parcel of property for

the purpose of constructing a rest area and visitor center; that

even if the Chamber were not part of the project, the entire

acreage would nevertheless be condemned; and that she had no

objection to the project but simply to the Chamber's involvement in

it. Vaniman, 869 P.2d at 793.

Accordingly, I specially concur.

Justice Karla M. Gray concurs in oncurrence.

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