No. 84-144 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

LINCOLN/LEWIS & CLARK COUNTY SEWER 

DISTRICT AT LINCOLN, 

Plaintiff and Appellant, 

ROBERT F. BOSSING, JEAN G. BOSSING, 

et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable 

COUNSEL OF RECORD: 

For Appellant: 

Jackson, Murdo & Grant; Robert M. Murdo, Helena, 

Montana 

For Respondents: 

J. C. Weingartner, Helena, Montana 

Douglas Allen, Great Falls, Montana 

Michael J. Rieley, Helena, Montana 

Paul Keller, Helena, Montana 

Chadwick Smith, Helena, Montana 

Submitted on Briefs: Nov. 29, 1984 

Decided: March 14, 1985 

Filed: MAti 1 <a 1985 

t' 

& *,d-k 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The plaintiff, Lincoln/Lewis & Clark County Sewer 

District, appeals the judgment of the District Court of the 

First Judicial District, Lewis & Clark County, finding that 

plaintiff was not entitled to a preliminary condemnation 

order for utility easements in defendantsr properties. We 

affirm. 

The plaintiff and appellant, Lincoln/Lewis & Clark 

County Sewer District (hereinafter "District") was incorporated in 1.980 following a vote in which approximately seventy 

percent of those voting approved the formation of the District. The District was forme6 for the purpose of designing, 

constructing and maintaining a new central sewer system for 

the unincorporated town of Lincoln, Montana. Title 7, Chapter 1.3, parts 22 and 23, MCA, governs the District. 

The District instituted this action to acquire easements in defendants' properties in order to construct and 

maintain septic tanks and service lines running from the 

tanks to collection mains which have already been installed. 

Easements from over 220 of the landowners have been acquired 

through negotiations and agreements. This eminent domain 

action involves approximately twenty-five parcels of property 

within the District whose owners have refused to gra.nt 

easements. 

Two prior actions have been maintained regarding this 

District. In Lewis & Clark County cause No. 48930, District 

Judge Gordon Bennett decided in favor of the District on the 

valid.ity of the creation and the existence of the District. 

In Lewis & Clark County cause No. 49137, District Judge Henry 

Loble determined that the project was in the public interest, 
that there was a public need and necessity for land for the 

purpose of constructing, laying and maintaining the 

collection lines, and that the District Court was entitled to 

a preliminary condemnation order. No appeal was taken by any 

defendants in either action. 

The current sewage disposal needs of the community are 

met by the use of individually owned and constructed drainage 

systems. The most common type is a septic tank in which 

solid wastes are separated from liquid wastes with the solid 

wastes remaining in the tank. The liquid wastes are then 

piped into underground drainfields and treated by a 

"leaching" process where they pass through the soil 

surrounding the drain field. The solid wastes remain in the 

tank and must be removed from time to time depending on the 

amount of use the system receives. 

County health regulations require at least four feet of 

unsaturated soil below the drainfield for the sewage to 

receive the necessary treatment before reaching the groundwater. The drainfield is usually one to three feet below the 

surface. These regulations are based on generally recognized 

nation-wide standards designed to prevent outbreaks of disease and protect groundwater quality. The groundwater elevation in Lincoln generally ranges from two to six feet or 

possibly more, depending on the time of year a measurement is 

made. The average is about four feet from the surface. The 

evidence presented at trial did not show that the defendants' 

septic systems were defective or that they caused any groundwater contamination, seepage or other present problems. 

There was no evidence of any foreseeable risk of contamination posed by the defendants' systems. 
The issues presented for review are: 

(1.) What is the scope of authority of a trial court's 

review in a condemnation action and did the trial court 

exceed that authority? 

(2) What is the burden of proof in a condemnation 

action and who carries that burden? 

(3) Was there necessity for utility easements in defendants' properties under these circumstances? 

Courts 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. These are exclusively within the power of the 

legislature. Nichols on Eminent Domain, $4.11 (1) . Courts 

are also without power to interfere with a board's 

discretionary action when exercising eminent domain power on 

the sole basis that the action shows poor judgment or a lack 

of wisdom. State Highway Commission v. Crossen-Nissen Co. 

(1965), 145 Mont. 251, 254, 400 P. 2d 283, 285, citing State 

ex. rel. State Highway Comm'n. v. District Court (1938), 107 

Mont. 126, 130, 81 P.2d 347, 349. 

Where there is an abuse of discretion, or arbitrary, 

capricious, fraudulent or bad faith action in the exercise of 

eminent domain power, however, there is a call for the 

protection of the courts. Nichols on Eminent Domain, 

S4.11-(2) and Crossen-Nissen, 400 P.2d at 285. In Montana the 

legislature has also established a court's power in a 

preliminary condemnation action in section 70-30-206, MCA, to 

include determining whether the use for which the property is 

sought is a public use, determining whether the public 

interests require the taking and determining that the use is 

authorized by law and the taking is necessary to such use 
pursuant to section 70-30-111, MCA. This Court has 

interpreted those statutes as requiring a district court to 

find "the proposed taking is necessary to the public use 

under the circumstances of the individual case" before 

ordering condemnation. Montana Power Company v. Bokma 

(1969), 153 Mont. 390, 397, 457 P.2d 769, 774. 

Prior cases, along with the statutes mentioned, clearly 

reflect that the trial judge has the power to determine 

necessity and make findings on whether the public interest 

requires the taking in an eminent domain proceeding. State 

Highway Commission v. Yost Farm Company (1963), 142 Mont. 

239, 244, 384 P.2d 277, 279. Thus, to the extent the trial 

judge's findings go to a determination of the necessity of a 

taking of defendants' property, those findings are within the 

trial court's scope of authority and can be affirmed. 

The trial court made two findings that are outside its 

scope of authority. Those findings are that " [tlhere is no 

showing of need for a $2.6 Million Dollar sewer system in 

Lincoln" and " [tlhat the public interest does not require an 

elaborate sewer system as proposed." The two prior District 

Court actions had already made these determinations. In 

addition, the issues before this Court involved only the 

necessity of taking the particular property of these few 

defendants for septic tanks and connecting lines. Since 

these two findings exceeded the trial court's authority they 

are set aside. 

The burden of proof in a condemnation action "rests 

upon the shoulders of one seeking to show that the taking has 

been excessive or arbitrary." Crossen-Nissen, 400 P.2d at 

285, citing Nichols on Eminent Domain, S4.11(2). Where the 

issue is 1-ocation of the use the choice of the condemnor is 
given great weight and will not be overturned except on clear 

and convincing proof that the decision was excessive or 

arbitrary. Bokma, 457 P.2d at 775 and Schara v. Anaconda Co. 

(1980), 187 Mont. 377, 386, 610 P.2d 132, 137, cert. denied, 

449 U.S. 920. 

The condemnor, however, must initially produce sufficient evidence to establish facts indicating the taking is 

necessary. This is illustrated in Yost, 384 P.2d 277, where 

the Highway Commission merely alleged that the taking was 

necessary to public use in its prayer for relief and. produced 

no evidence whatsoever at the hearing to establish necessity. 

This Court sustained a finding of no necessity under the 

statutes since the only evidence produced at trial was to the 

effect that no necessity for taking existed and that the road 

construction was not in the public interest. Yost, 384 P.2d 

at 282. Another illustration comes in City of Helena v. 

DeWolf (1973), 162 Mont. 57, 508 P.2d 122, where the 

condemnor, the City of Helena, introduced evidence to support 

the taking of the defendants1 property. However, the 

evidence was not sufficient to support the district court's 

finding of necessity because it d.id not show that the city 

had a reasonably foreseeable ability to complete the project 

for which the property was intended. DeWolf summarized who 

carries the burden in an eminent domain proceeding by stating 

that: "[tlhe burden of demonstrating necessity rests upon the 

condemnor who must establish a prima facie case to justify 

the taking. . . " 508 P.2d at 129. 

Although at first glance these cases appear inconsistent with the cases cited above, they are reconcilable. 

DeWolf and Yost are both concerned with the condemnor's 

production of evidence at the outset of a proceeding. Once 
sufficient evidence to establish necessity has been 

introduced, the burden shifts to the one who opposes the 

taking to show by clear and convincing proof that the 

condemnor's action was excessive or arbitrary. For example, 

where the location of an improvement is chosen based on the 

expertise and detailed consideration of the condemnor and the 

evidence is introduced at the hearing, the choice may be 

overturned if the opposing party shows the condemnor failed 

to consider least private injury between routes equal in 

terms of public good. Bokma, 457 P.2d at 775, citing State 

Highway Corn.. v. Da.nielsen, (1965) 146 Mont. 539, 409 P.2d 

In the present case, the trial court found that the 

District, the condemnor, had not shown necessity for the 

taking of defendants' properties because they failed to 

demonstrate a reasonable present need or even need in the 

reasonably foreseeable future to connect defendants to the 

sewer. This is similar to DeWolf, in that the condemnor has 

not carried the burden of introducing sufficient evidence of 

necessity. The second part of the inquiry, whether the 

defendant can show the taking, even though necessary, is 

arbitrary or excessive, is not reached in the case at bar. 

"The requirement that the condemnor must 

show necessity for the property taken 

does not mean that it must be indispensable to the proposed project. Rather the 

word 'necessaryt. . . means that the 

particular property taken be reasonably 

requisite and proper for the accomplishment of the purpose for which it is 

souqht under the peculiar circumstances 

of each case." crossen-c is sen, 400 P.2d 

at 284. 

See also DeWolf, 508 P.2d at 129; Bokma, 457 P.2d at 774; and 

others. Here the trial court found that defendantst 

properties were not necessary to accomplish the purpose of 
protecting the groundwater from coiltamination. Their 

properties would be "reasonably requisite and proper for the 

accomplishment of the purpose" only at the time the 

likelihood of pollution from their septic systems is present 

or reasonably foreseeable. This is similar to the situation 

that confronted the Court in DeWolf, in that the properties 

at issue will be required (i.e. necessity can be shown) only 

on the happening of a possible and unpredictable future 

event. This contingency is not sufficient to establish a 

reasonable present or reasonably foreseeable future need. as 

correctly noted in the findings of the trial cou 

We therefore affirm the order of the t 

We concur: ,-!'