No. 84-144 IN THE SUPREME COURT OF THE STATEOF MONTANA 1985

LINCOLN/LEWIS & CLARK COUNTY SEWER DISTRICTAT LINCOLN,Plaintiff and Appellant,

ROBERT F. BOSSING, JEAN G. BOSSING, et al., Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District, Inand for the County of Lewis & Clark, The Honorable

COUNSEL OF RECORD:

For Appellant: Jackson,Murdo & Grant;RobertM. 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: 

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ClerkMr. 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 defendantsrproperties. We affirm. The plaintiff and appellant, Lincoln/Lewis & Clark County Sewer District (hereinafter "District")was incorporated in 1.980following avote inwhich approximately seventy percent of those voting approved the formation of the District. The District was forme6 for the purpose ofdesigning, 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 theDistrict. 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 ofproperty within the District whose owners have refused to gra.nt easements. Two prior actions have been maintained regarding this District. In Lewis & Clark County causeNo. 48930,District Judge Gordon Bennett decided in favor of the District on the valid.ityof the creation and the existence of the District. InLewis & Clark County causeNo. 49137,District JudgeHenry Loble determined that the project was in thepublic interest,that there was a public need and necessity for land for the purpose of constructing, laying and maintaining the collection lines,and that theDistrict Courtwas entitled to

apreliminary condemnationorder. No appealwas takenby 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 liquidwasteswith 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 ofuse the systemreceives. County health regulations requireat least four feet of unsaturated soil below the drainfield for the sewage to receive the necessary treatmentbefore reaching the groundwater. The drainfield is usually one to three feet below the surface. These regulationsarebased on generally recognized nation-wide standards designed to prevent outbreaks of disease and protect groundwaterquality. The groundwater elevation in Lincoln generally ranges from two to six feet or possiblymore,depending on the time ofyear ameasurement is made. The average is about four feet from the surface. The evidencepresented at trialdid not show that the defendants' septic systems were defectiveor that they caused any groundwater contamination, seepage or other present problems. There was no evidence of any foreseeable risk of contaminationposed 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 thatburden? (3)Was there necessity forutility 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)

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are also without power to interfere with a board's discretionary action when exercising eminent domainpower 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, fraudulentorbad 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. InMontana the legislature has also established a court's power in a preliminary condemnation action in section 70-30-206,MCA, to includedetermining whether the use forwhich 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 usepursuant 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),153Mont. 390, 397, 457P.2d 769, 774. Prior cases,alongwith 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 ofdefendants' property, those findings arewithin the trial court's scope of authority and can be affirmed. The trial courtmade 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 shouldersof one seeking to show that the takinghas been excessive or arbitrary." Crossen-Nissen, 400 P.2d at 285, citing Nichols on Eminent Domain, S4.11(2). Where the issue is 1-ocationof the use the choice of the condemnor isgiven great weight andwill notbe overturned except on clear and convincing proof that the decision was excessive or arbitrary. Bokma, 457 P.2d at 775 and Scharav. 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 topublic use in itsprayer for relief and.produced

no evidence whatsoever at thehearing to establishnecessity. This Court sustained a finding of no necessity under the statutes since the only evidenceproduced at trialwas to the effect thatno 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 ofHelena, 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.idnot show that the city had a reasonably foreseeable ability to complete the project for which the property was intended. DeWolf summarized who carries theburden in an eminent domain proceedingby stating that: "[tlhe burden ofdemonstrating necessity rests upon the condemnor who must establish a prima facie case to justify the taking. 

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# ." 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. Oncesufficient 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 considerationof 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 condemnorhas 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 itmust be indispensable to theproposed 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, 457P.2d at 774; and others. Here the trial court found that defendantst properties were not necessary to accomplish the purpose ofprotecting 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 ispresent or reasonably foreseeable. This is similar to the situation that confronted the Court in DeWolf, in that the properties at issuewill 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 findingsof the trial cou We therefore affirm the orderof the t

We concur:,-!'