### No. 12812 INWE SUPREME COURT OF THE 

### STATE OF 

### MONTANA 19 

### 74

THE STATE OF MONTANA, ACTING BY AND THROUGH 

### THE DEPARTMENT OF HIGHWAYS OF THE STATE OF MONTANA, Plaintiff and Respondent,

CHARLES C. 

### HIGGINS and MARJORIE 

### K. HIGGINS, husband and wife, Defendants and Appellants.

Appeal from: District Court of the Eleventh Judicial District, HonorableRobert Keller, Judge presiding. Counsel of Record: 

### For Appellants: 

### Leif Erickson, Sr., argued, Helena, Montana For Respondent: 

### Daniel J. 

### Sullivan and James 

### R. Beck argued,

Helena, Montana

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### Submitted: November 21, 1974 Decided:

### JAR

## 23

## 1975Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Charles and tlarjorie Higgins appeal from a preliminary order of condemnation entered inthe district court of Lincoln County. The order determines that the use towhich the Department of Highways seeks toapply the Higgins' property 

### is a necessary public use authorized by law, and that the taking isrequired by the public interest. The action began with a complaint filedby the Department of Highways on July 26, 1972, seeking tocondemn a right-of-way through property owned by the Higgins inthe Yaak River Valley of northwestern Montana. Attached tothe complaint was a 

### resolution of the State Highway Commission which asserted: That public interest and necessity required the construction of a statehighway inLincoln County; that a highway had been planned and located ina manner most compatible with the greatestpublic good and leastprivate injury; that a portion of property owned by the Higgins was necessary for construction of that highway; and that the Department had been unable tonegotiate an agreement forpurchase of the property. The owners, Charles and Marjorie Higgins, filed an answer denying thematerial allegations of the complaint and claiming that $50,000 would be a reasonable and just compensation for the taking. A hearing was held on October 11, 1973, todetermine the "necessity" of the proposed condemnation. The Department introduced the resolution of the StateHighway Commission and then rested, relying on the presumptions arising from the resolution by virtue of the provisions of section 32-3904, R.C.M. 1947. The property owners called Higgins astheir only witness. Herelated hispresent and anticipated uses of the property and the adverse impact which the proposed condemnation and constructionwould have on those uses. Testifying asone experienced inreal estate transactions but unqualified asan engineer, he expressed a belief that the proposed highway could be constructed

more economically on the east side of the valley, across the river from his property. On cross-examination he admitted that constructing the highway on the other sideof the river would necessitate the

use of additional bridges. He expressed a personal opinion that the additional cost of constructing these bridges might be offsetby the reduction incutting and fillingarising from the 

### east side's 

### less rugged terrain. Even if the alternateroute was was most costly, he feltthe added expense/warranted by the lessened demand for private land. Most of the land on the east side of theriver 

### isowned by the federal government, while much of the land on thewest side of thevalley is privately owned. On cross-examination, he professed no knowledge of whether

or not the federal government would allow construction of this highway on its land. When the property owners rested the Department reopened itscase by callingJohn Dillon, districtranger for theYaak Ranger Districtof the Kootenai National Forest. He testified that he was opposed toconstruction of a highway on federal forest lands inthe Yaak River Valley. He had responded tothe Department's inquiries by opposing a route on the east side of the river for three reasons: First, he was opposed todedication of additional forest land for a highway when one already existed

on the west side of the river; second, the constructionwould have an adverse impact on the Yaak River "water influence zone"; and finally, a highway on the east side of the river would interferewith moose and mule deer migration patterns. Dillon also testified that his opinion had been concurred inby his immediate supervisor, but that he did not know whetherthe Department had pursued the inquiry tohigher levels within the federal bureaucracy. Under cross-examination he also admitted that the primary users of the present highway 

### were loggers, hunters, and fishermen and that the proposed highway would be used similarly. Following the hearing the preliminary order of condemnation was issued and this appeal 

### was subsequentlyperfected. Appellants here argue that 

### a highway routing over public land should be preferred toa location on private land. They contend that "necessity" has not been demonstrated until it is shown that the federal land isunavailable for construction of this highway. It isclaimed that the unavailability of forest lands here could not be established without a showing that the requests

were pursued to the higher levels of the United StatesForest Service.The Department, on the other hand, argues that theonly question presented for our consideration iswhether or not the Department acted arbitrarily or abused itsdiscretion inrouting theproposed highway on the

### west sideof the river. The Department asserts that appellants failed tomake such a showing by clear and convincing proof and therefore they cannot prevail upon appeal. The requirements which must be satisfied before private property can be condemned inMontana aredetermined by statute. The use for which the property istobe taken must be authorized by law and the takingmust be necessary tothatuse. Section 93-9905, R.C.M. 1947. Before a right-of-way can be condemned, the locationof thehighway must be made ina manner most compatible with the greatest public good and leastprivate injury. Section 93-9906, R.C.M. 1947. The resolution of the Highway Commission creates a disputable presumption that these statutoryrequirements are satisfied. Section 32-3904, R.C.M. 1947. Appellants' arguments involve two basic propositions: (1)Routing over public lands should be preferred toroutes requiring taking of private land, and (2) therecord here does not make a sufficient showing that the Stateadequately pursued the alternative of routing across national forest lands. The foundation for the firstproposition lies inthe balancing testof section 93-9906, R.C.M. 1947. Allother factorsbeing equal, it seems apparent that a routing over public lands would be compatible with the greatest public good and would surely involve the leastprivate injury. This proposition received atleast tacitrecognition in StateHighway Comm'n v. Danielsen, 146Mont. 539, 409 P.2d 443. There three potential routes were available for a proposed highway, one following an existingright-of-way. Recognizing that the existing location would require the least confiscation of private land, 

### we held that availability of public land was one factor which must be considered indetermining location. A demonstration that the Highway Commission had failed to consider this factor was there sufficient torebut the presumption generally accorded the Commission's resolution tocondemn. Nonetheless, private injury 

### isbut one of the considerations present ina condemnation. The present record contains factsrelevant toboth public good and private injury. While the route across forest lands would occasion the leastprivate injury, it would alsobe detrimental tothe public good, The route on the east sideof thevalley would necessitate the construction of more bridges, an economic consideration adverse to thepublic good. Avoidance of increased costs as an element of the public good has been recognized by thisCourt inStateex 

### rel. Livingston v. District Court, 90 Mont. 191, 300 P. 916.Similarly, damage towatershed 

### and wildlife are factors bearing on the public good and areworthy of consideration here. Given these economic and ecological factors, we cannot find clear and convincing proof that the Highway Commission abused itsdiscretion or acted arbitrarily. Aswe noted in State Highway Comm'n v. Crossen-Nissen Co., 145Mont. 251, 257, 400

" 

## * * 

## * The evidence of hardship and the fact that another feasible route, over which this highway could be built, existed did not supply the clear and convincing proof required by this court before it 

### will substitute itsjudgment for thejudgment of an agency especially qualified for making such decisions. There is a public need for this highway. It has to be built over some route. The Highway Commission is authorized and qualified to select the route, and its decision in so doing appears tobe compatible with the greatest public good and the leastprivate injury." While the factual considerations before us inCrossen-Idissen

arenot the same asthose present in the instant case, the controlling law remains the same. The resolution of the Highway Commission creates a disputable presumption that the statutory requirements for condemnation have been satisfied. Section 32-3904, R.C.M. 1947. The presumption may be controverted by other evidence. Section 93-1301-7, R.C.M. 1947. The evidentiary effect of a disputable presumption arising from the Highway Commission's resolution was clearly defined in StateHighway Comm'n v. Yost Farm Co., 142Mont. 239, 248, 384 P.2d 277, where we quoted the following rule with approval: "'A disputable presumption, says the statute, may be controverted by other evidence. It is successfully controverted when proof tothe contrary satisfactorilyovercomes it. By proof which satisfactorily overcomes it, is meant that which sustains the affirmative of the issue--a preponderance of the evidence. In thisjurisdiction civil cases aretobedecided according tothe greater weight of the evidence, and a bare preponderance infavor of the party holding the affirmative of the issue is sufficient towarrant, and should result in, a decision inhis favor. [Citing cases.] Therefore, when the evidence preponderates against a disputable presumption, it "fades away inthe face of contrary facts."'" The districtcourt, the trierof facthere, had before it the statutorypresumption buttressed by the testimony of the districtranger inwhose jurisdiction the constructionwas proposed. The sole controverting evidence was the testimony of the defendant landowner. The evidence was weighed by the district court and was found toestablish, among other things, 

## * * * that said highway referred toin the complaint has been located along a route which 

### willbe most compatible with the greatest public good and the leastprivate injury." Our review of therecord discloses substantial evidence to support that finding. Moreover, there is substantial evidence supporting the choice of theproposed route, even though a location on the federal lands might ultimately have been permitted by the federal government. The failure of the Highway Department topursue their inquiries concerning the forestroute tothe highest levels of the federal government lacks importance under these facts. However, under appropriate facts, the failure of the Highway Department toexhaustively pursue the securing of federal or other public landsmight constitute arbitrariness or abuse of discretion similar to that found inDanielsen. The preliminary order of condemnation is affirmed.

Justice

>' 3 We Concur:



### / Justice 

# 4

### Mr. Justice Wesley Castles dissenting: I

### dissent. Iwould require the condemnor to prove necessity for the taking of private land when publicly owned land is available. The condemnor should be required,under these conditions, to go further in pursuing alternate routing

on public lands. Ido not disagree with the general'statements of law applicable here, but merely say the state did not carry its burden of proof to prove necessity.

Mr. Justice John Conway Harrison: I join with Mr. JusticeWesley Castles in what he has said in his dissent.