No. 12812 

IN WE 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, 

Plaint iff and Respondent, 

CHARLES C. HIGGINS and MARJORIE K. 

HIGGINS, husband and wife, 

Defendants and Appellants. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert 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 

-- - 

Submitted: November 21, 1974 

Decided : JAR 2 3 1975 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Charles and tlarjorie Higgins appeal from a preliminary 

order of condemnation entered in the district court of Lincoln 

County. The order determines that the use to which the Department 

of Highways seeks to apply the Higgins' property is a necessary 

public use authorized by law, and that the taking is required by 

the public interest. 

The action began with a complaint filed by the Department 

of Highways on July 26, 1972, seeking to condemn a right-of-way 

through property owned by the Higgins in the Yaak River Valley 

of northwestern Montana. Attached to the complaint was a resolution of the State Highway Commission which asserted: That 

public interest and necessity required the construction of a 

state highway in Lincoln County; that a highway had been planned 

and located in a manner most compatible with the greatest public 

good and least private injury; that a portion of property owned 

by the Higgins was necessary for construction of that highway; 

and that the Department had been unable to negotiate an agreement for purchase of the property. The owners, Charles and 

Marjorie Higgins, filed an answer denying the material 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, to determine 

the "necessity" of the proposed condemnation. The Department introduced the resolution of the State Highway 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 as their only witness. 

He related his present and anticipated uses of the property and 

the adverse impact which the proposed condemnation and construction would have on those uses. Testifying as one experienced in 
real estate transactions but unqualified as an 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 side of the river would necessitate the 

use of additional bridges. He expressed a personal opinion that 

the additional cost of constructing these bridges might be offset by the reduction in cutting and filling arising from the 

east side's less rugged terrain. Even if the alternate route 

wa s 

was most costly, he felt the added expense/warranted by the 

lessened demand for private land. Most of the land on the east 

side of the river is owned by the federal government, while 

much of the land on the west side of the valley 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 

its case by calling John Dillon, district ranger for the Yaak 

Ranger District of the Kootenai National Forest. He testified 

that he was opposed to construction of a highway on federal 

forest lands in the Yaak River Valley. He had responded to the 

Department's inquiries by opposing a route on the east side of 

the river for three reasons: First, he was opposed to dedication 

of additional forest land for a highway when one already existed 

on the west side of the river; second, the construction would 

have an adverse impact on the Yaak River "water influence zone"; 

and finally, a highway on the east side of the river would interfere with moose and mule deer migration patterns. 

Dillon also testified that his opinion had been concurred 

in by his immediate supervisor, but that he did not know whether 
the Department had pursued the inquiry to higher 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 subsequently perfected. 

Appellants here argue that a highway routing over public land 

should be preferred to a location on private land. They contend 

that "necessity" has not been demonstrated until it is shown 

that the federal land is unavailable for construction of this 

highway. It is claimed 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 States Forest 

Service. 

The Department, on the other hand, argues that the only 

question presented for our consideration is whether or not the 

Department acted arbitrarily or abused its discretion in routing 

the proposed highway on the west side of the river. The Department asserts that appellants failed to make 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 in Montana are determined by statute. 

The use for which the property is to be taken must be authorized 

by law and the taking must be necessary to that use. Section 

93-9905, R.C.M. 1947. Before a right-of-way can be condemned, 

the location of the highway must be made in a manner most compatible with the greatest public good and least private injury. 

Section 93-9906, R.C.M. 1947. The resolution of the Highway 

Commission creates a disputable presumption that these statutory 
requirements are satisfied. Section 32-3904, R.C.M. 1947. 

Appellants' arguments involve two basic propositions: 

(1) Routing over public lands should be preferred to routes 

requiring taking of private land, and (2) the record here does 

not make a sufficient showing that the State adequately pursued 

the alternative of routing across national forest lands. 

The foundation for the first proposition lies in the 

balancing test of section 93-9906, R.C.M. 1947. All other factors being equal, it seems apparent that a routing over public 

lands would be compatible with the greatest public good and 

would surely involve the least private injury. This proposition 

received at least tacit recognition in State Highway Comm'n v. 

Danielsen, 146 Mont. 539, 409 P.2d 443. There three potential 

routes were available for a proposed highway, one following an 

existing right-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 in determining location. A demonstration that the 

Highway Commission had failed to consider this factor was there 

sufficient to rebut the presumption generally accorded the 

Commission's resolution to condemn. 

Nonetheless, private injury is but one of the considerations present in a condemnation. The present record contains 

facts relevant to both public good and private injury. While 

the route across forest lands would occasion the least private 

injury, it would also be detrimental to the public good, The 

route on the east side of the valley would necessitate the construction of more bridges, an economic consideration adverse to 

the public good. Avoidance of increased costs as an element of 

the public good has been recognized by this Court in State ex 

rel. Livingston v. District Court, 90 Mont. 191, 300 P. 916. 
Similarly, damage to watershed and wildlife are factors 

bearing on the public good and are worthy of consideration 

here. Given these economic and ecological factors, we cannot 

find clear and convincing proof that the Highway Commission 

abused its discretion or acted arbitrarily. As we noted in State 

Highway Comm'n v. Crossen-Nissen Co., 145 Mont. 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 its judgment for 

the judgment 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 to be compatible with 

the greatest public good and the least private 

injury. " 

While the factual considerations before us in Crossen-Idissen 

are not the same as those 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 State Highway Comm'n v. Yost Farm Co., 142 Mont. 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 to the 

contrary satisfactorily overcomes it. By 

proof which satisfactorily overcomes it, is 

meant that which sustains the affirmative of 

the issue--a preponderance of the evidence. 

In this jurisdiction civil cases are to be 
decided according to the greater weight of the 

evidence, and a bare preponderance in favor of 

the party holding the affirmative of the issue 

is sufficient to warrant, and should result in, 

a decision in his favor. [Citing cases.] Therefore, when the evidence preponderates against a 

disputable presumption, it "fades away in the 

face of contrary facts."'" 

The district court, the trier of fact here, had before 

it the statutory presumption buttressed by the testimony of the 

district ranger in whose jurisdiction the construction was proposed. The sole controverting evidence was the testimony of the 

defendant landowner. The evidence was weighed by the district 

court and was found to establish, among other things, * * * 

that said highway referred to in the complaint has been located 

along a route which will be most compatible with the greatest 

public good and the least private injury." 

Our review of the record discloses substantial evidence 

to support that finding. Moreover, there is substantial evidence 

supporting the choice of the proposed route, even though a location on the federal lands might ultimately have been permitted 

by the federal government. The failure of the Highway Department 

to pursue their inquiries concerning the forest route to the 

highest levels of the federal government lacks importance under 

these facts. However, under appropriate facts, the failure of 

the Highway Department to exhaustively pursue the securing of 

federal or other public lands might constitute arbitrariness or 

abuse of discretion similar to that found in Danielsen. 

The preliminary order of condemnation is affirmed. 

Justice 

>' 3 We Concur: 

/ Justice 4 
Mr. Justice Wesley Castles dissenting: 

I dissent. I would 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. I do 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. Justice Wesley Castles in what he has 

said in his dissent.