### No. 14850 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

ROBERT 

### E

# . McTAGGART

## , Petitioner and Respondent,

VS

# . THE MONTANA POWER COMPANY, Respondent and Appellant.

Appeal from: District Court of the First Judicial District, Honorable Nat Allen, Judge presiding. Counsel 

### of Record: For Appellant: Corette, Smith, Dean, Pohlman and Allen, Butte, Montana Kendrick Smith argued, Butte, Montana For Respondent: Herron and Meloy, Helena, Montana Peter M. 

### Meloy argued, Helena, Montana

Submitted: November 1, 1979

Filed:Mr. Justice John Conway Harrison delivered the Opinion of the Court.

This 

### is an action for the relocation of an overhead utility linepursuant to sections 69-4-401 through 69-4-404, MCA, in the DistrictCourt of the First Judicial 

### District, inand for the County of Lewis and Clark, the Honorable Nat Allen presiding. Respondent 

### is the owner of certain real agricultural property inLewis and Clark County. Appellant, the Montana Power Company, is the owner of an overhead utility line which crosses respondent's property. Respondent filed a petition for the relocation of the utility linepursuant to sections 69-4-401 through 69-4-404, MCA, alleging thathe desired toinstall 

### a "center pivot irrigation system" on his property which would increase the productivity of the land from one-half ton of alfalfaper acre to five tons per acre. Respondent offered a feasible alternative route for the relocation of the line giving appellant a right-of-way to continue 

### its operation of the line and allowing respondent to install the new irrigation system. A motion todismiss was filed by appellant. Briefs



### were submitted on themotion by both parties, and the motion

was overruled. The motion todismiss presented alternative contentions that the applicable statutes

### were unconstitutional because they allowed a taking of private property for private use, or, if the taking was for a public use, the statutes

### wereunconstitutional because there was no just compensation. Respondent filed a motion for summary judgment, which

was granted by the District Court. The court found that there would be a substantial improvement inagriculturalproductivity by installing the irrigation system and that the alternativeroute offered by respondent for the relocation of the power linewas feasible. The court further found that sections 69-4-401 through 69-4-404, MCA, were constitutional and ordered appellant to relocate the utility line. The costs of relocation

### were divided equally between the parties. Appellant appeals from the summary judgment and order. The issues raised on appeal solely concern the constitutionality of the applicable statutes. In particular, two issues areraised: 

### (1)Whether sections 69-4-401 through 69-4-404, MCA, inclusive, violate the Fourteenth Amendment to the United StatesConstitution and Article 11, Section 29, of the 1972 Montana Constitution, inthat they allow the taking of private property for the private use of another? (2) Whether the use sought by respondent 

### is a public use, and if so, whether sections 69-4-401 through 69-4-404, MCA, inclusive, 

### are a violation of the Fourteenth Amendment 

### to the United States Constitution and Article 11, Section 29, of the 1972 Montana Constitution, because they allow the taking of private property for public use without just compensation? The statutes applicable in this case 

### are setforth in sections 69-4-401 through 69-4-404 of the Montana Code Annotated. Specifically, they provide: "69-4-401. Definitions. As used inthis part, the following definitions apply: (1)'Agricultural improvement' includes, without limitation, sprinkler irrigation systems. (2) 'Overhead utility line' means a facility for the transmission or distribution of electricity or 

### telephone messages along 

### wiresor cables suspended above the ground between single or double poles and their respective anchors.

### "69-4-402. Petition for relocation of overhead line. An 

### owner of agricultural land across which an overhead utility linehas been constructedmay petition the districtcourt for an order for relocation of the line for the purpose of installing an agricultural improvement. The petition shall set forth the nature of the proposed agricultural improvement, the increase in productivity of the land anticipated toresult from the improvement, and a feasible alternative route, across other land tobe provided by the petitioner atno cost to the owner of the overhead utilityline. "69-4-403. Hearing and order. The district court shall, upon notice to the owner of the overhead utility line, hear evidence bearing upon thematters presented inthe petition. If the evidence establishes a substantial improvement inagricultural productivity and the feasibilityof the relocated route, the court shallgrantormodify and grant, asmodified, the petition and order the owner of the line torelocate the line. "69-4-404. Costs of relocation. The costs of relocating an overhead utility line as ordered under 69-4-403 shallbe paid 50%by the utility and 50%by the owner of the land. However, if theperson petitioning for the order failsfor any reason toinstall the agricultural improvement within 2 

### years following the date relocation is 

### completed, he must reimburse the owner of the line the fullcost of relocation, and the court has continuing jurisdiction over the parties for the purpose of ordering such reimbursement." Our firstconsideration is 

### the character of the abovequoted statutes. On one hand, respondent urges that the statutes arean exerciseof the police power of this state



### over public utilitiesand thatproperty may therefore be taken withoutjust compensation. On the other hand, appellant characterizes the statutes as involving the right of eminent domain, which authorizes the stateto take private property forpublic use with just compensation. We 

### find that the statutes sound ineminent domain. Where the exercise of the police power of the state is 

### directly connected with matters 

### of public health, safety and welfare, we find thatthose

### matters areonly indirectlyconcerned, if atall, with the matters raised by the statutes here. More importantly, 

### we note that the statutesprovide for 

### a "taking'! of property without the consent of a utility. They involuntarily require 

### a public utility tomove 

### its power lines and pay half of the costs of relocation when an
owner of farmland makes the necessary showings inDistrict Court. That being the case, eminent domain, the right of the state to take private property for public use, and the principles of eminent domain 

### are applicable here. The firstissue concerns whether the taking 

### is for a public orprivate use. It 

### is fundamental to the law of eminent domain thatprivate property may not be taken without an owner's consent for the private use of another. Sprattv. Helena Power Transmission Company (1908), 37 Mont. 60, 94 P. 631; section 70-30-101, MCA. Both the United States and Montana Constitutionsprohibit a taking by the 

### state formerely private use. U.S. Const., Amend. XIV; 1972 Mont. Const., Art. 11, §17. Rather, for the right of eminent domain to lie, the use must be one which 

### ispublic. The Montana legislature has by statutedeclared several

uses tobe public inconnection with the right of eminent domain. Section 70-30-102, MCA. Among the uses enumerated

are: 

# ".

. . the rightof eminent domain may be exercised inbehalf of the following public uses:


### "(2) 

# . . . allother public uses authorized by the legislature of this state;

"(4) 

# . . . canals, ditches, flumes, aqueducts, and pipes forpublic transportation, supplying

# . I!

# . . farming neighborhoods with 

### waterHere, 

### one of the uses forwhich eminent domain is 

### sought is 

### themore efficient use of water inthe irrigation of farmland. Respondent desires toinstall a center pivot sprinkling system, recognized as a much more efficient method of irrigation than methods such asflooding. Appellant, while acknowledging the desirability of such a system, argues that such a use has never been specifically declared tobe public by the legislature. Where supplying a farming neighborhood with water is

### a public use, appellantmaintains that the means of using water once it 

### has been supplied has notbeen recognized asa public use. We 

### disagree. First, 

### we note several important provisionswhich relate to the use of water within this state. Perhaps themost important of these is

### a constitutional provision inwhich the people have declared that the use of allwater within this state shallbe deemed tobe a public

use. Article IX, 

### Section 3 

### (1)

## , of the 1972Montana Constitution, provides: "The use of all

### water that is

### now ormay hereafterbe appropriate for sale, rent, distribution, orother beneficial use, the right of way over the lands of others for allditches, drains, flumes, canals, and aqueducts necessarily used inconnection therewith and the sites for 

### reservoirs necessary for collecting or storingwater shallbe held tobe a public use." Next, 

### we note the position of the Montana legislature with respect to

### water. Section 85-2-101, MCA, 

### of the 1973 Montana Water UseAct, 

### provides: "Pursuant toArticle IX

### of'the Montana Constitution, the legislature declares that any use of water isa 

### public use and that the waters within the stateare the property of the stateand for the use of its

### people. 

# . ." Section 85-2-101, MCA, 

### alsoenunciates the policy of this stateconcerning water:"Itis the policy of this state

# . .

# . to encourage the 

### wise use of the state's 

### water resources by making them available for appropriation consistentwith this chapter and toprovide for the wise utilization, development and conservation of the waters of the state for the maximum benefitsof 

### itspeople with the leastpossible degradation of the natural aquatic ecosystems. In pursuit of thispolicy, the stateencourages the development of facilitieswhich store and conserve waters for beneficial use, for the maximization of the use of those 

### waters in Montana, for the stabilization of 

### stream flows, and for groundwater recharge." From these provisions, 

### we believe that a more efficient

use of water in the irrigationof farmland 

### is indeed a public use forwhich the right of eminent domain 

### will

### lie. While thisusemay not readily conform to the traditional concept of "public use," 

### we note that 

### termis elastic and keeps pace with changing conditions. 26 Arn.Jur.2d Eminent Domain S27, pp. 671-672. Although 

### it 

### is true that there may be a private benefit torespondent here in that the productivity of his land 

### willbe increased, 

### it is also true that there

### willbe a benefit to the public. We feel compelled toobserve the high priorities that have been put on the use of 

### water by the people of this state. 

### Water must be conserved and put to the maximum benefit of allthose who use 

### it. The 

### mere factthat one may realize private profit inproperty sought tobe condemned does not prevent the use from being declared public. Spratt

v. Helena Power Transmission Co. (1908), 37 Mont. 60, 77, 94 P. 631. Nor is the mere number of people who actuallymake

use of the public use determinative of its character. This 

### isespecially true inthe case of a recyclable resource. A

use may be public even though it may be enjoyed 

### atcertain timesby a comparatively smallnumber of people. Eminent Domain S32, p. 681. We find, therefore, that a more

### efficientuse of water in the irrigation of farmland is

a public use forwhich the right of eminent domain will lie. We note additionally that these statutes do not violate the rule that where property has already been taken for a public use, itmay not be condemned again except for a more necessary public use. Cocoanougher v. Ziegler (1941),112 Mont. 76, 81-82, 112 P.2d 1058, 1060; section 70-30-103!(c), MCA. Here, the statutesprovide that the owner of land offer a feasible alternative route upon which the utility may plot itspower line. Because the property is substituted, it cannot be said to have been "doubly condemned." We have previously upheld substitute condemnation as a valid exercise of the power of eminent domain. See, State ex rel. De Puy v. District Court (1963),142Mont. 328, 384 P.2d 501, 20 A.L.R.3d 862, 868. Our decision today in no way involves 

### a determination of whether the transportation of electricity or the efficient use of water has the higher priority in terms of public use. The second issue in this case involves whether there is just compensation. Section 69-4-404,MCA, provides that the costs of relocation shall be divided equally between the landowner and the owner of the power line. Appellant argues that the statute does not provide for just compensation. Appellant maintains that the principle of just compensation requires that the owner of condemned property be made whole for all of the damages sustained and that there must be full compensation. Appellant contends that 50 percent compensation is only half of the compensationproperly due appellant. With this proposition we fully agree. Article 11, 

### Section 29, of the 1972Montana constitution, states:"Privateproperty shall not be taken ordamaged forpublic use without just compensation to the 

### -- fullextentof the losshaving been firstmade 

### --- toorpaid into the court for the owner." (Emphasis added.) This Court has alsoheld in several cases that 

### a landowner ina condemnation action should be fairly and fully compensated, Statev. Peterson (1958), 134 Mont. 52, 57, 328 P.2d 617, 620, and thatjust compensation 

### is determined by equitable principles, Alexander v. StateHighway Commission (1966), 147Mont. 367, 371-72, 412 P.2d 414, 416. 

### InAlexander 

### we stated: "Just compensation isdetermined by equitable principles. 

### Its measure varies with the facts. Where the circumstances 

### willnot permit, the value of property cannot be measured solelyby formula or artificialrule 

# . 

# . ." Here, there isjust compensation inone sense; the utility is compensated for the easement which 

### it already has. The statutesrequire that the landowner offer land upon which the utilitymay plot an alternative route for 

### its power line. It isnonetheless a fact, however, that the utilitymust alsobear half the cost of relocation. Where the land 

### iscondemned and the utility has paid for the easement once, 

### we think it unfair that 

### it be required topay for the easement again. The relocation of the power line

comes atthe insistence of the landowner, and it 

### ishe who should properly bear the costsof relocation. We find therefore that section 69-4-404, MCA, does not provide for just compensation, and 

### we declare it unconstitutional. Accordingly, 

### we affirm inpart and reverse inpart the judgment of the DistrictCourt and order thatrespondent pay the entire cost of relocating the overhead utility line.

### We concur:

Ceief Justice