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 line pursuant to sections 69-4-401 through 69-4-404, 

MCA, in the District Court of the First Judicial District, 

in and for the County of Lewis and Clark, the Honorable Nat 

Allen presiding. 

Respondent is the owner of certain real agricultural 

property in Lewis 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 line pursuant to 

sections 69-4-401 through 69-4-404, MCA, alleging that he 

desired to install a "center pivot irrigation system" on his 

property which would increase the productivity of the land 

from one-half ton of alfalfa per 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 to dismiss was filed by appellant. Briefs 

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

was overruled. The motion to dismiss 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 were unconstitutional 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 in agricultural 
productivity by installing the irrigation system and that 

the alternative route offered by respondent for the relocation of the power line was 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 are raised: 

(1) Whether sections 69-4-401 through 69-4-404, MCA, 

inclusive, violate the Fourteenth Amendment to the United 

States Constitution and Article 11, Section 29, of the 1972 

Montana Constitution, in that 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 set forth in 

sections 69-4-401 through 69-4-404 of the Montana Code 

Annotated. Specifically, they provide: 

"69-4-401. Definitions. As used in this 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 wires or 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 line has been constructed may petition the district court 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 to result 

from the improvement, and a feasible alternative 

route, across other land to be provided by the 

petitioner at no cost to the owner of the overhead utility line. 

"69-4-403. Hearing and order. The district 

court shall, upon notice to the owner of the 

overhead utility line, hear evidence bearing 

upon the matters presented in the petition. If 

the evidence establishes a substantial improvement in agricultural productivity and the feasibility of the relocated route, the court 

shall grant or modify and grant, as modified, 

the petition and order the owner of the line 

to relocate the line. 

"69-4-404. Costs of relocation. The costs of 

relocating an overhead utility line as ordered 

under 69-4-403 shall be paid 50% by the utility 

and 50% by the owner of the land. However, if 

the person petitioning for the order fails for 

any reason to install the agricultural improvement within 2 years following the date relocation 

is completed, he must reimburse the owner of the 

line the full cost of relocation, and the court 

has continuing jurisdiction over the parties 

for the purpose of ordering such reimbursement." 

Our first consideration is the character of the abovequoted statutes. On one hand, respondent urges that the 

statutes are an exercise of the police power of this state 

over public utilities and that property may therefore be 

taken without just compensation. On the other hand, appellant characterizes the statutes as involving the right of 

eminent domain, which authorizes the state to take private 

property for public use with just compensation. 

We find that the statutes sound in eminent domain. 

Where the exercise of the police power of the state is 

directly connected with matters of public health, safety and 

welfare, we find that those matters are only indirectly 
concerned, if at all, with the matters raised by the statutes 

here. More importantly, we note that the statutes provide 

for a "taking'! of property without the consent of a utility. 

They involuntarily require a public utility to move its 

power lines and pay half of the costs of relocation when an 

owner of farmland makes the necessary showings in District 

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 first issue concerns whether the taking is for a 

public or private use. It is fundamental to the law of 

eminent domain that private property may not be taken without an owner's consent for the private use of another. 

Spratt v. Helena Power Transmission Company (1908), 37 Mont. 

60, 94 P. 631; section 70-30-101, MCA. Both the United 

States and Montana Constitutions prohibit a taking by the 

state for merely 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 is public. 

The Montana legislature has by statute declared several 

uses to be public in connection with the right of eminent 

domain. Section 70-30-102, MCA. Among the uses enumerated 

are: 

". . . the right of eminent domain may be 

exercised in behalf of the following public 

uses: 

" (2) . . . all other public uses authorized 

by the legislature of this state; 

"(4) . . . canals, ditches, flumes, aqueducts, 

and pipes for public transportation, supplying . I! . . farming neighborhoods with water 
Here, one of the uses for which eminent domain is 

sought is the more efficient use of water in the irrigation 

of farmland. Respondent desires to install a center pivot 

sprinkling system, recognized as a much more efficient 

method of irrigation than methods such as flooding. Appellant, while acknowledging the desirability of such a system, 

argues that such a use has never been specifically declared 

to be public by the legislature. Where supplying a farming 

neighborhood with water is a public use, appellant maintains 

that the means of using water once it has been supplied has 

not been recognized as a public use. 

We disagree. First, we note several important provisions which relate to the use of water within this state. 

Perhaps the most important of these is a constitutional 

provision in which the people have declared that the use of 

all water within this state shall be deemed to be a public 

use. Article IX, Section 3 (1) , of the 1972 Montana Constitution, provides: 

"The use of all water that is now or may hereafter be appropriate for sale, rent, distribution, or other beneficial use, the right of way 

over the lands of others for all ditches, drains, 

flumes, canals, and aqueducts necessarily used 

in connection therewith and the sites for reservoirs necessary for collecting or storing water 

shall be held to be 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 Use Act, provides: 

"Pursuant to Article IX of' the Montana Constitution, the legislature declares that any use of 

water is a public use and that the waters within 

the state are the property of the state and for 

the use of its people. . ." 

Section 85-2-101, MCA, also enunciates the policy of 

this state concerning water: 
"It is the policy of this state . . . to encourage the wise use of the state's water resources 

by making them available for appropriation consistent with this chapter and to provide for the 

wise utilization, development and conservation 

of the waters of the state for the maximum benefits of its people with the least possible degradation of the natural aquatic ecosystems. 

In pursuit of this policy, the state encourages 

the development of facilities which 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 irrigation of farmland is indeed a 

public use for which the right of eminent domain will lie. 

While this use may not readily conform to the traditional 

concept of "public use," we note that term is 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 to respondent here in that the productivity of his land will be increased, it is also true that 

there will be a benefit to the public. 

We feel compelled to observe 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 all those who use it. The mere fact that one may 

realize private profit in property sought to be 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 actually make 

use of the public use determinative of its character. This 

is especially true in the case of a recyclable resource. A 

use may be public even though it may be enjoyed at certain 

times by a comparatively small number of people. 

Eminent Domain S32, p. 681. We find, therefore, that a more 
efficient use of water in the irrigation of farmland is 

a public use for which 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, it may 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 statutes provide that the owner of land 

offer a feasible alternative route upon which the utility 

may plot its power 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), 142 Mont. 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 compensation properly due appellant. 

With this proposition we fully agree. 

Article 11, Section 29, of the 1972 Montana constitution, states: 
"Private property shall not be taken or damaged 

for public use without just compensation to the 

-- full extent --- of the loss having been first made 

to or paid into the court for the owner." (Emphasis added. ) 

This Court has also held in several cases that a landowner in a condemnation action should be fairly and fully 

compensated, State v. Peterson (1958), 134 Mont. 52, 57, 328 

P.2d 617, 620, and that just compensation is determined by 

equitable principles, Alexander v. State Highway Commission 

(1966), 147 Mont. 367, 371-72, 412 P.2d 414, 416. In Alexander we stated: 

"Just compensation is determined by equitable 

principles. Its measure varies with the facts. 

Where the circumstances will not permit, the 

value of property cannot be measured solely by 

formula or artificial rule . . ." 

Here, there is just compensation in one sense; the 

utility is compensated for the easement which it already 

has. The statutes require that the landowner offer land 

upon which the utility may plot an alternative route for its 

power line. It is nonetheless a fact, however, that the 

utility must also bear half the cost of relocation. Where 

the land is condemned and the utility has paid for the 

easement once, we think it unfair that it be required to pay 

for the easement again. The relocation of the power line 

comes at the insistence of the landowner, and it is he who 

should properly bear the costs of relocation. We find 

therefore that section 69-4-404, MCA, does not provide for 

just compensation, and we declare it unconstitutional. 

Accordingly, we affirm in part and reverse in part the 

judgment of the District Court and order that respondent pay 

the entire cost of relocating the overhead utility line. 
We concur: 

Ceief Justice