Public Comment. Volume III - Montana Legislature

is not already appropriated to some public use, such as another road. As a result. blont. Code Ann. 8 70-
30- 1 1 l(3) does not apply. Further, before a condemnation action is tiled by MDT, there has been an
effort to obtain the interest sought by submission of a written offer and the offer was rejected. In the normal
case, therefore, the only issue left to decide is whether the taking is necessary to the proposed use, which
is another way of saying "public necessity." The necessity issue has not been extensively litigated, but the
statutes and the Courts have clarified the issues involved, especially those of burden of proof and the
standard of proof required in this type of action.
THE POWER OF EMINENT DOMAIN
The power of eminent domain is an "inherent" power of government which has always been
recognized by the courts. The power resides in the Legislature, but has been delegated by express
statutory authority to agencies of the State, or even to private parties.
MDT has a statutory grant of authority to acquire property. "Whenever the department cannot
acquire lands ... or property at a price or cost which it considers reasonable, it may ... procure the interests
by proceedings ...." Mont. Code Ann. § 60-4-104(1). See also Mont. Code Ann. 5 60-4-102. To
exercise its power of eminent domain, the Department adopts an Order (commonly referred to as the
"condemnation order") declaring that:
(a) public interest and necessity requite the construction or completion by the
state of the highway or improvement for one of the purposes set forth in
60-4- 103 ;
(b) the interest described in the order and sought to be condemned is
necessary for the highway or improvement;
(c) the highway or improvement is planned and located in amanner which will
be compatible with the greatest public good and least private injury.
Mont. Code Ann. 8 60-4-104(2).
Such an Order is adopted prior to all condemnation cases by the Department and is incorporated
into a condemnation complaint.
In regard to the condemnation order, Mont. Code Ann. § 60-4-104(3) further provides that:
(3) The order creates and establishes a disputable presumption:
(a) of the public necessity of the proposed highway improvement;
(b) that the taking of the interest sought is necessary therefor;
(c) that the proposed highway or improvement is planned or located in a manner
which will be most compatible with the greatest public good and the least private
injury. (Emphasis Added)
Absent adequate rebuttal evidence by the landowner on the issue of "necessity," MDT is entitled
to a Preliminary Order of Condemnation that the taking is necessary to a public use and that the proposed
improvement is planned in a manner compatible with the greatest public good and least private injury.
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