Public Comment. Volume III - Montana Legislature

The powers of the Court regarding the preliminary order ofcondemnation are set forth in Mont.
Code Ann. S 70-30-206(2):
(2) If the court finds and concludes from the evidence presented that the
public interest requires the taking of such interest in real property and that
the Plaintiff has met his burden of proof under 70-30-1 1 1, it must forthwith
make and enter a preliminary condemnation order that the
condemnation of the interest in real property 'may proceed in accordance
with the provisions of this chapter.
This statute thus determines the scope of the necessity hearing.
DISPUTABLE PRESUMPTIONS
Montana statutes recognize some conclusive presumptions (Mont. Code Ann. § 26-1 -60 I), and
provide that all other presumptions are "disputable presumptions" which may be controverted by other
evidence. Mont. Code Ann. 9 26- 1-602. The issue then is the amount ofproof required to overcome a
disputable presumption.
The Montana Supreme Court stated the burden of proof on aparty protesting necessity in State
Highway Comm 'n v. Danielsen, 146 Mont. 539,409 P.2d 443,445 (1965). That decision stated that
the property owner must, by clear and convincing proof, "show fraud, abuse of discretion, or arbitrary
action" by the Department.
This makes it clear that once adisputable presumption is before the Court, as it is in all necessity
cases, the burden is upon the Defendants to come forward with the clear and convincing proof to overcome
the presumption. This burden of production does not shift to the Landowners the burden of proof, but it
does mean that they must produce proof sufficient to overcome the presumption before there is any need
for the State to produce any aflknative evidence on the issue. Thus, commonly, in a necessity hearing the
State will call the Court's attention to the existence of the Order and the presumption and then rest. If the
Defendants produce sufficient evidence to overcome the presumption, then the State will produce rebuttal
evidence.
THE BURDEN OF PRODUCTION
The ultimate burden of proving necessity rests with MDT, but it has the benefit of statutory affirmative
proof on the issue of necessity unless and until the presumption has been overcome by evidence
introduced by the Defendants. The Montana Supreme Court has addressed this issue in a number of
necessity cases, expressing both the burden which the condemnee (landowner) must bear and the standard
of proof which they must meet.
With regard to whether the taking is necessary, this Court has consistently held that
the necessity need not be absolute. Instead the test is "reasonable, requisite, and proper
for the accomplishment ofthe end in view, under the particular circumstances of the case."
EQC Eminent Domain Study -1 13-