Public Comment. Volume III - Montana Legislature

Schoro v. Anaconda Co., 187 Mont. 377,385,6 10 P.2d 132, 136-7 (1 980). citing Montana Power
Co. v. Bokrna, 153 Mont. 390,398,457 P.2d 769,774 (1 969); State Highway Comm 'n v. Yost Farm
Co., 142 Mont. 239, 384 P.2d 277 (1963); Butte, A. & P. Ry. Co. v. Montana U Ry. Co., 16 Mont.
504,4 1 P. 232 (1 895). See also State ex rel. Livingston v. District Court, 90 Mont. 19 1, 196, 300
P. 916,918 (1931).
When the plaintiff [MDT] selected its route, it did not lie in the mouth of the
defendant to say that another possible route could have been selected. The plaintiff had
the right to select a particular route which it deemed most advantageous.
State v. Whitcomb, 94 Mont. 415,429,22 P.2d 823, 826 (1933).
When the Highway Commission exercised its discretion and proposed to bypass
Harlem, it became incumbent upon the defendant to show hud, abuse of discretion, or
arbitrary action in order to defeat the action of the Commission. Whereas it was only
necessary for the Highway Commission to establish that the taking of the property of
Crossen-Nissen was reasonably necessary for the rebuilding of U.S. Highway No. 2 in
order to be free from interference by the courts.
... p]n regard to selecting the particular land to be condemned, it is the view of this
court that even when necessity has been challenged on the ground of arbitrariness or
excessiveness of the taking, there is left largely to the discretion of the condemnor the
location, route and area of the land to be taken. There rests upon the shoulders of one
seeking to show that the taking has been excessive or arbitrary, a heavy burden of proof
in the attempt to persuade the court to substitute its judgment for that of the condemnor.
(Nichols, Eminent Domain, 5 4.1 1(2), p. 558 (3d ed.))
State Highway Comm 'n v. Crossen-Nissen, 145 Mont. 25 1,255,400 P.2d 283,285 (1965).
plhe adoption of aresolution by the State Highway Commission declaring that a project
is necessary to an authorized use and compatible with the greatest public good and least
private harm creates a disputable presumption of the same. R.C.M. 1947,s 32-1 6 15
[now Mont. Code Ann. 5 60-4-104(3)]. This presumption is overcome when the
defendant property owners show bud, abuse of discretion, or arbitrary action. This
requires clear and convincing proof.
State Highway Comm 'n v. Danieben, 146 Mont. 539, 544,409 P.2d 443,445 (1965).
Nonetheless, private injury is but one of the considerations present in a condemnation. ...
Avoidance of increased costs as an element of the public good has been recognized by the
Court .... Given these economic and ecological factors, we cannot find clear and
convincing proof that the Highway Commission abused its discretion or acted arbitrarily.
-1 14- Volume Ill: Public Comment