Public Comment. Volume III - Montana Legislature

H AND B 11P
HOLLAND & HART^^^
AlTORNEYS AT LAW
Environmental Quality Council
April 1 1, 2000
Page 4
Another proposal before the subcommittee deals with the interests which
can be acquired by the condemnor. Frankly, .I am not sure whether the propmal
seeks to Limit that interest to an easement, or merely instead suggests that the
interest which the condemnor can acquire be limited to something less than fee
simple title if fee simple title is not necessary for the intended use. Under
existing law, the court bas the power to limit the interest sought if in the court's
opinion the interest sought, such as fee simple title, is not necessary. Mont.
Code Ann. 70-30-206(1)(b). It seems to me this is the appropriate approach
because it allows the judge to tailor the interest to fit the circumstances of each
case. In addition, it does not restrict the judge to one or two alternatives such
as fee simple title or an casement, but rather broadens the possibilities to other
interests, such as a fee simple with an automatic reverter to the condernnee or
the condemnee's successor, when the property is no longer being used for the
purpose for which it was taken. As noted, the decision of what type of interest
the condemnor may obtain is presently determined by the judge, which is
appropriate because of the judge's background and legal training. That decision
would be made by a jury if the law is amended to permit the jury to determine
the issue of necessity.
Finally, I would like to comment on the draft copy of a proposed bill
deahg with the liability of a property owner whose property is taken by eminent
domain. The intent of the bill seems to be to apportion liability between the
condemnor and the condemnee for damages resulting from the coustructioq use
or maintenance of a project.
The bill provides in subsection (2) that a condemnee may be held liable
only for damages caused by his or her gross negligence or intentional conduct. 1
do not understand the justification for relieving anyone, including condemnees,
from the consequences of his or her negligence. Under Montana law, a person is
responsible for damages caused by his or her negligence, and I see no
justification for enacting legislation which relieves a person of that duty.
Subsection (3) of the draft bill which attempts to place the burden of defense on
the condemnor, unless the damages claim results from the condemnee's gross
negligence or intentional conduct, is objectionable for the same reasons. A
person should be responsible for his or her negligence, and that responsibility
ought to include defense of an action for damages.
EQC Eminent Domain Study -1 21 -