Public Comment. Volume III - Montana Legislature

On the issue of the use of taken land for uses not originally covered under the
condemnation order, we support your passage of Wyoming 1-26-5 15, which would
require that the landowner be compensated for each and every use of their taken land.
We support Rep. McGee and Shockley's efforts to improve due process
protections for landowners.
As an organization of landowners were are very concerned about the issue of the
burden of proof. It should never be the landowner who has to prove that the condemnor's
taking of their land is excessive. The legislature has deferred to the condemnor for too
long, and we need to respect private property rights. In nearly all instances, we should
correct the law so that the condemnor must have the burden of proof. AAer all, he has
tremendous legal leverage at his disposal - the power to take private property. We
specifically suggest amending 70-30-1 1 1 subsection (2) so that the condemnor has to
prove by a standard of clear and convincing evidence that the taking of a particular piece
of property is necessary. The current standard of a preponderance of the evidence is too
low. The condemnor should have to prove public need or true public use through clear
and convincing evidence, and we hope you will make this important change.
One of our largest concerns is in the type of interest that may be taken by a
condemnor. I will be honest with you. We believe that the state should limit the of
property rights that can be taken from a landowner through,eminent domain. Right now,
fee title may be taken, and if so, the burden is on the landowner to prove that a fee title
interest is too much of an interest to take. When a project, such as a railroad, can be
accomplished with an easement, and the landowner wants only to give an easement, the
state should respect private property rights and limit the interest taken to an easement. It
is not the state's place to second guess what is best for the landowner. The state should
presume that an easement will satis@ the need of a right-of-way, and it would be the
burden of the condemnor to prove fee title was necessary. We don't believe that taking
fee title should be approved if the reason is so that the condemnor can get financing.
Private property owners should not have to subsidize the financing of a private
corporation's project. Eminent domain should not be a money making enterprise for
condemnors!
Finally, but not least important, is the issue of just compensation. We have long
been concerned that the eminent domain law doesn't really take into account the
devaluation of the remainder of a piece of property if only a strip is taken. That is, if I am
a condemnor and I take only a strip of your land, depending on the location of the strip, I
may have seriously devalued and damaged the remainder of your property. Because of
this, and because the power of eminent domain is so extreme, we propose that you amend
the law so that the landowner is compensated for the difference between the value of the
property without development and the value with development. This should be
determined by evaluating comparable sales of like property NOT on the route or vicinity
of the proposed condemnation.
March 23,9000
-1 40- Volume Ill: Public Comment