Public Comment. Volume III - Montana Legislature

Memo--Marylee Norris, John Nor~h
February 16, 1993
page 3
Company, 41 Mont. 509, 110 P. 237 (1910).'
But it is clear, and constitutional,
that the same powers are denied to coal miners. Scharam v. Anaconda Co., 187
Mont. 377, 610 P2d 132 (1980).
Congress
Once again, I have reviewed all relevant federal statutes I could find from the
index to the US Code, or referenced in Nichols on Eminent Domain. As I said above,
my conclusion is in doubt if undisclosed code sections turn out to be applicable.
First of all, eminent domain powers are less well established on the part of the
federal government that of the states. There is no provision of the US Constitution
giving the federal government powers of condemnation. Nichols, 51.24 [4].
Accordingly, for decades, it was either little used by the federal government or it was
used only when authorized under state law. Nichols 53.1 1 [I]. It was judicially
recognized for the first time in Kohl v. US, 91 US ,367, 23 L.Ed 449 (1 8751, but it is
now generally recognized as a legitimate federal implementation of the more specific
grants of federal authority in the constitution. Nichols 53.1 1 [ I I.
The same rules of "express or necessary implication" construction apply to
federal delegation of condemnation power as of state. Nichols, 53.21 3. The only
possibly pertinent references to condemnation powers which I found were those to
railroads. 43 USC 942-1, et seq. 543 USC 942-3 specifically provides for
condemnation. 542 USC 934-939 constitutes a general railroad right-of-way act and
provides for condemnation for railroads, including those accessing mine sites. But,
as in the Montana statutes, Meridian probably does not constitute a "railroad" because
it is not a common carrier. Denver & R. Gr Co. v. Bolognese 45 UT 65, 143 P. 129
(1 914).
Summary
In short, I can find no authority thus far to substantiate Meridian's claim to hold
eminent domain powers for its rail spur. In the event other statutory authority is
turned up, this conclusion is subject to reevaluation.
'Kipp involved a challenge by landowner's adjoining a Butte city street to the city's conveyance of a use permit
.for hauling ore on a commercial railway down the middle of the street. At issue was whether such a use was a
"public purpose" within the contemplation of the street dedication. The court looked at the long history of metal
mining as a bedrock of Montana economy in concluding that such a use was acceptable as a public purpose.
EQC Eminent Domain Study -259-