Public Comment. Volume III - Montana Legislature

BROWN LAW F w P.C.
Page 2
April 1 1,2000
simple title.
The vast majority of eminent domain matters are handled through private negotiations.
Most of those are done by land owners who don't even consult their lawyers. Simply put, fee
simple title is normally given up without even considering theconsequences. In litigation many of
condemnation cases are result in a fee simple title taking. The Condemnors file their cases
seeking fee simple title and support their claims with simple proof of their needs to use the land
being taken, as a pipe line for example. At this point the burden shifts to the Condemnee to prove
that there is no need for a fee simple taking and that an easement interest is sufficient. The courts
then make their decisions, under the power conferred under Section 70-30-206, MCA which
allows courts to "limit the interest in real property sought to be appropriated if in the opinion of
the court the interest sought is not necessary." There is nothing in this statute is which creates a
presumption that ~Q
to reasonablv fulfill their needs. There is nothing in this statute which mandates that condemnors,
who privately negotiate takings, do so as easements, unless they get a court order which allows
them to do otherwise.
There are practical reasons why the more limited easement taking should be required
unless a court finds that a fee simple taking is required:
A Easements by their vary nature revert to the owner of the fee when they are
abandoned;
B. Easements through non use are be deemed abandoned;
C. Easement uses are spelled out in the written easement and through rules of
construction are restrictively interpreted against the grantee;
D. Easements don't restrict the fee owner from using the easement area, as long as
such use does not unreasonably burden the use of the grantee;
E. Easements which bifircates a land owner's property by a ribbon of land, create
less of a question as to the land owner's right to cohesively use his property as a
whole; and
F. Easements which separate the land owner's property by a ribbon fiom adjoining
leasehold interests, water sources and fiom points of access, create less questions
at to the land owners continued rights of access.
In each of the considerations A. through F. the burdens through easements are less onerous and
are fraught with less legal questions than fee simple takings.
For all of these reasons, Section 70-30-206, MCA and the related statutes should require
that all takings, should be by easement, unless a court order allowing that fee simple be previously
entered. This would not in any way restrict potential condemnors fiom obtaining what they need
and would in fact place any inconvience caused upon the party who should shoulder it- - the
condemnor.
EQC Eminent Domain Study -61 -