Public Comment. Volume III - Montana Legislature

BROWN LAW F w P.C.
Page 3
April 1 1,2000
2. Condemnors should be restricted fiom transferring use interests in condemned
property to third parties for any other uses which are beyond the primary use for
which the condemnors' interests were acquired.
. . This-particular concern has arisen because condemnors have acquired the right to lay
fiber optic cables, ostensibly for their own use, and then have sold the rights to third party cable
companies to install additional fiber optic lines or use the fiber optic lines installed by the
condmenors. When confronted by this, condemnors, which have acquired fee simple title to a
ribbon of land through ranch and farm land or an unrestricted easement, take the position that its
nobody's business, if third parties are allowed to use the condemned land. Many of these
condemnors have receive handsome fees fiom third parties without any remuneration to the
underlying land owner.
It goes without saying that underlying land owners have not been told that third parties
will also burden their land. The only things under lying land owners or courts, for that matter, are
normally told about, are the needs of condemnors. To expand the use, beyond that which has
been represented to the underlying landowners, is an added burden to the underlying land owner's
property. This added burden exists whether the taking is in fee or by easement- - as an example,
the more use made of a fiber optic cable by third parties the sooner that cable will need to be
replaced or a new one placed along side it. That site work will necessarily impact the underlying
land owners' property. Another example is the situation, where a third party is given iidependent
rights of maintenance and replacement side by side with the same rights, retained by the
condemnor. In this last example multiple companies could be performing maintenance and
replacement work during the same periods of time. Land owners should not be subjected to these
added third party uses, unless prior to the taking, these uses are specifically addressed as
condemnor's primary needs.
The law needs to be clarified so that condemned property may only be used for the
primary purpose for which it acquired and no other. If the condemnor sells all or part of its
primary business, requiring the use of the condemned property, the assignee should be allowed to
acquire rights in the condemned property. To allow the condemnor to do anything more than that
would not be in keeping with the public policy that the condemnor only be allowed the least
definable taking which will still allow the condemnor to reasonably hlfill its needs. The needs of
third parties aren't the needs of the condemnor.
The limitation on transfers for third party use should be required by a separate statute
which covers both court decisions and negotiated takings. It should be made clear that a taking
by the federal government or the state and local governments for highway purpose have no such
limitation in order to assure the continued use of the highway systems for use by various beneficial
utilities.
-62- Volume Ill: Public Comment