Montana Power Co. v. Burlington Northern Railroad

900 P.2d 888, 272 Mont. 224, 52 State Rptr. 625, 49 A.L.R. 5th 951, 1995 Mont. LEXIS 143
CourtMontana Supreme Court
DecidedJuly 25, 1995
Docket94-441
StatusPublished
Cited by5 cases

This text of 900 P.2d 888 (Montana Power Co. v. Burlington Northern Railroad) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montana Power Co. v. Burlington Northern Railroad, 900 P.2d 888, 272 Mont. 224, 52 State Rptr. 625, 49 A.L.R. 5th 951, 1995 Mont. LEXIS 143 (Mo. 1995).

Opinions

JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision of the Eighth Judicial District Court granting Montana Power Company’s (MPC) Preliminary Condemnation Order and Order of Possession of the easement through Burlington Northern’s (BN) property. We affirm and remand to the District Court as herein specified.

We restate the issues on appeal:

I. Did the District Court err when it found an easement through BN’s property was necessary for the intended use and subject to condemnation?

II. Did the District Court err when it found that MPC’s transmission line was a more necessary use?

III. Did the District Court err when it failed to include any of the requested provisions in its Order of Possession?

MPC has contracted with various railroads using wire-line permits to construct, operate, and maintain electric transmission lines through railroad rights-of-way for over fifty years. Currently, MPC operates transmission lines through such rights-of-way under 1,400 wire-line permits provided by BN.

In 1990, MPC determined additional facilities needed to be constructed in southwest Great Falls to adequately service its customers as required by law. The line’s construction cost approximately $2.2 million. BN does not dispute the need nor the location of the 100 kV transmission facility. MPC acquired easements by purchase on all private parcels of property along the proposed route for the transmission lines except for BN’s property. MPC offered to purchase an easement interest for the Great Falls transmission facility through BN’s property. BN offered to grant a wire-line permit instead. MPC claimed the permit’s revocability and indemnification clauses were onerous and rejected BN’s offer.

Subsequently BN offered an easement to MPC which incorporated a Memorandum of Understanding which BN claimed met MPC’s concerns regarding permanency while addressing the issue of indemnification which was of concern to BN. MPC rejected BN’s offer of an easement because MPC claimed the Memorandum of Understanding [227]*227granted to BN the sole and exclusive option of revocation. Finally, in order to facilitate MPC’s request to begin construction of the transmission line, BN offered a revised wire-line permit extending the termination provision from 30 days to 180 days. MPC rejected this offer as well.

MPC filed a Complaint together with a request for an Order to Show Cause in the Eighth Judicial District Court to condemn an easement over BN’s property for the purpose of constructing, operating, and maintaining an electric transmission line. BN filed a motion for Summary Judgment in its favor with a supporting brief contending that MPC’s purpose could be accomplished through a wire-line permit historically used by the two parties. MPC filed a brief in opposition to BN’s motion and requested from the court a Preliminary Condemnation Order under § 70-30-203, MCA. The District Court found an easement was the minimum estate in BN’s land necessary for MPC’s proposed use as required for the public’s interest. The court denied BN’s motion for Summary Judgment and granted MPC’s Preliminary Condemnation Order.

Pursuant to statute, BN filed its Statement of Claim for $8,700— the value of the easement sought to be condemned. However, BN claimed the value represented that of the easement along with BN’s Memorandum of Understanding or subject to additional compensation for BN’s increased liability. After posting $8,700, MPC requested and was granted an Order of Possession. MPC then commenced construction of the electrical transmission facility. BN moved the court to reconsider this Order. The court denied BN’s motion.

From the District Court’s issuance of the Preliminary Condemnation Order and the Order of Possession, BN appeals.

Standard of Review

Our standard of review is set forth in Y A Bar Livestock Company v. Harkness (1994), [269 Mont. 239], 887 P.2d 1211, 1213, as follows:

This Court reviews the findings of a trial court sitting without a jury to determine if the court’s findings are clearly erroneous. Rule 52(a), M.R.Civ.P. A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

[228]*228Issue I

Did the District Court err when it found an easement through BN’s property was necessary for the intended use and subject to condemnation?

Section 70-30-111, MCA, describes the required proof for a taking by condemnation:

Before property can be taken, the plaintiff must show by a preponderance of the evidence that the public interest requires the taking based on the following findings:
(1) that the use to which it is to be applied is a use authorized by law;
(2) that the taking is necessary to such use;
(3) if already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use;
(4) that an effort to obtain the interest sought to be condemned was made by submission of a written offer and that such offer was rejected.

Electric power lines are a public use authorized by law for the exercise of the right of eminent domain. Section 70-30-102(11), MCA.

In determining if the taking is necessary for the authorized use, BN cites to Montana Power Company v. Bokma (1969), 153 Mont. 390, 398, 457 P.2d 769, 774. In that case, we held necessity means “reasonable, requisite, and proper for the accomplishment of the end in view, under the particular circumstances of the case.” BN argues MPC’s condemned easement over BN’s railroad right-of-way is a greater interest than is necessary for the intended use. BN refers to Silver Bow County v. Hafer (1975), 166 Mont. 330, 333, 532 P.2d 691, 693, where we stated a condemning authority cannot acquire a greater interest or estate in the condemned property than the public use requires. To do so would obligate the public to pay for more than it needs.

BN contends an easement without any restrictions is too great an interest when a wire-line permit will permit the desired use. BN claims a wire-line permit includes the right of entry upon and occupation of land and is a right in land which may be taken for public use. See § 70-30-104(4), MCA. BN offered to MPC a wire-line permit which allowed for the location, construction, operation, maintenance, replacement and removal of MPC’s Great Falls transmission line. MPC rejected this offer.

[229]

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Cite This Page — Counsel Stack

Bluebook (online)
900 P.2d 888, 272 Mont. 224, 52 State Rptr. 625, 49 A.L.R. 5th 951, 1995 Mont. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montana-power-co-v-burlington-northern-railroad-mont-1995.