HOUSE BILL NO. 28

INTRODUCED BY NOENNIG M

A BILL FOR AN ACT ENTITLED: "AN ACT REVISING THE LAWS RELATING TO PRIVATE CONDEMNATION PROCEEDINGS FOR THE OPENING OF PRIVATE ROADS OVER PRIVATE LANDS; PROVIDING THAT THE PUBLIC USES ON BEHALF OF WHICH THE RIGHT OF EMINENT DOMAIN MAY BE EXERCISED INCLUDE PRIVATE ROADS THAT HAVE BEEN HISTORICALLY USED AND THAT ARE NECESSARY FOR ACCESS TO PRIVATE PROPERTY; AMENDING SECTIONS 70-30-102 AND 70-30-107, MCA; AND PROVIDING A RETROACTIVE APPLICABILITY DATE."

WHEREAS, many owners of landlocked property in the State of Montana lack legal access to that property although there has been historical access across other private property, and their property is not marketable as a result; and

WHEREAS, many of these owners have not established prescriptive rights to access because, as the Montana Supreme Court has held, the use of a neighbor's land based on mere neighborly accommodation or courtesy cannot ripen into a prescriptive easement (see Public Lands Access Association, Inc. v. Boone & Crockett Club Foundation, Inc., 259 Mont. 279, 856 P. 2d 525 (1993)); and

WHEREAS, such owners do not have an easement by necessity over a neighbor's land unless there was previously a common ownership with the neighbor's land and a severance giving rise to the necessity (see Schmid v. McDowell, 199 Mont. 233, 649 P.2d 431 (1982)); and

WHEREAS, pursuant to section 70-30-102, MCA, such owners cannot condemn and pay for a private road unless it leads from highways to residences or farms, regardless of the value of the access and regardless of the amount that the landlocked owner offers to pay; and

WHEREAS, the Montana Supreme Court has limited rights of private condemnation of access roads to cases in which the owner's land is presently being used as a farm or residence (see Groundwater v. Wright, 180 Mont. 27, 588 P.2d 1003 (1979)), and the Montana Supreme Court has further limited condemnation rights by defining "farm" as land cultivated for purposes of agricultural production (see Richter v. Rose, 1998 MT 165, __Mont.___, 962 P.2d 583 (1998)); and

WHEREAS, the owner seeking to establish the road by condemnation is responsible to pay a neighboring landowner's necessary expenses of litigation, including attorney fees and expert witness fees, whether the road is opened or not (see Callant v. Federal Land Bank of Spokane, 181 Mont. 400, 593 P.2d 1036 (1979)); and

WHEREAS, as a result, current law narrowly limits the availability of legal access over roads to landlocked properties even when there is a history of use of the road and assesses all litigation expenses to owners who are willing to pay fair market value for necessary access regardless of who prevails in the litigation.

THEREFORE, the Legislature of the State of Montana finds it appropriate to provide for private condemnation of necessary access roads to landlocked property when the use of such roads is historical, but not prescriptive, and to provide a procedure that encourages payment of fair market value for access without resort to litigation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 70-30-102, MCA, is amended to read:

"70-30-102. Public uses enumerated. Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses:

(1) all public uses authorized by the government of the United States;

(2) public buildings and grounds for the use of the state and all other public uses authorized by the legislature of the state;

(3) public buildings and grounds for the use of any county, city or town, or school district; canals, aqueducts, flumes, ditches, or pipes conducting water, heat, or gas for the use of the inhabitants of any county, city, or town; raising the banks of streams, removing obstructions from streambanks, and widening, deepening, or straightening stream channels; roads, streets, and alleys and all other public uses for the benefit of any county, city, or town or the inhabitants thereof, which may be authorized by the legislature; however, the method of apportioning and collecting the costs of the improvements must be the method that may be provided in the statutes or ordinances by which the improvements may be authorized;

(4) wharves, docks, piers, chutes, booms, ferries, bridges, of all kinds, private roads, plank and turnpike roads, railroads, canals, ditches, flumes, aqueducts, and pipes for public transportation, supplying mines, mills, and smelters for the reduction of ores and farming neighborhoods with water and drainage and reclaiming lands and for floating logs and lumber on streams not navigable and sites for reservoirs necessary for collecting and storing water. However, reservoir sites must possess a public use demonstrable to the district court as the highest and best use of the land.

(5) roads, tunnels, ditches, flumes, pipes, and dumping places for working mines, mills, or smelters for the reduction of ores; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines, mills, and smelters for the reduction of ores; also an occupancy in common by the owners or the possessors of different mines of any place for the flow, deposit, or conduct of tailings or refuse matter from their several mines, mills, or smelters for reduction of ores and sites for reservoirs necessary for collecting and storing water. However, reservoir sites must possess a public use demonstrable to the district court as the highest and best use of the land.

(6) (a) private roads leading from highways to residences or farms; and

(b) private roads, over private property, that are necessary to provide access to private property and that have been historically used for access for a period of time not less than that required to establish title by prescription;

(7) telephone or electric light lines;

(8) telegraph lines;

(9) sewerage of any city, county, or town or any subdivision thereof, whether incorporated or unincorporated, or of any settlement consisting of not less than 10 families or of any public buildings belonging to the state or to any college or university;

(10) tramway lines;

(11) electric power lines;

(12) logging railways;

(13) temporary logging roads and banking grounds for the transportation of logs and timber products to public streams, lakes, mills, railroads, or highways for a time that the court or judge may determine; however, the grounds of state institutions are excepted;

(14) underground reservoirs suitable for storage of natural gas;

(15) to mine and extract ores, metals, or minerals owned by the plaintiff located beneath or upon the surface of property when the title to said surface vests in others. However, the use of the surface for strip mining or open-pit mining of coal (i.e., any mining method or process in which the strata or overburden is removed or displaced in order to extract the coal) is not a public use, and eminent domain may not be exercised for this purpose;

(16) to restore and reclaim lands strip- or underground-mined for coal and not reclaimed in accordance with Title 82, chapter 4, part 2, and to abate or control adverse affects of strip or underground mining on those lands."

Section 2. Section 70-30-107, MCA, is amended to read:

"70-30-107. Private roads. (1) Private roads may be opened in the manner prescribed by this chapter. The necessity of the road and the amount of all damage to be sustained by the opening of the road must be determined by a court sitting with or without a jury. The amount of all damages, if any, must be paid by the condemnor. If the condemnee prevails, the condemnor shall also pay the condemnee's necessary expenses of litigation.

(2) Before a condemnor may commence a condemnation action under this section, the condemnor shall, in writing, tender to the condemnee an amount equal to or greater than the current fair market value of the easement, as determined by a certified real estate appraiser, as an offer of payment for the easement. An action may not be commenced under this section less than 60 days after the tender is made. If the condemnee fails to timely accept the offer and grant the easement to the condemnor, the offer is considered withdrawn and evidence of the offer will not be admissible at the trial except to determine whether or not the condemnor prevails. If the condemnor succeeds in opening a private road over the condemnee's property and the amount of all damages to be sustained by the opening of the road, as determined by the court, is equal to or less than the tendered amount, the condemnor shall pay only the amount of damages and not the condemnee's necessary expenses of litigation.

(3) For purposes of this section, a condemnee is considered to prevail if the condemnor fails to establish the right to open the road or, if the road is opened, the court awards damages in an amount in excess of the amount tendered in subsection (2).

(4) For purposes of this section:

(a) "necessary expenses of litigation" means reasonable and necessary attorney fees, expert witness fees, exhibit costs, and court costs;

(b) "reasonable and necessary attorney fees" are the customary hourly rates for an attorney's services in the county in which the trial is held. Reasonable and necessary attorney fees must be computed on an hourly basis and may not be computed on the basis of any contingent fee contract.

(c) reasonable and necessary expert witness fees may not exceed the customary rate for the services of a witness of that expertise in the county in which the trial is held."

NEW SECTION. Section 3. Retroactive applicability. [This act] applies to actions filed on or after [the effective date of this act] and applies retroactively, within the meaning of 1-2-109, to use of property occurring before [the effective date of this act].

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