HOUSE BILL NO. 355

INTRODUCED BY L. TAYLOR

A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING THAT IN AN EMINENT DOMAIN PROCEEDING, IT IS REBUTTABLY PRESUMED THAT AN EASEMENT FOR A PRIVATE PERSON OR ENTITY IS SUFFICIENT TO ACCOMPLISH THE USE AND THAT A PRIVATE PERSON OR ENTITY CLAIMING THAT A GREATER INTEREST THAN AN EASEMENT IS NECESSARY TO ACCOMPLISH THE USE SHALL SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE GREATER INTEREST THAT IS SOUGHT IS NECESSARY TO ACCOMPLISH THE USE; CLARIFYING THAT AN EASEMENT IS LIMITED TO THE PURPOSE FOR WHICH IT IS GRANTED; PROVIDING THAT A CONDEMNEE IS NOT LIABLE IN TORT FOR THE CONDEMNOR'S ACTIONS OR OMISSIONS IN REGARD TO THE CONDEMNOR'S USE OF THE PROPERTY; AMENDING SECTIONS 70-30-111 AND 70-30-309, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."

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

NEW SECTION. Section 1. Limitation on condemnee's tort liability. A condemnee is not liable in tort for the actions or omissions of the condemnor or the condemnor's employees, agents, or licensees in regard to their use of the property.

Section 2. Section 70-30-111, MCA, is amended to read:

"70-30-111. Facts necessary to be found before condemnation. Before property may be taken, the plaintiff shall 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 the use. It is rebuttably presumed that an easement for a private person or entity is sufficient to accomplish the use. A private person or entity claiming that a greater interest than an easement is necessary to accomplish the use shall show by clear and convincing evidence that the greater interest that is sought is necessary to accomplish the 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 the offer was rejected."

Section 3. Section 70-30-309, MCA, is amended to read:

"70-30-309. Final order of condemnation -- contents -- vesting upon filing. (1) When payments have been made and the bond given, if the plaintiff elects to give one, as required by 70-30-307 and 70-30-308, the court shall make a final order of condemnation, which must describe the property condemned and the purposes of the condemnation. An order granting an easement to a private person or entity must limit the use of the easement to the purposes for which the easement was requested.

(2) A copy of the order must be filed in the office of the county clerk and recorder, and the property described in the order must vest in the plaintiff for the purposes specified in the order."

NEW SECTION. Section 4. Effective date. [This act] is effective on passage and approval.

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