HOUSE BILL NO. 354
INTRODUCED BY M. LINDEEN
A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING THAT A PRIVATE PERSON OR ENTITY TAKING PROPERTY BY EMINENT DOMAIN MAY NOT TAKE POSSESSION OF THE PROPERTY UNTIL ALL RIGHTS OF APPEAL HAVE BEEN EXHAUSTED UNLESS THE LANDOWNER AGREES TO THE POSSESSION AT AN EARLIER POINT IN TIME; AMENDING SECTIONS 70-30-311 AND 70-30-312, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Putting private person or entity in possession. (1) After the filing of the preliminary condemnation order or after the report and assessment of the commissioners have been made and filed in the court and after all appeals from the assessment or from any other order or judgment in the proceedings have been exhausted, the court, upon application of a plaintiff who is a private person or entity, may order that upon payment into court for the defendant of the amount of compensation claimed by the defendant in the statement of claim of just compensation under 70-30-207 or of the amount assessed either by the commissioners or by the jury or on an appeal, as the case may be, the private person or entity may:
(a) if, under an agreement with the defendant, the private person or entity is already in possession of the property of the defendant sought to be appropriated, continue in possession; or
(b) if not in possession, take possession of the property.
(2) If the defendant fails to file a statement of claim of just compensation within the time specified in 70-30-207, the private person or entity may obtain an order for possession provided for in subsection (1), subject to the condition subsequent that a private person or entity's payment into court must be made within 10 days of receipt of the defendant's statement of claim.
(3) The amount assessed by the commissioners or by the jury on appeal constitutes, for the purposes of this section, unless reassessed or changed in further proceedings, just compensation for the property. The private person or entity, by payment into court of the amount claimed in the answer or the amount assessed, is not precluded from appealing from the assessment in the same manner and with the same effect as if money had not been deposited. If the private person or entity deposits the amount of the assessment and there is no dispute as to the ownership of the property, the defendant may at any time demand and receive upon order of the court all or any part of the deposited money without being barred from appealing the assessment. If the amount of the assessment is finally reduced on appeal by either party, a defendant who has received all or any part of the amount deposited is liable to the private person or entity for any excess of the amount received by the defendant over the amount finally assessed, with legal interest on the excess from the time that the defendant received the money deposited. On appeal from an assessment to a jury, the jury may find a lesser or equal or greater amount than that assessed by the commissioners. The court may not order the delivery to a defendant of more than 75% of the money deposited on the defendant's account except upon posting of bond by the defendant equal to the amount in excess of 75%, with sureties approved by the court, to repay the private person or entity any amounts withdrawn in excess of the defendant's final award in the proceedings.
Section 2. Section 70-30-311, MCA, is amended to read:
"70-30-311. Putting plaintiff public officer or entity in possession. (1) At any time after the filing of the preliminary
condemnation order or after the report and assessment of the commissioners have been made and filed in the court and
either before or after appeal from such the assessment or from any other order or judgment in the proceedings, the court,
upon application of the a plaintiff shall have power to make an who is a public officer or public entity, may order that, upon
payment into court for the defendant entitled thereto of the amount of compensation claimed by the defendant in his the
statement of claim of just compensation under 70-30-207 or of the amount assessed either by the commissioners or by the
jury or on an appeal, as the case may be, the plaintiff be authorized public officer or entity may:
(a) if already in possession of the property of such the defendant sought to be appropriated, to continue in such
possession; or
(b) if not in possession, to take possession of such the property and use and possess the same property during the
pendency and until the final conclusion of the proceedings and litigation and order that all actions and proceedings against
the plaintiff on account thereof public officer or entity be stayed until such time the final conclusion of the proceedings.
(2) If the defendant fails to file a statement of claim of just compensation within the time specified in 70-30-207, the
plaintiff public officer or entity may obtain an order for possession provided for in subsection (1), subject to the condition
subsequent that a plaintiff's public officer's or entity's payment into court shall must be made within 10 days of receipt of
the defendant's statement of claim.
(3) However, where an appeal is taken by such If the defendant appeals, the court may, in its discretion, require the
plaintiff public officer or entity before continuing or taking such possession, in addition to paying into court the amount
assessed, to give bond or undertaking with sufficient sureties to be approved by the court and to be in such sum as an
amount directed by the court may direct, conditioned to pay the defendant any additional damages and costs over and above
the amount assessed, which it may finally be determined that the defendant is entitled to for the appropriation of the
property, and all damages which that the defendant may sustain if for any cause such the property shall not be is not finally
taken for public uses.
(4) The amount assessed by the commissioners or by the jury on appeal, as the case may be, shall be taken and
considered constitutes, for the purposes of this section, until unless reassessed or changed in the further proceedings, as just
compensation for the property appropriated; but the plaintiff. The public officer or entity, by payment into court of the
amount claimed in the answer or the amount assessed or by giving security as above provided in this section, shall is not be
thereby prevented or precluded from appealing from such the assessment but may appeal in the same manner and with the
same effect as if no money had not been deposited or security given. In all cases where If the plaintiff public officer or
entity deposits the amount of the assessment and continues in possession or takes possession of the property, as herein
provided, the defendant entitled thereto, if and there be is no dispute as to the ownership of the property, the defendant may
at any time demand and receive upon order of the court all or any part of the money so deposited and shall not by such
demand or receipt be money without being barred or precluded from his right of appeal from such appealing the assessment
but may, notwithstanding, take and prosecute his appeal from such assessment; provided that. if If the amount of such the
assessment is finally reduced on appeal by either party, such a defendant who has received all or any part of the amount
deposited shall be is liable to the plaintiff public officer or entity for any excess of the amount so received by him the
defendant over the amount finally assessed, with legal interest on such the excess from the time such that the defendant
received the money deposited, and the same may be recovered by action; and provided, further, that upon any. On appeal
from assessment by the commissioners to a jury, the jury may find a less as well as an lesser or equal or greater amount
than that assessed by the commissioners; and provided, further, that the. The court shall may not order the delivery to any a
defendant of more than 75% of the money deposited on his the defendant's account except upon posting of bond by such
the defendant equal to the amount in excess of 75%, with sureties to be approved by the court, to repay to the plaintiff such
public officer or entity any amounts withdrawn as are in excess of his the defendant's final award in the proceedings."
Section 3. Section 70-30-312, MCA, is amended to read:
"70-30-312. Appeal to supreme court. (1) The plaintiff or defendant or any party interested in the proceedings can
may appeal to the supreme court from any finding or judgment made or rendered under this chapter, as in other cases.
(2) Such The appeal does not stay any further proceedings under this chapter, except that a plaintiff who is a private
person or entity may not take possession of the property or of an interest in the property until final judgment on appeal in
any court and except that the district court on motion or ex parte may grant a stay for such a period of time and under such
conditions as that the court deems considers proper."
NEW SECTION. Section 4. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 5. Effective date. [This act] is effective on passage and approval.
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Latest Version of HB 354 (HB0354.01)
Processed for the Web on January 22, 1999 (4:33PM)
New language in a bill appears underlined, deleted material appears stricken.
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Status of this Bill
| 1999 Session | Leg. Branch HomePrepared by Montana Legislative Services
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