HOUSE BILL NO. 327
INTRODUCED BY B. WADDILL
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 ARE NECESSARY FOR ACCESS TO PRIVATE PROPERTY; AMENDING SECTIONS 70-30-102 AND 70-30-107, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND 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, 289 Mont. 379, 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; and
WHEREAS, 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 for 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;
(4) canals, aqueducts, flumes, ditches, or pipes conducting water, heat, or gas for the use of the inhabitants of any county, city, or town;
(5) raising projects to raise the banks of streams, removing remove obstructions therefrom from streambanks, and
widening, deepening, or straightening their widen, deepen, or straighten stream channels;
(6) roads, streets, and alleys, controlled-access facilities, and all other public uses for the benefit of any a county, city, or
town or the inhabitants thereof, which may be authorized by the legislature; but the mode of apportioning and collecting the
costs of such improvements shall be such as may be provided in the statutes or ordinances by which the same may be
authorized of a county, city, or town;
(4)(7) wharves, docks, piers, chutes, booms, ferries, bridges, of all kinds, private roads, plank and turnpike roads, and
railroads,;
(8) canals, ditches, flumes, aqueducts, and pipes for public transportation,:
(a) supplying mines, mills, and smelters for the reduction of ores; and
(b) supplying farming neighborhoods with water and drainage; and
(c) reclaiming lands; and for
(d) floating logs and lumber on streams that are not navigable; and
(9) sites for reservoirs necessary for collecting and storing water. However, such reservoir sites must possess a public
use demonstrable to the district court as the highest and best use of the land.
(5)(10) roads, tunnels, ditches, flumes, pipes, and dumping places for working mines, mills, or smelters for the reduction
of ores;
(11) 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;
(12) 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 for the mines, mills, or smelters. However, such the reservoir sites
must possess a public use demonstrable to the district court as the highest and best use of the land.
(6)(13) (a) private roads leading from highways to residences or farms; and
(b) private roads that are necessary to provide access to private property for which other access does not exist;
(7)(14) telephone or electric light electrical energy lines;
(8)(15) telegraph lines;
(9)(16) sewerage of any:
(a) county, city, county, or town or any subdivision thereof of a county, city, or town, whether incorporated or
unincorporated, or of;
(b) any settlement consisting of not less than 10 families; or
(c) of any public buildings belonging to the state or to any college or university;
(10)(17) tramway lines;
(11) electric power lines;
(12)(18) logging railways;
(13)(19) temporary logging roads and banking grounds for the transportation of logs and timber products to public
streams, lakes, mills, railroads, or highways for such a time as that the court or judge may determine;. provided However,
the grounds of state institutions be excepted; may not be used for this purpose.
(14)(20) underground reservoirs suitable for storage of natural gas;
(15)(21) projects to mine and extract ores, metals, or minerals owned by the plaintiff condemnor located beneath or
upon the surface of property where the title to said the surface vests in others. However, the use of the surface of property
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)(22) projects to restore and reclaim lands strip- or underground-mined that were strip-mined 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, but in every case
the. The necessity of the road and the amount of all damage to be sustained by the opening thereof shall of the road must be
first determined by a court sitting with or without a jury., and such The amount of all damages, together with the expenses
of the proceeding, shall must be paid by the person to be benefited 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, offer 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."
NEW SECTION. Section 3. Effective date. [This act] is effective on passage and approval.
NEW SECTION. Section 4. Retroactive applicability. [This act] applies retroactively, within the meaning of 1-2-109, to parcels of private land for which access does not exist, regardless of the time that the parcel was created.
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