Montana's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Laws?

  Mont. Code Ann. § 70-30-102 enumerates the public uses for which an entity can exercise the power of eminent domain to condemn in Montana. In addition to having a specific legislative grant to use the power of eminent domain, the condemnor must also prove the use is necessary for the public use. Mont. Code Ann. § 70-30-102. The Montana Supreme Court has held that private property cannot be condemned by any entity for private use. City of Bozeman v. Vaniman (Vaniman II), 271 Mont. 514, 522-23, 898 P.2d 1208, 1214 (1995). Also, the Supreme Court has held that “[p]rivate individuals and corporations, like state agencies, have no inherent power of eminent domain, and their authority to condemn must derive from legislative grant.” McCabe Petroleum Corp. v. Easement & Right-Of Way Across Twp. 12 N., 2004 MT 73, 8, 320 Mont. 384, 87 P.3d 479.

• What Are the Legal Requirements for Exercising the Power?

  Pursuant to Montana law, property can only be condemned if the entity condemning proves:
  

  
  
  1. The future use of the condemned property will be a lawful public use or purpose, which is clearly delineated by statute. Mont. Code Ann. § 70-30- 111(a);
  
  
  2. The use is not a private use. City of Bozeman v. Vaniman (Vaniman I), 264 Mont. 76, 79, 869 P.2d 790, 792 (1994); see also Vaniman II;
  
  
  3. The public interest requires the condemnation of the private property. Mont. Code Ann. § 70-30-111(1)(b);
  
  
  4. The condemnation is the least amount of damages for the greatest good. Mont. Code Ann. § 70-30-110(1); and,
  
  
  5. If the condemned property is being condemned for an easement, that the sought-after easement is the most limited interest in real property necessary for that project. Mont. Code Ann. § 70-30-103(e).
  
  

  
  Prior to entering eminent domain proceedings, the condemnor must have given a final written offer. Mont. Code Ann. § 70-30-111(1)(d). Also, if there is federal money funding the project, the condemnor has to comply with the Fair Treatment of Condemnees Act. Mont. Code Ann. § 70-30-101, et seq.
  
  To learn more about the procedural aspects of eminent domain in Montana, look to Title 70, Chapter 30 et seq.

• What Limitations or Defenses Exist?

  Once an entity has a valid public use as listed in Mont. Code Ann. § 70-30-102, and the entity has attempted to negotiate in good faith to acquire property, and it determines that it cannot acquire the property through negotiation, the entity can file for eminent domain. The property owner can challenge whether it is a valid public use and the condemnor has the burden of proof by a preponderance of evidence to prove all statutory elements for condemnation. Mont. Code Ann. § 70- 30-111(1).

• What Constitutes a Public Purpose?

  Public use is a factual determination that the condemnor must prove by a preponderance of the evidence. A private entity that is not a public utility will have a harder time proving public use than a government or public utility condemnor. The Court found, “in Montana, a public use is a use which confers some benefit or advantage to the public.” Montana Power Co. v. Bokma, 153 Mont. 390, 392-393, 457 P.2d 769 (1969).

• How is Just Compensation Determined?

  Pursuant to statute, the date for determining just compensation is the day the summons is served for condemnation. Mont. Code Ann. § 70-30-302. The measure of just compensation is the difference between the fair market value of the property before and after the condemnation. Id. In addition, just compensation includes the fair market value of any property injuriously affected by the condemnation. Id.

• How Is Fair Market Value Defined?

  Fair market value is not defined by statute. So, the general standard that appraisers use for fair market value is the basis of fair market value in condemnation cases. Appraisers will often use different valuation approaches to determine the value of the property being taken or damaged, the most common being the comparable sales, income and cost approaches.

• What About Recovering Damages to Remaining Property

  In Montana a landowner does have a right to compensation for property injuriously affected by the condemnation. Mont. Code Ann. § 70-30-302.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Pursuant to statute, the landowner is entitled to payment of the necessary expenses of litigation if the landowners prevails, either by the Court not awarding condemnation or if the landowner receives an award greater than the final offer. Mont. Code Ann. § 70-30-305. Necessary expenses are defined as reasonable and necessary attorney fees, expert witness fees, exhibit costs, and court costs. Mont. Code Ann. § 70-30-306.