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Montana's Eminent Domain Laws and Property Rights

Property Rights in the State of Montana

Montana’s property right protections are better in some ways than many other states. In 1975, the State held a convention that determined, pursuant to Montana’s constitutional protections for property rights, that a condemnor had to pay reasonable attorney fees if the condemnee won the case either on liability or if the award beat the condemnor’s final offer, even by one dollar. Also, the State’s statutes are very specific about what is a public use that allows a condemnor to take private property through the eminent domain process.

Meet OCA's Montana Attorney

Hertha L. Lund

Hertha L. Lund is the founder of Lund Law, PLLC and has been fighting for landowner rights for more than 30 years at the national, state and local levels. She has trial experience and has prevailed in numerous high value cases involving property rights. Ms. Lund appears before the Montana Supreme Court, the Federal District Court in Montana, and Ninth Circuit Court of Appeals. In 1995, she clerked for the Chief Judge of the United States Court of Federal Claims in Washington, D.C. Ms. Lund currently serves on the Board of Directors for OCA.

A Summary of Montana's Eminent Domain Laws

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.

REFERENCES AND LINKS

Montana

Lund Law, PLLC
662 Ferguson Avenue, Unit 2
Bozeman, MT 59718
Tel:(406) 586-6254 | Fax:(406) 586-6259
Lund@lund-law.com | www.lund-law.com

Hertha Lund has represented landowners for over 20 years in matters involving eminent domain, property rights, water rights, and wind energy development across the State of Montana. Hertha has argued numerous cases before the Ninth Circuit and the Federal Circuit Court of Appeals, various Federal Circuit Courts, and the District Courts in Montana. She also served as Law Clerk to Chief Judge Loren A. Smith at the U.S. Court of Federal Claims.

While in law school at the University of Montana, Hertha served as Co-Editor-In-Chief of the Montana Law Review. Additionally, she received a Bachelor of Arts in Journalism with a minor in Business Communications from Temple University and studied Animal Science, Range Management, and Pre-Veterinary Medicine at Montana State University. She has served on non-profit boards and is actively involved in the leadership of her church.

Publications

Education

  • University of Montana School of Law, J.D.
  • Temple University, B.A.

Bar Admissions

  • Montana

Hertha Lund has represented landowners for over 20 years in matters involving eminent domain, property rights, water rights, and wind energy development across the State of Montana. Hertha has argued numerous cases before the Ninth Circuit and the Federal Circuit Court of Appeals, various Federal Circuit Courts, and the District Courts in Montana. She also served as Law Clerk to Chief Judge Loren A. Smith at the U.S. Court of Federal Claims.

While in law school at the University of Montana, Hertha served as Co-Editor-In-Chief of the Montana Law Review. Additionally, she received a Bachelor of Arts in Journalism with a minor in Business Communications from Temple University and studied Animal Science, Range Management, and Pre-Veterinary Medicine at Montana State University. She has served on non-profit boards and is actively involved in the leadership of her church.

Publications

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