State v. Aitchison

• Decision Date: 15 March 1934
• Docket Number: 7217.
• Citation: 30 P.2d 805,96 Mont. 335
• Parties: STATE et al. v. AITCHISON et al.
• Court: Montana Supreme Court

30 P.2d 805

96 Mont. 335

STATE et al. v. AITCHISON et al.

No. 7217.

Supreme Court of Montana

March 15, 1934

Appeal from District Court, Custer County; S.D. McKinnon, Judge.

Action by the State of Montana, the State Fish and Game Commission and others against Christina Aitchison and another. From a judgment of dismissal, plaintiffs appeal.

Affirmed.

Raymond T. Nagle, Atty. Gen., and Rudolph Nelstead and W. B. Leavitt both of Miles City, for appellants.

George W. Farr, of Miles City, for respondents.

ANDERSON Justice.

Plaintiffs commenced this action to condemn a site for the purpose of creating, constructing, installing, flooding, and maintaining a rearing pond in which to plant, propagate, and raise fish.

The defendant Aitchison is the owner of the land sought to be condemned. The defendant Western is the holder of a mortgage on these premises. After the service of summons and on the return day thereof, the defendants appeared in person without counsel, when a hearing was had and testimony received in support of the complaint. Thereafter the district court made and filed its interlocutory judgment and order appointing commissioners. The commissioners qualified, and later made their report to the court fixing the defendants' compensation for the taking of their property in the sum of $725. Plaintiffs appealed to the district court from the award of damages as reported by the commissioners. Subsequently plaintiffs paid the amount of the award into court and secured an order authorizing them to take possession of the land in question. Thereupon defendants employed counsel, who moved the court to vacate and annul the order authorizing plaintiffs to take possession, on the ground that the court did not have jurisdiction to make the order or any judgment or decree, because the complaint did not state facts sufficient to constitute a cause of action in that the use for which the property was sought to be appropriated was not a public use within the meaning of the laws of the state. This motion was heard and granted by the district court. A judgment of dismissal was entered. The appeal is from the judgment. Error is assigned in the granting of the motion to vacate the order for possession, and rendering and entering the judgment of dismissal.

Plaintiffs concede that a jurisdictional question may be raised at any time, and also that authority to condemn must be expressly given or necessarily implied. State ex rel. McLeod v. District Court, 67 Mont. 164, 215 P. 240, 242. They also concede that authority to condemn in this particular case is not expressly granted in the statutes enumerating the powers of the state fish and game commission, but contend that authority to condemn these lands is necessarily implied from certain statutory and constitutional provisions, which will be presently discussed.

The defendants argue that under these statutory and constitutional provisions the power to condemn is not necessarily implied, and, therefore, the trial court was without jurisdiction to make any order or judgment for the condemnation of the property in question.

The statutes necessary to be considered in solution of this question are as follows:

Section 9933, Rev. Codes 1921, defines eminent domain: "Eminent domain is the right of the state to take private property for public use." Section 9934 provides: "Subject to the provisions of this chapter [the procedure provided for condemnation proceedings], the right of eminent domain may be exercised in behalf of the following public uses: *** 2. Public buildings and grounds for the use of the state, and all other public uses authorized by the legislative assembly of the state."

Section 3653, Id., as amended by section 2, chapter 192, of the Laws of 1925, sets forth the powers and duties of the game and fish commission of Montana, and, among other things, provides as follows: "It shall have authority to locate, lay out, construct and maintain nurseries and rearing ponds where fry can be planted, propagated and reared, and when of suitable sizes, liberated and distributed in the waters of this State, and may expend from the State Fish and Game Funds such sums as may be necessary for this purpose." Also, in the same section, page 374 (chapter 192), appears the following: "Said Commission shall, in addition to the powers heretofore granted, have such other and further powers as may be necessary to fully carry out the purpose and intent of all the laws pertaining to fish, game, and fur-bearing animals, game and non-game bird propagation, protection, conservation, and management of this Act."

Section 30, Rev. Codes 1921, provides: "The state may acquire or authorize others to acquire title to property, real or personal, for public use, in the cases and in the modes provided in sections 9933 to 9958 of these codes."

Plaintiffs argue that, since the fish and game commission has express power to lay out, construct, and maintain rearing ponds for the propagation of fish, and such further powers as may be necessary to carry out that purpose, and since subdivision 2 of section 9934, supra, enumerating the public uses in behalf of which the right of eminent domain may be exercised, specifies buildings and grounds for the use of the state, of necessity, by implication, the power to bring condemnation proceedings is conferred upon the commission for the purpose of condemning a site for a rearing pond.

All the above statutory provisions are silent on the subject of the right of the commission to exercise the power of eminent domain. This court in the case of State ex rel. McLeod v. District Court, supra, quoted with approval from Lewis on Eminent Domain (3d Ed.) § 371, as follows: "The authority to condemn must be expressly given or necessarily implied. The exercise of the power being against common right, it cannot be implied or inferred from vague or doubtful language, but must be given in express terms or by necessary implication. When the right to exercise the power can only be made out by argument and inference, it does not exist." All of our decisions have been in accord with the foregoing quotation. State ex rel. McMaster v. District Court, 80 Mont. 228, 260 P. 134; Helena Power Transmission Co. v. Spratt, 35 Mont. 108, 88 P. 773, 8 L. R. A. (N. S.) 567, 10 Ann. Cas. 1055.

Since the statutes mentioned are silent on the subject, and the powers given to the commission by them can be exercised without resort to condemnation, it is presumed that the Legislature intended that the necessary property should be acquired by contract. Lewis on Eminent Domain (3d Ed.) § 371; State ex rel. Wauconda Inv. Co. v. Superior Court, 68 Wash. 660, 124 P. 127, Ann. Cas. 1913E, 1076; Pennsylvania Tel. Co. v. Hoover, 209 Pa. 555, 58 A. 922; Chamberlain v. Elizabethport Cordage Co., 41 N. J. Eq. 43, 2 A. 775; Leeds v. City of Richmond, 102 Ind. 372, 1 N.E. 711.

Counsel for plaintiffs have invited our attention to, and rely upon, the case of City of Albuquerque v. Huning, 29 N.M. 590, 225 P. 580. There a proceeding was brought to condemn a site for a park lying without the boundaries of the municipality. Under the existing statutory law the city enjoyed the general power to condemn property for park purposes. It also was empowered thereby to acquire by purchase, gift, or donation property for park purposes lying without its boundaries. The only right necessary to be there implied in order to sustain the right by implication was the right to condemn property lying without the boundaries of the municipality. Under our statutes now before us, the power to exercise the right of eminent domain is not granted to the plaintiff commission expressly in any circumstances. It is only authorized to lay out, construct, and maintain rearing ponds. The distinction between the two cases is marked, and we are unable to see wherein the New Mexico case supports the contention of plaintiffs.

The...