City of Helena v. Rogan

• Decision Date: 21 July 1902
• Citation: City of Helena v. Rogan, 27 Mont. 135, 69 P. 709 (Mont. 1902)
• Parties: CITY OF HELENA v. ROGAN et al.
• Court: Montana Supreme Court

69 P. 709

27 Mont. 135

CITY OF HELENA v. ROGAN et al.

Supreme Court of Montana

July 21, 1902

Petition for rehearing.Denied.

For former opinion, see68 P. 798.

MILBURN J.

This cause is before us on motion of the appellant for a rehearing.It is contended that we erred in what is held in the opinion (26 Mont. --, 68 P. 798) respecting the necessity of sufficiently describing the property to be taken.We have carefully considered the able brief of counsel, but do not see any reason why we should modify anything we have said upon this matter.

A question was submitted in the briefs of counsel which was not discussed in the opinion, and we are asked to pass upon it now.It is this: Is it necessary to allege and prove that before beginning suit to condemn the property, appellant endeavoredto obtain the consent of the several defendants to take the same for the intended purpose?The laws of this state as they are now, and were when the suit was commenced do not and did not require such an allegation to be made.In the absence of any authority supporting any contention that such allegation or proof must be made, and there being no such requirement in our Code as amended by the session laws we hold that it is not necessary to allege or prove that appellant negotiated with the defendants for a cession to it of the property which it seeks to obtain under the law of eminent domain.There are many authorities which hold that such an allegation, with proof if the allegation be traversed by answer, is necessary to be made; but such authorities seem all to be in states where laws require such attempts to obtain the consent of the owners to be made prior to suit; we find none which hold thus in the absence of such requirement of statute.Upon principle, we do not see that such allegation or proof need be made.The owner of the property owes no duty to the would-be taker thereof.He therefore cannot be put in the wrong.No tender is necessary.He cannot be taxed with costs.If the suit be just, and plaintiff prevail, then the law presumes that a just and reasonable compensation will be made to each owner under the direction of the court.The case of Glass v. ConcentratingCo.,22 Mont. 151, 55 P. 1047, cited contra, is not in point, as that case was decided under the law, then in force, requiring a mine owner, under section 1497, of the fifth division of the Complied Statutes of 1887, to make an attempt to come to anagreement with the owner of certain land over which he wished to run a ditch, before he could exercise his right to construct such ditch over the land, against the will of the owner, in the way provided by law.In the case before us there is notnow as we have said, any such condition precedent to the bringing of the suit to condemn.The Political Code of 1895(section 4800), prescribing the power of cities, was amended by House BillNo. 203(Sess. Laws...