Helena Val. Irr. Dist. v. State Highway Commission

• Court: Montana Supreme Court
• Writing for the Court: JAMES T. HARRISON; CASTLES
• Citation: Helena Val. Irr. Dist. v. State Highway Commission, 433 P.2d 791, 150 Mont. 192 (Mont. 1967)
• Decision Date: 06 December 1967
• Docket Number: No. 11211,11211
• Parties: HELENA VALLEY IRRIGATION DISTRICT, Plaintiff and Appellant, v. STATE HIGHWAY COMMISSION et al., Defendants and Respondents.

Page 791

433 P.2d 791

150 Mont. 192

HELENA VALLEY IRRIGATION DISTRICT, Plaintiff and Appellant, v. STATE HIGHWAY COMMISSION et al., Defendants and Respondents.

No. 11211.

Supreme Court of Montana.

Submitted Sept. 14, 1967.

Decided Nov. 1, 1967.

Rehearing Denied Dec. 6, 1967.

Small & Cummins and Carl Hatch, Floyd O. Small (argued), Robert T. Cummins (argued), Helena, for appellant.

Herron & Reber, Clayton Herron (argued), Helena, for respondents.

JAMES T. HARRISON, Chief Justice.

This is an appeal by the plaintiff, Helena Valley Irrigation District, hereafter called District, from an adverse judgment in a declaratory judgment action. The action was brought for a determination of plaintiff's rights to recover a portion of future operation and maintenance assessments from the defendant, State Highway Commission, hereafter called Commission, when it exercises the power of eminent domain to take land within the irrigation district. The action was submitted on an agreed statement of facts and a stipulation as to the issues of law to be decided. The district court, sitting without a jury, found for the defendant Commission.

The plaintiff is an irrigation district organized pursuant to Chapter 12 of Title 89, Revised Codes of Montana 1947.

The plaintiff levies and assesses special assessments or taxes on the basis of the number of acres included within the district. The amounts are used to pay off indebtedness of the district and to pay the costs of operation and maintenance. When a reduction in the number of irrigable acres occurs then the per acre cost of operation and maintenance increases.

The defendant condemned land within the District and has paid the persons owning the land the value thereof and other damages incurred by the owners as a result of the taking. The takings have reduced the total irrigable acreage of the District. The defendant has refused to pay to plaintiff any amounts for annual operation and maintenance expenses attributable to the lands taken. It has paid the proportionate share of unpaid construction costs of the District attributable to the lands and the District is not claiming in this suit compensation for lands taken which were owned by it.

The parties stipulated that the following are the issues of law to be decided in this action.

Where the State of Montana, acting by and through the State Highway Commission, takes lands within an irrigation district, is the State of Montana legally obligated to pay to the said irrigation district any levy, assessment or proportionate share of the annual operation and maintenance expenses of the district incurred after such taking, or any amount whatsoever based on such operation and maintenance costs, in addition to the compensation paid to individual landowners whose lands are so taken?

In such circumstances, is the State of Montana obligated to pay any compensation or damages, to the irrigation district, for such financial loss as said district may sustain by additional operation and maintenance costs, and costs or expenses incidental thereto, resulting from the construction of highways for which said lands are taken by the State of Montana, acting by and through the Commission, in addition to the compensation paid to the individual landowners whose lands are so taken?

The lower court answered the first issue in the negative and in the exercise of its discretion refused to rule on the second. The basis for the court's discretion was that no decree would terminate the controversy or remove the uncertainty involved.

The plaintiff's position is that the refusal by the Commission to pay future operation and maintenance assessments, and the other damages claimed, is an unconstitutional taking or damaging of property without first giving just compensation. The plaintiff further contends that R.C.M.1947, § 32-1615.1 requires the payment of the operation and maintenance assessments. This section provides:

'Compensation for irrigable lands rendered unusable. Whenever the state highway commission constructs a highway through an irrigation or drainage project or district and acquires under eminent domain, or otherwise, irrigable land for highway purposes, or so acquires land for such purposes which acquisition renders other irrigable land unusable for irrigation, the state highway commission shall pay to the owner of the irrigation or drainage project, or to the irrigation or drainage district, in addition to any other sums allowed by law, a proportionate share of the unpaid construction costs of the project or the district, if any, for the irrigable land so acquired, or such irrigable land rendered unusable for irrigation.'

This statute has been repealed and replaced in 1965 by section 32-3916, R.C.M.1947, which provides:

'Rendering irrigable lands unusable-unpaid construction costs. Whenever the commission acquires irrigable land for highway purposes, or so acquires land as to render other irrigable land unusable for irrigation, it shall pay to the owner of the irrigation or drainage project, in addition to other sums allowed by law, a proportionate share of the unpaid construction costs of the project or drainage district.'

Turning first to the contention that there has been an unconstitutional taking or a violation of a constitutional right, we note that the plaintiff is essentially a marketing and service organization. It claims it has a property right in the right to collect from the lands in its district the annual operation and maintenance charges. It terms this constitutional right a right of 'equitable distribution of costs.'

Absent, however, the existence of statutes or an agreement to the contrary, this court cannot see that there is a constitutional right for a seller of goods or services to be paid when no goods or services can be delivered. The plaintiff has cited only one case purporting to support such a result.

In State of Wash. v. Human Relations Research Foundation, 64 Wash.2d 262, 391 P.2d 513 (1964), the Washington Court uses language at one point which says that operation and maintenance assessments are a property interest 'for which the respondent district is entitled compensation'. However, the State of Washington has a statute requiring the payment of operation and maintenance expenses which is the basis for that decision. We cannot agree with the Washington Court to the extent, if any, that they relied on the theory of an unconstitutional taking to arrive at their decision rather than on their state statutes. Plaintiff cites the following cases in support of his theory of an unconstitutional taking. Town of Clarksville, Va. v. United States, 198 F.2d 238 (4th Cir. 1952); United States v. Chicago B. & Q. R. Co., 82 F.2d 131 (8th Cir.); United States v. 31.07 Acres of Land, 189 F.Supp. 845 (D.C.Mont.1960) (leasehold); Goodyear Farms v. United States, 241 F.2d 484 (9th Cir.) (easement). In all these cases the claimant was the owner of the property taken or destroyed and the action was to recover all the damages resulting therefrom.

Jefferson County, Tenn. v. T.V.A., 146 F.2d 564 (6th Cir.); United States v. Wheeler Tp., 66 F.2d 977 (8th Cir.) and Town of Bedford v. United States, 23 F.2d 453, 56 A.L.R. 360 (1st Cir.) are also cited by plaintiff. These actions were for damages for the taking of roads and were all maintained by the holder of the proprietary interest in the roads.

All the above cases are distinguished from the case at bar in that they...