Montana Power Co. v. Bokma

• Decision Date: 07 August 1969
• Docket Number: No. 11671,11671
• Citation: 153 Mont. 390,457 P.2d 769
• Parties: The MONTANA POWER COMPANY, a Montana Corporation, Plaintiff and Respondent, v. William BOKMA et al., Defendants and Appellants.
• Court: Montana Supreme Court

Page 769

457 P.2d 769

153 Mont. 390

The MONTANA POWER COMPANY, a Montana Corporation, Plaintiff and Respondent, v. William BOKMA et al., Defendants and Appellants.

No. 11671.

Supreme Court of Montana.

Aug. 7, 1969.

Graybill, Graybill & Ostrem, Gregory Warner (argued), LaRue Smith, Great Falls, for appellants.

William H. Coldiron, J. J. Burke, Jr., Butte, Jardine, Stephenson, Blewett & Weaver, John H. Weaver (argued), Great Falls, for respondent.

HASWELL, Justice.

This case is a condemnation proceeding instituted by plaintiff Montana Power Company to acquire a right-of-way easement across defendants' lands for the purpose of constructing an electric power transmission line. From the preliminary order of condemnation entered by the district court, defendants appeal.

Plaintiff Montana Power Company is a public utility engaged in the production, distribution and salw of electric power. Defendants are owners and occupiers of agricultural land located generally northwest of Conrad, Montana. Plaintiff utility seeks to construct a 115 KV electric power transmission line from Great Falls to a point south of Cut Bank, Montana where the Continental Pipe Line Company, a common carrier of crude oil transported through a pipeline system, operates a pumping station.

The construction of the electric power line essentially involves placing 'H-type' double pole structures in the ground to carry the wires. These structures are to be placed at an average interval of about 750 feet, although the spacing intervals vary somewhat with the terrain and at some points three poles with supporting guy wires are contemplated. A distance of 10 1/2 feet separates the two poles in each double pole structure.

Between Conrad and Continental's pumping station, plaintiff seeks to acquire by condemnation an easement on a 60 foot strip running across defendant's lands for construction of this power line.

Early in 1968, plaintiff utility was contacted by personnel of the Continental Pipe Line Company in regard to furnishing electrical power for their pumping station south of Cut Bank. Negotiations culminated in a written agreement generally comprehending substantial amounts of electrical power to be furnished by plaintiff utility. The 115 KV power line was planned (1) to furnish these power requirements of Continental Pipe Line Company, (2) to meet the anticipated increasing power needs of the Conrad, Choteau, and Valier areas, arising from normal growth, and (3) because of the possibility of an interconnection with electrical lines of the Bureau of Reclamation and Glacier Electric Co-operative. At the present time the power line from Conrad northwest to its terminus at Continental's pumping station south of Cut Bank will serve only Continental, but service from that line is available to other customers should such service be required.

The four cases concerning the landowners heretofore mentioned were consolidated for hearing on the issue of public use and necessity. Hearing was held in the district court of Pondera County before the Hon. Victor H. Fall, district judge presiding. The district court entered findings to the effect that plaintiff has the right to acquire property by eminent domain; that the use for which the property was sought is a public use; that the taking is necessary to such use; that the public interest requires such taking; and that the electric power transmission line has been located in a manner and along a route most compatible with the greatest public good and the least private injury. Based upon those findings, the district court entered its preliminary order of condemnation.

Subsequently plaintiff utility deposited in court the amounts claimed by defendants and secured an order from the district court placing it in possession of the condemned property during the pendency of the action. Defendants now appeal from the district court's preliminary order of condemnation.

Upon appeal defendant landowners assign four issues for review which can be summarized as follows:

(1) Is the proposed taking for a public use?

(2) Is the proposed taking necessary for such use?

(3) Is the proposed taking compatible with the greatest public good and the least private injury?

(4) Does the proposed taking deprive the landowners of 'due process' as required by the Federal and State Constitutions?

The gist of the landowners' contention on the first issue is that the proposed taking is to provide electric power and service to a single customer; as such it is a taking for a private use and not a public use; and a taking for a private use will not support eminent domain proceedings. Alternatively they argue that the contract for furnishing power by plaintiff utility to Continental Pipe Line Company is illusory and does not require plaintiff utility to furnish power even to that one customer.

Condemnation proceedings by a public utility for the purpose of construction of an electrical power transmission line has been authorized by the legislature and has been so interpreted in past decisions of this Court. The legislature has empowered the plaintiff utility to acquire property by eminent domain. Section 15-2204(d), R.C.M.1947. The legislature has specifically declared that an electric power line is a public use for which private property may be taken by eminent domain proceedings. Section 93-9902(11), R.C.M.1947. This Court has held that dams, reservoirs, power plants, and electric power lines are public uses for which private property may be acquired under eminent domain. Helena Power Transmission Co. v. Spratt, 35 Mont. 108, 88 P. 773, 8 L.R.A., N.S., 567.

Nonetheless the landowners claim that under the circumstances disclosed here the electric power transmission line is a private line for the benefit of only one customer. They contend that a public use requires an actual use by the public as a whole, or at least the right to use the proposed system by the public in general. They contend that these requirements are absent in the instant case and therefore there is no public use within the meaning of eminent domain proceedings.

At the outset, we recognize that there are two conflicting lines of authority in other jurisdictions concerning the requisites of a 'public use' within the meaning of eminent domain proceedings. One view, the limited or narrow view, requires in general the actual use or right to use the proposed system by the public as a whole. The other view, called the broad view, essentially requires only a use conferring a 'public advantage' or a 'public benefit'. Montana, as with many western states, has adhered to the broad view since 1895, presumably to promote general economic development. See Butte, A. & P. Ry. Co. v. Montana U. Ry. Co., 16 Mont. 504, 41 P. 232, 31 L.R.A. 298; Ellinghouse v. Taylor, 19 Mont. 462, 48 P. 757; Helena Power Transmission Co. v. Spratt, 35 Mont. 108, 88 P. 773, 8 L.R.A.,N.S., 567; Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656; State ex rel. Helena Housing Authority v. City Council, etc. 108 Mont. 347, 90 P.2d 514. Cases cited by the landowners are not controlling authority for the limited or narrow view-Northern Pacific Ry. Co. v. McAdow, 44 Mont. 547, 121 P. 473 (decided on the issue of necessity, not public use); State v. Aitchison, 96 Mont. 335, 30 P.2d 805 (decided on the issue of the right of the Fish and Game Commission to condemn, not public use); Komposh v. Powers, 75 Mont. 493, 244 P. 298 (decided on the basis that the road in question was a public and not a private road).

Thus, in Montana a public use is one which confers some benefit or advantage to the public. Such public use is not confined to actual use by the public, but is measured in terms of the right of the public to use the proposed facilities for which condemnation is sought. As long as the public has the right of use, whether exercised by one or many members of the public, a 'public advantage' or 'public benefit' accrues sufficient to constitute a public use. This principle is aptly expressed in Nichols on Eminent Domain, 3rd Ed., V. 2, § 7.522(3), in the following language:

'As long as every member of the public has an equal right with all others, on equal terms, to the use of the power produced, it matters not that every person is not actually benefited thereby.'

Uses which serve a single person or a single enterprise have long been upheld as public uses in Montana if a 'public advantage' or 'public benefit' is derived. Komposh v. Powers, supra, (a road serving a single farm); Ellinghouse v. Taylor, supra, (a ditch supplying water to a single enterprise); Kipp v. Davis-Daly Copper Co., 41 Mont. 509, 110 P. 237, 36 L.R.A.,N.S., 666 (a railroad spur transporting ore from a single mine).

In the instant case the evidence indicates a 'public advantage' or a 'public benefit' supporting the finding of a public use. The testimony of George O'Connor, president of plaintiff utility, satisfies all requirements heretofore discussed:

'Q. And is the Company obligated to supply electric energy at reasonable rates and without discrimination to all persons, firms and companies that desire that power? A. Yes, sir, under the law.

'Q. Will you state whether or not all members of the public have an equal right with all others on equal terms to use the power generated, transmitted and distributed by the Company? A. They do, sir.

* * * * * *

'Q. All right, Mr. O'Connor, I would ask you this. Would your 115 KV system north of Conrad be available to members of the public or other agencies who might require service off that line? A. It certainly would be.'

The Montana Power Company is a public utility and as such it has dedicated its property to the public use under regulations imposed by the Montana Public Service Commission. Great Northern Utilities Co. v. Public Service Comm., 88 Mont. 180, 293 P. 294. Should plaintiff utility refuse to serve others from the proposed line, it can be compelled to...