Montana Eminent Domain Laws

Montana Eminent Domain Laws can be found in Chapter 30 of Title 70 of the Montana Code.  The eminent domain power is the right of the state to take private property for public use[i].  Pursuant to Mont. Code Anno., § 70-30-103 (2010), the property that may be taken includes:

  • all real property belonging to any person;
  • land that belongs to Montana state or to any county, city, or town and that is not appropriated to some public use;
  • property appropriated to a public use, but the property may not be taken unless for a more necessary public use than that to which it has already been appropriated;
  • franchises for roads, bridges, and ferries and all other franchises; but the franchises may not be taken unless for free highways, free bridges, railroads, or another more necessary public use; or
  • a right-of-way for any public use and any structures and improvements on the right-of-way.

Mont. Code Anno., § 70-30-202 (2010) provides that all eminent domain proceedings must be brought in the district court of the county in which the property or some part of the property is situated.  Also, a proceeding must be commenced by filing a complaint and issuing a summons.

In a condemnation proceeding, the court may[ii]:

  • regulate and determine the place and manner of:

(a)  making the connections and crossings and enjoying the common uses; and

(b)  occupying canyons, passes, and defiles for railroad purposes, as permitted and regulated by the laws of Montana or of the U.S.; or

  • limit the interest in real property sought to be taken if in the opinion of the court the interest sought is not necessary.

If the court finds and concludes from the evidence presented that the public interest requires the taking of an interest in real property and that the condemnor has met the burden of proof, the court should enter a preliminary condemnation order providing that the condemnation of the interest in real property may proceed.

Within 30 days of entry of a preliminary condemnation order, the condemnee should file a statement of the condemnee’s claim of just compensation.  If within 20 days of service of the condemnee’s claim the condemnor fails to accept the claim, the court appoints condemnation commissioners[iii].

The condemnation commissioners should meet at the time and place stated in the order appointing them[iv].  The meeting time may not be more than ten days after the order of appointment.  The commissioners should examine the lands sought to be taken.  At a time appointed by the judge and within the ten-day period, the commissioners should hear the allegations and evidence of all persons interested in each parcel of land.

The commissioners should determine the current fair market value of the real property sought to be taken and all improvements pertaining to the real property and of each separate estate and interest in the real property and improvements.  If the real property consists of different parcels, the current fair market value of each parcel and each estate or interest in the real property must be separately assessed.

For the purpose of assessing compensation, the right to compensation is considered to have accrued at the date of the service of the summons and the property’s current fair market value as of that date is the measure of compensation for all property to be actually taken and the basis of depreciation in the current fair market value of property not actually taken but injuriously affected[v].  If an order is made allowing the condemnor to take possession, the full amount finally awarded must draw interest at the rate of ten percent a year from the date of the service of the summons.

Pursuant to Mont. Code Anno., § 70-30-303 (2010), the report of the condemnation commissioners must be filed within ten days after the completion of the hearing or within any additional time allowed by the judge upon a clear showing of necessity.

Mont. Code Anno., § 70-30-304 (2010) provides that any party may appeal from any assessment made by the condemnation commissioners in the court in which the report of the commissioners is filed.  The appeal must be taken within 30 days after the service upon the parties of the notice of the filing of the award.

Further, any party interested in the proceedings can appeal to the Supreme Court from any finding or judgment made or rendered.  Also, an appeal does not stay any further proceedings, except that the district court on motion or ex parte may grant a stay for a period of time and under conditions that the court considers proper[vi].

[i] Mont. Code Anno., § 70-30-101 (2010).

[ii] Mont. Code Anno., § 70-30-206 (2010).

[iii] Mont. Code Anno., § 70-30-207 (2010).

[iv] Mont. Code Anno., § 70-30-301 (2010).

[v] Mont. Code Anno., § 70-30-302 (2010).

[vi] Mont. Code Anno., § 70-30-312 (2010).


Inside Montana Eminent Domain Laws