author: JUSTICE HUNT CHIEF JUSTICE TURNAGE,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HARVEY D. LOTT, Defendant and Appellant.
    No. 94-319.
    Submitted on Briefs April 27, 1995.
    Decided August 1, 1995.
    52 St.Rep. 696.
    272 Mont. 195.
    900 P.2d 306.

      For Appellant: Douglas J. DiRe, Knight, Dahood, McLean, Everett & Dayton, Anaconda.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; Thomas R. Scott, Beaverhead County Attorney, Calvin Erb, Deputy County Attorney, Dillon.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Harvey D. Lott appeals from his conviction of possession of dangerous drugs and possession of drug paraphernalia in the District Court for the Fifth Judicial District, Beaverhead Comity.

We reverse.

The sole issue on appeal is:

Did the District Court err when it denied appellant’s motion to suppress evidence?

In September 1993, the Department of Narcotics Task Force in Arizona contacted the Beaverhead County Sheriff’s Office. It informed them that a package containing marijuana was recovered in a random audit by United Parcel Service in Tucson, Arizona, and that the recovered package was addressed to appellant at his home address in Dillon, Montana.

The Beaverhead County Sheriff’s Office decided to set up a “controlled drop,” or delivery of the package by an undercover officer to appellant’s home address. Before the controlled drop, the Sheriff’s Office obtained search warrants for appellant’s home and for his three vehicles.

Appellant was at work when the package was delivered to his home. At appellant’s request, one of his co-workers went to his home, picked up the package, and delivered it to him while he was at work. Beaverhead County law enforcement officers watched this scenario unfold.

The affidavit in support of the request for leave to file an information states:

That Harvey D. Lott then unwrapped the package and placed the contents in his coat and proceeded to leave the area. A short time later Harvey D. Lott was stopped by Deputy Sheriff Jay T. Hansen and other law enforcement personnel. In the truck owned and driven by Harvey D. Lott, the marijuana was in a coat and placed in between the seats of this motor vehicle.

An affidavit in support of a subsequent application for a warrant to search appellant’s storage shed provides more detail:

[The co-worker] delivered the package to Harvey D. Lott at the State Lands Office in Dillon, Montana, and Harvey D. Lott acknowledged receipt of the package.
Later, on [the same day], Harvey D. Lott was observed leaving the State Lands Office with the United Parcel Service package in his possession. Harvey D. Lott was observed throwing items into or around the dumpster in the back of the State Lands Office. Harvey D. Lott entered his vehicle and left the parking area of State Lands. Harvey D. Lott left in a 1991 Ford pickup truck, license place number 18T-924C. At that time a stop of Harvey D. Lott’s vehicle was effectuated by law enforcement and Harvey D. Lott was placed under arrest for suspicion of possession of dangerous drugs. An examination of the dumpster behind the State Lands Office revealed that the box in which the marijuana was shipped had been discarded in the dumpster. A subsequent search of the 1991 Ford pickup truck owned and occupied by Harvey D. Lott revealed the marijuana wrapped in a coat and placed between the seats in the motor vehicle.

A search of appellant’s home netted a set of grow lights, a scale, a sandwich baggie, two additional containers of marijuana, marijuana seeds, rolling papers, a knife with marijuana or hashish residue, a $20 bill rolled to form a straw, and a homemade marijuana or hashish pipe. Appellant was charged with two counts of possession of dangerous drugs with intent to sell, misdemeanor possession of dangerous drugs, and possession of drug paraphernalia.

Appellant moved to suppress evidence of the marijuana seized from his truck, arguing that the State failed to establish probable cause to search the truck and that the search warrant was, therefore, invalid. The District Court denied the motion ruling that the search warrant was valid and that the search of the truck was also justified under the automobile exception to the warrant requirement. Pursuant to a plea agreement, appellant pled guilty to the charges against him.

ISSUE

Did the District Court err when it denied appellant’s motion to suppress evidence?

We review a district court’s ruling on a motion to suppress to determine whether there is substantial credible evidence to support the court’s findings of fact and whether the court correctly applied the findings as a matter of law. State v. Stubbs (1995), [270 Mont. 364], 892 P.2d 547, 550. In addition, we determine whether the district court’s interpretation of the law was correct. Stubbs, 892 P.2d at 550.

A search of a place may be made, and contraband may be seized, when the search is made either by the authority of a valid warrant or in accordance with a judicially recognized exception to the warrant requirement. Section 46-5-101, MCA. The District Court denied appellant’s motion to suppress the contraband seized from his truck after concluding that the search warrant was valid.

A warrant is valid if the application in support thereof: (1) states sufficient facts to support probable cause to believe that an offense has been committed; (2) states sufficient facts to support probable cause to believe that contraband connected with the offense may be found; (3) describes with particularity the place to be searched; and (4) describes with particularity what is to be seized. Section 46-5-221, MCA.

In the present case, the affidavit supporting the application for a search warrant recites background data regarding what transpired in Arizona, how the marijuana was being sent to Montana, and how it would be delivered to appellant’s home via a “controlled drop.” Concerning the truck, the affidavit states:

That Affiant is further informed and believes that the said Harvey D. Lott owns three (3) vehicles that may be used in the distribution of a controlled substance. Said vehicles are described as a 1962 Ford pickup truck, white in color ... a 1980 Yamaha motorcycle, black in color ... and a 1991 Ford pickup truck, silver in color.

Appellant argues that the affidavit in support of the application for a warrant to search his truck does not state facts sufficient to justify a conclusion that evidence or contraband would probably be found in the truck.

The affidavit in support of the application for a warrant to search appellant’s truck states that the marijuana was being delivered to appellant’s home. The only discussion of the truck is the conclusory statement that appellant’s three vehicles “may be used in the distribution of a controlled substance.” No facts are set forth supporting that particular conclusion.

“A mere affirmance of belief or suspicion by a police officer, absent any underlying facts or circumstances, does not establish probable cause for the issuance of a search warrant.” State v. Isom (1982), 196 Mont. 330, 343, 641 P.2d 417, 424. Here, the affiant’s statement that appellant’s vehicles “may be used” to distribute drugs is unsupported by any underlying facts or circumstances. The affidavit did not provide a substantial basis for concluding that probable cause existed to search the truck. Consequently, we hold that the search warrant was invalid as to the truck.

The District Court concluded further that independent of the validity of the warrant, the stop and search of appellant’s truck was permissible under the automobile exception to the warrant requirement. We disagree.

Under the automobile exception to the warrant requirement, the police may search an automobile without a warrant if the search is supported by probable cause and there is the presence of exigent circumstances. State v. McCarthy (1993), 258 Mont. 51, 56-57, 852 P.2d 111, 114. In Montana, exigent circumstances include the mobility of the vehicle, the possible destruction of the evidence, the safety of police officers, emergency situations, and the potential gravity of the crime committed. McCarthy, 852 P.2d at 114. The record shows that appellant was observed opening a box, throwing the box into a dumpster, and entering a building with the contents of the box. A short time later he left the building, entered his truck, and drove away. Appellant was never observed placing anything in his truck before he drove away. Nothing in the actions of appellant warranted a search based on probable cause. Similarly, there existed none of the recognized exigent circumstances that would allow a warrantless search of appellant’s vehicle.

We hold that the District Court erred when it denied appellant’s motion to suppress evidence.

For the reasons set forth above, we reverse.

JUSTICES GRAY, TRIEWEILER and LEAPHART concur.

CHIEF JUSTICE TURNAGE,

dissenting.

I respectfully dissent from the conclusion of the majority that the search of Lott’s truck was not justified under the automobile exception to the warrant requirement.

This Court has held that the automobile exception to the warrant requirement demands two things: (1) the existence of probable cause to search; and (2) the presence of exigent circumstances making it impracticable to obtain a warrant. State v. Allen (1992), 256 Mont. 47, 51, 844 P.2d 105, 108. Probable cause requires only a probability of criminal activity, not a prima facie showing. State v. Dess (1982), 201 Mont. 456, 465, 655 P.2d 149, 154. In determining whether exigent circumstances are present, all circumstances are relevant. As the majority has noted, “[pjolice may need to consider not just the mobility of the vehicle, but the possible destruction of evidence, the safety of police officers, emergency situations, and the possible gravity of the crime committed.” State v. McCarthy (1993), 258 Mont. 51, 57-58, 852 P.2d 111, 115.

In this case, the officers knew that a package containing fourteen ounces of marijuana had been delivered to Lott’s residence. When they stopped and searched Lott’s truck, they had important additional information, as well. They knew that Lott had asked a co-worker to pick up the package from his residence and deliver it to him at work at the State Lands office. They knew that Lott received the package. They knew he thereafter went outside the State Lands office, opened the package and took out the cellophane-wrapped marijuana. They knew that Lott then got into his truck and drove away.

From the above facts, I conclude that the Beaverhead County law enforcement officers had probable cause to believe that Lott’s truck contained contraband. Further, it would have been easy for Lott to flee with or dispose of the contraband. I conclude that exigent circumstances were present in which there was a real danger of loss or destruction of evidence. I would hold that, under these circumstances, a warrantless search of Lott’s truck was justified, and that the District Court did not err in denying the motion to suppress the marijuana seized as a result of that search.

JUSTICE WEBER and JUSTICE NELSON join in the foregoing dissent of CHIEF JUSTICE TURNAGE.


source: Caselaw Access Project

author: JUSTICE GRAY JUSTICE WEBER

license: Public Domain

text:
    RUTH L. LOCKWOOD, Individually and as Personal Representative of the Estate of DARRELL W. LOCKWOOD, Plaintiff and Appellant, v. W. R. GRACE & COMPANY, Defendant and Respondent.
    No. 94-371.
    Submitted on Briefs January 26, 1995.
    Decided August 3, 1995.
    52 St.Rep. 705.
    272 Mont. 202.
    900 P.2d 314.

      For Appellant: Tom L. Lewis, Attorney at Law, Great Falls.
    For Respondent: Gary L. Graham; Garlington, Lohm & Robinson, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Ruth Lockwood appeals from orders of the Nineteenth Judicial District Court, Lincoln County, granting W. R. Grace & Company’s motion to dismiss her complaint with prejudice and denying her motion to alter or amend the judgment. We affirm in part, reverse in part and remand.

We restate the issues on appeal as follows:

1. Did the District Court err in concluding that Gidley v. W. R. Grace & Co. does not permit Lockwood to escape the exclusivity of the Occupational Disease Act of Montana?
2. Did the District Court err in granting Grace’s motion to dismiss and in denying Lockwood’s motion to alter or amend?

Darrell Lockwood (Darrell) worked for W. R. Grace & Company (Grace) in its vermiculite mine and mill for approximately ten years until he retired in 1984. Six years later, he was diagnosed with mesothelioma, an asbestos-specific cancer of the lining of the lungs. Darrell died in 1991. Ruth Lockwood (Lockwood), Darrell’s widow, submitted a claim for beneficiaries’ occupational disease benefits with Crawford & Company (Crawford), the adjuster for Grace’s Occupational Disease Act of Montana (MODA) insurer. Crawford denied the claim on the basis that the three-year statute of limitations contained in § 39-72-403, MCA (1983), had run. Lockwood did not formally file a claim or petition for MODA benefits after Crawford’s denial.

Lockwood filed survival and wrongful death actions against Grace. Grace moved to dismiss Lockwood’s complaint. It asserted that, taking Lockwood’s allegations as true, her complaint stated an occupational disease claim for which compensation under the MODA was the exclusive remedy pursuant to § 39-72-305, MCA (1983). After full briefing and oral argument, the District Court granted Grace’s motion to dismiss. The court concluded that Gidley v. W. R. Grace & Co. (1986), 221 Mont. 36, 717 P.2d 21, does not preserve Lockwood’s common law actions and thereby allow her to avoid MODA exclusivity.

Lockwood subsequently moved to alter or amend the judgment pursuant to Rules 52(b) and 59(g), M.R.Civ.R The District Court denied the motion, concluding that Lockwood’s complaint was insufficient to avoid MODA exclusivity via allegations that Grace committed an intentional tort. Lockwood appeals.

1. Did the District Court err in concluding that Gidley v. W. R. Grace & Co. does not permit Lockwood to escape the exclusivity of the Occupational Disease Act of Montana?

The MODA generally provides for compensation by an employer to an employee disabled by reason of occupational disease arising out of the course of employment. See, e.g., §§ 39-72-302 and 39-72-401, MCA. It applies to all employers and employees subject to Montana’s Workers’ Compensation Act. Section 39-72-301, MCA. The MODA statutes in effect on an employee’s last day of work govern resolution of an occupational disease claim. Gidley, 717 P.2d at 22. Because Darrell’s last day of employment with Grace was in 1984, the 1983 version of the MODA is applicable here.

Section 39-72-305(1), MCA (1983), provides that the right to recover compensation for an employment-related occupational disease, whether resulting in death or not, is the exclusive remedy against a properly insured employer. In granting Grace’s motion to dismiss, the District Court concluded that Lockwood’s claim “is governed exclusively by the Occupational Disease Act.”

Lockwood argues that, under Gidley, her causes of action are not barred by the MODA exclusivity provision. Her reliance on Gidley is misplaced.

The sole issue on appeal in Gidley was whether the MODA constituted the exclusive remedy for the widow of a deceased Grace employee’s cancer-related death where the occupational disease allegedly was not discovered until after the MODA statute of limitations had run. The 1977 MODAstatutes were applicable and our resolution of the issue turned on the proper interpretation of §§ 92-1308 and 92-1331, R.C.M. (1977). Section 92-1308, R.C.M. (1977), provided that the MODA was the exclusive remedy for employment-related occupational diseases “against the employer electing to be bound by and subject to this act...;” § 92-1331, R.C.M. (1977), barred common law actions for employment-related occupational diseases “excepting for those employees not eligible for compensation under the terms of this act, or who reject coverage of this act. ...” Gidley, 717 P.2d at 22.

Concluding that the two statutes were at least ambiguous, if not contradictory, we looked to the legislative history of the MODA and to § 92-1368, R.C.M., which provided that the MODA was to be liberally construed. Gidley, 717 P.2d at 23. Applying the MODA statutes to the facts, we determined that the deceased employee’s occupational disease claim was barred by the MODA statute of limitations and, therefore, that the employee was “not eligible for compensation” under the MODA. On that basis, we held that the common law right of action was preserved under § 92-1331, R.C.M. (1977), and that the MODA did not constitute the widow’s exclusive remedy. Gidley, 717 P.2d at 23-24.

Our decision in Gidley was dependent upon the ambiguous and contradictory statutes at issue there. Section 92-1331, R.C.M. (1977), was repealed in 1979. Section 92-1308, R.C.M. (1977), was amended in 1979 and recodified as § 39-72-305, MCA, which in the version applicable here states only that the MODA is the exclusive remedy against a properly insured employer for an occupational disease arising from employment. See § 39-72-305(1), MCA (1983). Thus, while Gidley and the present case share factual similarities, Gidley has no application here and does not support Lockwood’s argument that her causes of action are preserved and are not barred by § 39-72-305(1), MCA (1983).

We hold that the District Court did not err in concluding that Gidley neither preserves Lockwood’s common law actions nor permits her to escape the exclusivity of the Occupational Disease Act of Montana. Issues relating solely to whether Lockwood’s MODA claim is barred by the applicable statute of limitations are not properly before us in this action and must await resolution in the event Lockwood litigates a MODA claim.

2. Did the District Court err in granting Grace’s motion to dismiss and in denying Lockwood’s motion to alter or amend?

Grace premised its motion to dismiss on the exclusivity of the MODA remedy. Lockwood’s opposition to the motion largely tracked Grace’s arguments, although she presented the allegations of her complaint at some length. The District Court granted Grace’s motion and dismissed Lockwood’s complaint with prejudice, concluding that Lockwood’s claim is governed exclusively by the MODA.

Lockwood subsequently moved the court to alter or amend its order of dismissal. She argued, in pertinent part, that her complaint alleges facts bringing the action within the “intentional and active injurious conduct” exception to exclusivity. The District Court denied Lockwood’s motion on the basis that the allegations in her complaint were insufficient to avoid exclusivity as a matter of law.

Our standard in reviewing a district court’s ruling on a motion to dismiss under Rule 12(b)(6), M.R.Civ.R, is clear:

“A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.Civ.R, has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.”

Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762 (citation omitted). The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Boreen, 884 P.2d at 762 (citation omitted).

Prior to scrutinizing the allegations at issue here, it will be helpful to review our recent cases holding that, in limited circumstances involving intentional harm, exclusivity can be avoided. In Great Western Sugar Co. v. District Court (1980), 188 Mont. 1, 7, 610 P.2d 717, 720, we explained that the intentional harm which creates the exception to exclusivity is harm which the employer “maliciously and specifically directed at an employee, or class of employee [,] out of which such specific intentional harm the employee receives injuries as a proximate result.” Great Western, 610 P.2d at 720. Incidents resulting in employee injury which involve any lesser degree of intent to harm not directed specifically at the injured employee cannot provide a basis for recovery against the employer. Great Western, 610 P.2d at 720. Because only negligence, albeit wanton or malicious negligence, was alleged in Great Western, we held that the Workers’ Compensation Act provided the plaintiff’s exclusive remedy against the employer and that the complaint must be dismissed. Great Western, 610 P.2d at 719-20.

We revisited the Great Western principles in a summary judgment context in Noonan v. Spring Creek Forest Products (1985), 216 Mont. 221, 700 P.2d 623. There, the employee alleged an intentional tort against the employer. Relying on Great Western, the district court concluded that no genuine issues of material fact existed regarding whether the harm suffered was maliciously and specifically directed at the plaintiff. Noonan, 700 P.2d at 624. Prior to addressing the summary judgment issues, we observed that, unlike the plaintiff in Great Western, Noonan had included sufficient allegations in his complaint which, if proved, would remove the cause of action from the exclusivity provision of the Workers’ Compensation Act. Noonan, 700 P.2d at 625.

In opposition to the employer’s motion for summary judgment, Noonan submitted his own affidavit and deposition, setting forth facts that the machine with which he was required to work was known by the employer to be broken and that the employer knew the machine violated OSHA regulations. We determined that the facts established that the employer operated a hazardous and dangerous workplace; we concluded, however, that these facts could not be interpreted to mean that harm was specifically directed at Noonan. Noonan, 700 P.2d at 626.

In our recent decision in Blythe v. Radiometer America, Inc. (1993), 262 Mont. 464, 866 P.2d 218, we addressed the intentional harm exception to exclusivity in the context of the dismissal of a complaint. There, we evaluated Blythe’s allegation that his employer knew of the defective and hazardous character of the medical devices he and other employees were required to use on the job. Blythe, 866 P.2d at 222. Analogizing closely to the situation presented in Noonan, we concluded that the plaintiff had failed to allege sufficient malicious and specific intent to harm him to survive a motion to dismiss pursuant to the exclusivity provision of the Workers’ Compensation Act. Blythe, 866 P.2d at 225.

Against this backdrop, we scrutinize the allegations in Lockwood’s complaint which the District Court determined were insufficient to escape MODA exclusivity as a matter of law. We take the allegations as true and address whether it appears beyond doubt that Lockwood can prove no set of facts in support of her claim which would entitle her to relief. See Boreen, 884 P.2d at 762.

Lockwood alleges, among other things, that: (1) Grace knew or had reason to know that extended inhalation or continuous ingestion of vermiculite and asbestos particles created a high degree of risk or harm to Darrell; (2) Grace willfully and deliberately concealed its knowledge from Darrell and his co-employees; (3) Grace failed to provide protective equipment sufficient to avoid the danger; (4) Grace advised Darrell and other employees that it was safe to work continuously in close proximity to vermiculite and asbestos particles; and (5) Grace’s acts and omissions proximately caused Darrell’s mesothelioma and, ultimately, his death.

In addressing whether Lockwood’s allegations are sufficient to withstand Grace’s motion to dismiss, we focus primarily on the first allegation listed above to determine its similarity to, or difference from, those we found insufficient to avoid exclusivity in our earlier cases. The pertinent portion of the allegation is stated as follows in Lockwood’s complaint: “Although defendants knew or had ample reason to know that the defendants’ acts or omissions created a high degree of risk or harm to [Darrell]. ...” (Emphasis added.) Phrased in the alternative in several places, this allegation properly can be read in a number of different ways. Under Boreen, we must construe the allegations liberally in Lockwood’s favor in the context of a motion to dismiss. See Boreen, 884 P.2d at 762.

We begin by reading the allegation as one that the defendants “had ample reason to know” that their acts or omissions created a high degree of risk or harm to Darrell. This portion of the alternatively pled knowledge element alleges a lesser degree of knowledge than the facts involved, and rejected as insufficient to constitute intentional harm, in Noonan and Blythe. In Noonan, the employer knew of the broken planer, knew that it violated OSHA standards, and knew of previous accidents on the planer. Noonan, 700 P.2d at 624. Similarly, in Blythe, the employer was alleged to know of the defective and hazardous nature of the equipment. Blythe, 866 P.2d at 224. In neither case was the actual knowledge sufficient to avoid exclusivity. Thus, under our cases, it is clear that an allegation of less than actual knowledge, such as the “had ample reason to know” portion of Lockwood’s allegation, is insufficient as a matter of law to serve as the basis for avoiding MODA exclusivity.

Having excluded “had ample reason to know” from the allegation on which we are focusing, we are left with an allegation that the defendants knew their acts or omissions created a high degree of risk or harm to Darrell. The first alternative reading of the allegation is that Grace knew its acts created a high degree of risk to Darrell; the second is that Grace knew its acts created a high degree of harm to Darrell.

Applying these alternative readings to our earlier cases, it is clear that the first reading of the allegation is substantially similar to those involved in Noonan and Blythe. With regard to Noonan, the allegation that Grace knew its acts created a high degree of risk can be read to correspond to the knowing operation of a hazardous and unsafe workplace which we concluded did not constitute intentional harm directed at the claimant. See Noonan, 700 P.2d at 625-26. That allegation also corresponds to the allegation in Blythe that the employer knew of the defective and hazardous nature of the equipment it required its employees to use, but which we rejected as insufficient to meet the “intentional harm” requirement for avoiding exclusivity. See Blythe, 866 P.2d at 224. In Noonan, Blythe, and this reading of Lockwood’s allegation, the allegation is essentially one of knowledge of risk of harm.

The alternative reading of Lockwood’s allegation — that Grace knew its acts created a high degree of harm to Darrell — differs significantly from a mere allegation of known risk. This reading of the allegation, particularly when taken together with the allegations of active concealment of this knowledge and affirmative advice to Darrell and other employees that continuous exposure to vermiculite and asbestos dust was safe, meets the requirement that a plaintiff allege “the presence of intentional harm which his employer maliciously and specifically directed at him ....” See Blythe, 866 P.2d at 221 (emphasis added).

These allegations are not mere allegations of intentional acts, omissions or conduct in the traditional tort context. Nor, of course, are they allegations of any desire by Grace to harm its employees. As Professor Larson cautions, intent to injure does not mean desire to injure; it means that the employer intended that the employee should undergo the injury — the exposure to the harm — of which the employer knew on a daily basis. 2A, Larson’s Worker’s Compensation Law, § 68.15(e), at 13-107. This constitutes the allegation of intentional harm specifically and maliciously directed at an employee.

Indeed, our conclusion here is foreshadowed by our reference to, and discussion of, People v. O’Neil (Ill. App. 1990), 550 N.E.2d 1090, cert. denied, 553 N.E.2d 400 (1990) (commonly referred to as Film Recovery), in Blythe. In Film Recovery, an employee died after inhaling harmful fumes released in the course of the employer’s manufacturing process; the employer knew that his employees were inhaling the harmful fumes and concealed his knowledge of the harm from the employees. We indicated that Professor Larson cited Film Recovery with approval as a case involving facts constituting an intentional tort sufficient to avoid exclusivity. Blythe, 866 P.2d at 223.

The distinguishing factor between Film Recovery and cases such as Blythe is the employer’s alleged knowledge that the employee is being injured, in the former, versus the employer’s exposing the employee to risk of harm without certain knowledge that the employee is being or will be harmed, in the latter. See Blythe, 866 P.2d at 223. Under this analysis, it is clear that Lockwood’s allegation that Grace knew its acts created harm to Darrell meets both Professor Larson’s definition of “intent to harm” and that of this Court in Blythe.

Grace argues that Film Recovery is inapplicable here because it is a criminal case involving neither an intentional tort nor exclusivity under legislation such as the MODA. While Grace’s characterization of Film Recovery is correct, its argument misses the point. We do not rely on Film Recovery as precedent for our determination that Lockwood’s allegations are sufficient to avoid exclusivity. Rather, we address it only to indicate the type of facts which will support an intentional tort sufficient to avoid exclusivity and which must be alleged in a complaint to withstand a motion to dismiss.

While the allegations of Lockwood’s complaint are not particularly artful with regard to the intent to harm, they do include an allegation of “intentional harm” as we defined that term in Great Western, Noonan, and Blythe. Taking the allegations as true and construing them in a light most favorable to Lockwood, we conclude that the allegations of Lockwood’s complaint are sufficient to avoid MODA exclusivity and withstand a motion to dismiss. Therefore, we hold that the District Court erred in granting Grace’s motion to dismiss and, for that reason, abused its discretion in denying Lockwood’s motion to alter or amend.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

JUSTICES HUNT, NELSON and LEAPHART concur.

JUSTICE WEBER

dissents as follows:

I dissent from the opinion’s holding on issue 2 that the District Court erred in granting Grace’s motion to dismiss. The key analysis is the interpretation of the following allegation in Lockwood’s complaint:

Although defendants knew of or had ample reason to know that the defendants’ acts or omissions created a high degree of risk or harm to [Darrell] ... (Emphasis supplied.)

The opinion first analyzes the allegation by reading it as stating that the defendants had ample reason to know their acts or omissions created a high degree of risk or harm. The opinion concludes that such an allegation must be rejected as insufficient to constitute “intentional harm” under Noonan and Blythe. As a result, the opinion concludes that the allegation of less than actual knowledge such as an allegation that the defendants “had ample reason to know” is insufficient as a matter of law to serve as the basis for avoiding exclusivity. I agree with that analysis.

As a result, I am unable to agree with the balance of the analysis. The opinion excludes the phrase “had ample reason to know” from the analysis and considers whether an allegation that the defendants knew that the defendants’ acts or omissions created a high degree of risk or harm is sufficient. That analysis would be appropriate if the alternatives had been alleged in different paragraphs or even in different sentences. However, I do not see how it can be applied here. In a single sentence, the plaintiff alleged that the defendants knew or had ample reason to know — that alternative allegation can be met by proving the defendants had ample reason to know. I conclude it is not a positive allegation of sufficient knowledge on the part of the defendants. I conclude that, as in Noonan and Blythe, the allegations are not sufficient to demonstrate actual knowledge sufficient to avoid exclusivity.

I would, therefore, affirm the conclusion of the District Court that the complaint did not contain sufficient allegations of an intentional tort, and its reliance on Blythe for that conclusion.


author: JUSTICE NELSON

text:
    C. RON WILEY and AUDREY WILEY, Husband and Wife, Plaintiffs and Appellants, v. THE CITY OF GLENDIVE and THE STATE OF MONTANA, DEPARTMENT OF TRANSPORTATION, Defendants and Respondents.
    No. 94-536.
    Submitted on Briefs March 2, 1995.
    Decided August 3, 1995.
    52 St.Rep. 714.
    272 Mont. 213.
    900 P.2d 310.

      For Appellants: Richard A. Simonton, Kevin R. Peterson; Simonton, Howe & Schneider, Glendive.
    For Respondents: Kristi Blazer; Luxan & Murfitt, Helena; Gary L. Day; Lucas & Monaghan, Miles City.
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellants, Ron and Audrey Wiley (the Wileys), filed a negligence action on September 25, 1992, against the State of Montana Department of Transportation (State) and the City of Glendive (City). On October 17, 1994, the District Court Judge for the Seventh Judicial District, Dawson County, granted summary judgment in favor of the State and the City. The Wileys appeal the District Court’s final judgment dismissing the Wileys’ complaint with prejudice. We affirm.

The Wileys raise the following issue on appeal: Did the District Court err in granting summary judgment?

BACKGROUND

On September 21, 1991, a rainy day, Audrey Wiley slipped on a metal pullbox cover on a sidewalk in Glendive and fractured her right ankle in several places. Subsequently, Audrey Wiley underwent three surgeries.

The State installed the cast iron and checkered steel pullbox cover on September 27, 1979. The pullbox was in substantially the same condition on the date of Audrey Wiley’s accident as on the date of installation. The concrete surrounding the pullbox was level, but the sidewalk sloped away from the building towards the street. The installation met all applicable standards and specifications. Similar pullboxes have been and continue to be installed in sidewalks throughout Montana. In fact, there were no previous reports regarding this cover, nor were there reports of a slip and fall regarding a pullbox in Montana or elsewhere.

The Wileys filed a negligence action on September 25, 1992, against the State and the City. Following extensive discovery, the State and the City moved for summary judgment, supporting their motions with affidavits of five experts. Although the Wileys did not support their opposition to summary judgment with affidavits, they relied on their expert’s deposition to establish a genuine issue of material fact regarding the State and the City’s negligence. On September 26,1994, the District Court Judge for the Seventh Judicial District, Dawson County, granted the State and the City’s motions for summary judgment, finding that reasonable minds could not differ concerning an absence of material fact and that the State and the City were entitled to judgment as a matter of law. The Wileys appeal the District Court’s final judgment dismissing their complaint.

The Wileys raise the following issue on appeal: Did the District Court err in granting summary judgment?

DISCUSSION

Under Rule 56(c), M.R.Civ.R, summary judgment is proper only when no genuine issue of material fact exists and when the moving party is entitled to judgment as a matter of law. The moving party has the initial burden to establish that there are no genuine issues of material fact. Once that burden has been met, the burden then shifts to the party opposing the motion to establish otherwise. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32. Our review of a grant of summary judgment is de novo; we use the same criteria as the district court. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

Ordinarily, negligence actions involve questions of fact and are not susceptible to summary judgment. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, when reasonable minds cannot differ, questions of fact can be determined as a matter of law. Brohman, 749 P.2d at 70. For example, if the moving party establishes that one element of a cause of action lacks any genuine issue of material fact and the non-moving party does not come forward with proof that a genuine issue does exist, summary judgment is proper. Hatch v. State Dept. of Highways (1994), [269 Mont. 188], 887 P.2d 729, 732.

The Wileys argue that reasonable minds could differ concerning the absence of material fact and therefore summary judgment was not appropriate. Specifically, the Wileys assert the State and the City “installed, constructed, maintained, and/or operated the metal plate in a dangerous, defective, and unsafe condition,” and that four questions of fact establishing the condition remain:

(1) the location of the pullbox cover in relation to pedestrian traffic; (2) the use of the cast iron cover in an outdoor application when it was known to be twice as slippery as the surrounding cement; (3) lack of any non-skid material to increase the coefficient of friction; and (4) there were no applicable guidelines which establish a standard of minimum friction.

A negligence cause of action has four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Hatch, 887 P.2d at 732. Duty is the first element of a negligence claim and is a question of law. Hatch, 887 P.2d at 733 (citing Geiger v. Department of Revenue (1993), 260 Mont. 294, 297, 858 P.2d 1250, 1252). The State has the duty to keep its sidewalks and highways in a reasonably safe condition for ordinary use and public travel. Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214; Sullivan v. City of Butte (1937), 104 Mont. 225, 226, 65 P.2d 1175, 1175. Furthermore, when the State has notice of a defect and opportunity to act, it has the duty to cure, remove, or warn of that defect. Buck, 723 P.2d at 214. Thus, in the case before us, the State and the City had the duty to keep the pullbox and the surrounding sidewalk in a reasonably safe condition and cure, remove, or warn of a defect if one existed.

The second element of a negligence claim is a breach of a duty. Hatch, 887 P.2d at 732. In Sullivan, we applied the duty to exercise ordinary care to keep sidewalks in a reasonably safe condition for public travel to a negligence case involving a slip on a coal-hole cover. Sullivan, 65 P.2d at 1175. To establish a breach of the city’s duty, the plaintiff had to show that a defect in the coal-hole cover existed. The issue was whether a reasonable person could have anticipated an accident on a coal-hole cover that had the defect of a worn band around it and was at least an eighth of an inch above the level of the surrounding sidewalk.

Noting that very few, if any, streets or highways can be kept so safe as to preclude the possibility of accidents, we held that when a defect is so slight that no prudent person could reasonably anticipate danger from the defect, but an accident happens that could have been guarded against with extraordinary care and foresight, the question of the defendant’s responsibility is one of law. Sullivan, 65 P.2d at 1176. We recognized that courts had denied recovery where the testimony showed that a sidewalk free of any defects was merely slippery and concluded that a reasonable person would not have anticipated that such a slight defect as the worn band around the coal-hole cover would likely cause an accident. Sullivan, 65 P.2d at 1176-77.

In Cooper v. Sisters of Charity (1994), 265 Mont. 205, 209, 875 P.2d 352, 353, the plaintiff caught her foot on a drain gate and fell. She did not come forward with expert testimony and thus was unable to show that the drain gate was unsafe or defective. In other words, she failed to raise a genuine issue of material fact. We concluded that as a matter of law, she failed to prove that the drain gate was unsafe or defective and was entitled to summary judgment. Cooper, 875 P.2d at 355.

In the case before us, the facts are undisputed. The design and construction of the sidewalk, including the pullbox, met all standards and specifications published by all applicable sources. In fact, the pullbox fell well within the range of acceptable inserts; its metal construction also fell well within the range of acceptable materials for inserts.

The Wileys’ claim that Lee Ebeling’s expert testimony on the physical properties of the cover, the non-existence of code violations, the decision on where to place the box, and the choice of material for the cover raises a genuine issue of material fact. However, Lee Ebeling acknowledged that he was unable to state an opinion on each of the four alleged issues of fact. Specifically, he did not have the requisite background facts to form an opinion on the placement of the pullbox. In summary, his testimony failed to establish either a standard of care or a breach of any standard of care.

Thus the issue before us is a question of law; did a defect or dangerous condition exist in the sidewalk of sufficient magnitude to cause a reasonable person to conclude that an accident was likely to occur as a result of that condition and, if so, did the State and the City have notice of the defect. See Sullivan, 65 P.2d at 1176. Although expert testimony established that the pullbox was twice as slippery as the sidewalk, the Wileys were unable to demonstrate that this condition fell below any acceptable standard or constituted a defect. Without showing that a defect or dangerous condition existed, the Wileys were not able to show that the State or the City breached its duty to them.

Relying on Johnson v. State (Alaska 1981), 636 P.2d 47, 56, the Wileys assert that it is not necessary for the State to have notice when the asserted dangerous condition is caused by the State or the City. Regardless, the Wileys must first show that a dangerous condition or defect existed. The summary judgment record before us does not establish a defect, much less a defect that a reasonably prudent person would have anticipated to cause an accident.

The District Court correctly found that reasonable minds could not differ concerning an absence of a genuine issue of material fact and that the State and the City were entitled to summary judgment as a matter of law. Because we hold that the State and the City did not breach their duty of care, we need not discuss the elements of causation and damages.

AFFIRMED.

JUSTICES GRAY, HUNT, TRIEWEILER and WEBER concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ANTHONY J. WOODS, Defendant and Appellant.
    No. 94-613.
    Submitted on Briefs July 6, 1995.
    Decided August 8, 1995.
    52 St.Rep. 762.
    272 Mont. 220.
    900 P.2d 320.

      For Appellant: James C. Bartlett; Hash, O’Brien & Bartlett, Kalispell.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál S. Wellenstein, Ass’t Attorney General, Helena; Valerie D. Wilson, Deputy Flathead County Attorney, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

Anthony J. Woods (Woods) appeals from the Judgment and Order of Conviction entered by the Eleventh Judicial District Court, Flathead County, on a jury verdict finding him guilty of operating a vehicle with an alcohol concentration of .10 or more. We reverse.

The dispositive issue on appeal is whether the District Court abused its discretion in admitting breath test evidence over Woods’ objection that a proper foundation was not established and, on that basis, erred in denying his motion to dismiss the charge.

Woods originally was charged in the Justice Court of Flathead County with violating § 61-8-406, MCA, by driving a vehicle while his alcohol concentration, as shown by analysis, was .10 or more. His motion to dismiss the charge was denied and he was found guilty of the offense. After judgment was entered, Woods appealed to the District Court.

A jury trial was held in the District Court on October 17, 1994. Deputy Sheriff Annette Holliday testified regarding her activities in arresting Woods, transporting him to the Flathead County Detention Center (Detention Center) and conducting sobriety tests and a breath test to measure Woods’ alcohol concentration. The Montana Department of Justice, Division of Forensic Science, breath analysis report form, reflecting Woods’ breath alcohol concentration (BAC) at .188, was admitted over Woods’ objection of insufficient foundation. Woods moved for dismissal or a directed verdict in his favor on the basis that the State had not listed a witness qualified to lay the necessary foundation for admission of the report form; the court denied the motion.

During Deputy Holliday’s continued testimony, Woods objected on foundation grounds to admission of the Intoxilyzer breath analysis report produced at the Detention Center, which also reflected Woods’ BAC at .188. The District Court admitted the exhibit. A videotape of Woods performing sobriety tests at the Detention Center was played for the jury.

At the conclusion of the State’s case, Woods renewed his motion to dismiss the charge and direct a verdict, on the basis that admission of the breath test evidence without the necessary foundation was impermissible and, absent that evidence, the State had failed to prove its case. The District Court again denied the motion.

The jury found Woods guilty of the misdemeanor offense of driving a vehicle with an alcohol concentration of .10 or more. Woods appeals.

Did the District Court abuse its discretion in admitting breath test evidence over Woods’ objection that a proper foundation was not established and, on that basis, err in denying his motion to dismiss the charge?

Woods was charged with violating § 61-8-406, MCA, by driving a vehicle while his alcohol concentration was .10 or more as shown by an analysis of his blood, breath or urine. Absolute liability attaches to commission of the offense; the State need not prove that the offense was committed knowingly, negligently or purposely. Sections 61-8-406 and 45-2-104, MCA. Thus, the critical proof necessary to establish commission of the offense is the blood, breath or urine test result.

The district court has broad discretion in determining whether evidence is relevant and admissible; absent a showing of abuse of discretion, we will not overturn the court’s determination. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380 (citation omitted). Here, given the offense charged and the necessity of the breath test results to establish that Woods committed the offense, error in admitting the breath test evidence would necessitate dismissal of the charge for failure of proof.

The State of Montana closely regulates breath analysis instruments utilized to determine the alcohol concentration of a person charged with an alcohol-related driving offense. See §§ 23.4.201 through 23.4.221, ARM. A defendant charged with such an offense is entitled to the procedural safeguards which are contained in the administrative rules. State v. West (1992), 252 Mont. 83, 89, 826 P.2d 940, 944; citing State v. O’Brian (1989), 236 Mont. 227, 229, 770 P.2d 507, 508.

The administrative rule at issue in this case provides, in pertinent part:

(1) Breath analysis instruments shall be field certified for proper calibration at least once every seven (7) days by a breath test specialist/senior operator, or in the event of a senior operator’s absence, his/her authorized designee, using a solution of ethyl alcohol approved by the division of forensic science and using the field certification report form for the breath analysis instrument being certified.

Section 23.4.213, ARM. Woods contends that the State failed to lay a foundation for his BAC test results by establishing compliance with § 23.4.213(1), ARM, and argues that, as a result, the BAC evidence was inadmissible.

The State concedes that it did not lay a proper foundation for admission of Woods’ BAC test results. No evidence whatsoever was introduced that the Intoxilyzer had been properly and timely calibrated as required by § 23.4.213(1), ARM. Absent the required foundation, we conclude that the District Court abused its discretion in admitting the breath test evidence. As a result, we hold that the court erred in denying Woods’ motion to dismiss the charge against him.

Reversed and remanded with instructions to enter an order of dismissal.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and LEAPHART concur.


author: JUSTICE WEBER JUSTICE NELSON

text:
    MONTANA POWER COMPANY, a Montana Corporation, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, a subsidiary of BURLINGTON NORTHERN, INC., Defendant and Appellant.
    No. 94-441.
    Heard and Submitted May 18, 1995.
    Decided July 25, 1995.
    52 St.Rep. 625.
    272 Mont. 224.
    900 P.2d 888.

      For Appellant: J. Daniel Hoven, Ken C. Crippen, Browning, Kaleczyc, Berry & Hoven, Helena.
    For Respondent: Joseph W. Sabol, Bozeman.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision of the Eighth Judicial District Court granting Montana Power Company’s (MPC) Preliminary Condemnation Order and Order of Possession of the easement through Burlington Northern’s (BN) property. We affirm and remand to the District Court as herein specified.

We restate the issues on appeal:

I. Did the District Court err when it found an easement through BN’s property was necessary for the intended use and subject to condemnation?

II. Did the District Court err when it found that MPC’s transmission line was a more necessary use?

III. Did the District Court err when it failed to include any of the requested provisions in its Order of Possession?

MPC has contracted with various railroads using wire-line permits to construct, operate, and maintain electric transmission lines through railroad rights-of-way for over fifty years. Currently, MPC operates transmission lines through such rights-of-way under 1,400 wire-line permits provided by BN.

In 1990, MPC determined additional facilities needed to be constructed in southwest Great Falls to adequately service its customers as required by law. The line’s construction cost approximately $2.2 million. BN does not dispute the need nor the location of the 100 kV transmission facility. MPC acquired easements by purchase on all private parcels of property along the proposed route for the transmission lines except for BN’s property. MPC offered to purchase an easement interest for the Great Falls transmission facility through BN’s property. BN offered to grant a wire-line permit instead. MPC claimed the permit’s revocability and indemnification clauses were onerous and rejected BN’s offer.

Subsequently BN offered an easement to MPC which incorporated a Memorandum of Understanding which BN claimed met MPC’s concerns regarding permanency while addressing the issue of indemnification which was of concern to BN. MPC rejected BN’s offer of an easement because MPC claimed the Memorandum of Understanding granted to BN the sole and exclusive option of revocation. Finally, in order to facilitate MPC’s request to begin construction of the transmission line, BN offered a revised wire-line permit extending the termination provision from 30 days to 180 days. MPC rejected this offer as well.

MPC filed a Complaint together with a request for an Order to Show Cause in the Eighth Judicial District Court to condemn an easement over BN’s property for the purpose of constructing, operating, and maintaining an electric transmission line. BN filed a motion for Summary Judgment in its favor with a supporting brief contending that MPC’s purpose could be accomplished through a wire-line permit historically used by the two parties. MPC filed a brief in opposition to BN’s motion and requested from the court a Preliminary Condemnation Order under § 70-30-203, MCA. The District Court found an easement was the minimum estate in BN’s land necessary for MPC’s proposed use as required for the public’s interest. The court denied BN’s motion for Summary Judgment and granted MPC’s Preliminary Condemnation Order.

Pursuant to statute, BN filed its Statement of Claim for $8,700— the value of the easement sought to be condemned. However, BN claimed the value represented that of the easement along with BN’s Memorandum of Understanding or subject to additional compensation for BN’s increased liability. After posting $8,700, MPC requested and was granted an Order of Possession. MPC then commenced construction of the electrical transmission facility. BN moved the court to reconsider this Order. The court denied BN’s motion.

From the District Court’s issuance of the Preliminary Condemnation Order and the Order of Possession, BN appeals.

Standard of Review

Our standard of review is set forth in Y A Bar Livestock Company v. Harkness (1994), [269 Mont. 239], 887 P.2d 1211, 1213, as follows:

This Court reviews the findings of a trial court sitting without a jury to determine if the court’s findings are clearly erroneous. Rule 52(a), M.R.Civ.P. A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

Issue I

Did the District Court err when it found an easement through BN’s property was necessary for the intended use and subject to condemnation?

Section 70-30-111, MCA, describes the required proof for a taking by condemnation:

Before property can be taken, the plaintiff must show by a preponderance of the evidence that the public interest requires the taking based on the following findings:
(1) that the use to which it is to be applied is a use authorized by law;
(2) that the taking is necessary to such use;
(3) if already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use;
(4) that an effort to obtain the interest sought to be condemned was made by submission of a written offer and that such offer was rejected.

Electric power lines are a public use authorized by law for the exercise of the right of eminent domain. Section 70-30-102(11), MCA.

In determining if the taking is necessary for the authorized use, BN cites to Montana Power Company v. Bokma (1969), 153 Mont. 390, 398, 457 P.2d 769, 774. In that case, we held necessity means “reasonable, requisite, and proper for the accomplishment of the end in view, under the particular circumstances of the case.” BN argues MPC’s condemned easement over BN’s railroad right-of-way is a greater interest than is necessary for the intended use. BN refers to Silver Bow County v. Hafer (1975), 166 Mont. 330, 333, 532 P.2d 691, 693, where we stated a condemning authority cannot acquire a greater interest or estate in the condemned property than the public use requires. To do so would obligate the public to pay for more than it needs.

BN contends an easement without any restrictions is too great an interest when a wire-line permit will permit the desired use. BN claims a wire-line permit includes the right of entry upon and occupation of land and is a right in land which may be taken for public use. See § 70-30-104(4), MCA. BN offered to MPC a wire-line permit which allowed for the location, construction, operation, maintenance, replacement and removal of MPC’s Great Falls transmission line. MPC rejected this offer.

In response to MPC’s concern about the wire-line permit’s lack of permanence and allowance for rent escalation, BN offered to MPC an Electric Transmission Line Non-exclusive Easement which incorporated a Memorandum of Understanding. BN claims the proffered easement was non-revocable and contained a one-time fee payment. Yet, BN argues MPC rejected this offer and insisted upon the condemnation of an unreasonably unrestricted easement.

BN alleges MPC sought an unrestricted easement because obtaining greater ownership rights was in the best interest of MPC’s shareholders. BN contends that allowing MPC to take an easement when a permit interest would suffice all in the name of shareholders’ best interests violates fundamental principles this Court has upheld in eminent domain proceedings.

MPC claims that for eighty years it has obtained wire-line permits from BN for constructing electrical lines throughout Montana. During that time, MPC showed that BN and its assignees subjected MPC to escalating fee provisions, restrictive indemnification provisions, and unilateral termination and relocation provisions. MPC contends it could no longer justify the permit process required to be followed by BN. A decision was made by MPC’s corporate management to seek and obtain when necessary an easement from BN for the construction, operation and maintenance of electrical transmission lines in BN’s railroad rights-of-way.

MPC concedes that it can construct, operate and maintain the electrical transmission facility through a wire-line permit. However, MPC claims the permit offered by BN was revocable without cause 100 days after receipt of notice by MPC and contained onerous indemnification and relocation provisions. Under that permit’s indemnification provisions, MPC argues it opens itself up to untold and unimagined exposure for BN’s negligence. MPC submits that parties should be responsible for their own negligent conduct.

Furthermore, MPC would not accept the unilateral termination provisions of the permit. MPC argues the permit is nothing more than a mere license as evidenced by its very terms. A license is revokable at will and is not an interest in land. An easement, however, is a non-possessory interest in the land of another. MPC argues this distinction is significant when resolving questions about the applicability of the statutes of fraud and the availability of compensation in condemnation actions.

MPC claims the Non-exclusive Easement proffered by BN is nothing more than a permit/license no matter what the name implies. MPC submits that history has taught the company it is no longer appropriate for MPC to accept BN’s wire-line permit, revised or not, or its supposed Non-exclusive Easement which, when coupled with the Memorandum of Understanding, grants to BN the sole and exclusive option of revocation.

Section 70-30-111, MCA, as previously set forth, requires that the plaintiff show by a preponderance of the evidence that the public interest requires the taking based on four specified findings. Sub-paragraph (1) requires a finding that the use which is to be applied is a use authorized by law. Section 70-30-102(11), MCA, lists electric power lines as a public use subject to eminent domain proceedings. MPC produced uncontradicted testimony about the area’s need for the electric transmission facility as well as the practicality of locating the line on BN’s right-of-way. BN, in fact, does not contest the need nor the location of the transmission line. We affirm the conclusions of the District Court that subparagraph (1) of § 70-30-111, MCA, has been met.

Subparagraph (3) of § 70-30-111, MCA, pertains to the more necessary public use question which is addressed in the next issue. Subparagraph (4) of that section requires a finding that an effort was made to obtain the interest by submission of a written offer and that such offer was rejected. Again, there is no dispute that MPC made such an offer to BN and that its offer was rejected.

We next discuss subparagraph (2), which requires a finding that the taking is necessary to such use. This Court has stated that “necessary” is not intended to mean absolute, but rather reasonable, requisite, and proper. Montana Power Company, 457 P.2d at 774. As previously mentioned, MPC has submitted uncontradicted testimony as to the need for the electric transmission facility and practicality of locating it on the BN’s right-of-way and BN does not contest that need nor the location. We conclude that the record contains substantial credible evidence to support the District Court’s finding and conclusion that there was a public need for a transmission line in southwest Great Falls which would run along BN’s right-of-way. We note that BN produced no evidence to contradict the choice of location or the public’s need for the proposed line.

MPC contends that § 70-30-206, MCA, gives the District Court the power to determine if the interest sought to be condemned is necessary. In pertinent part § 70-30-206, MCA, provides:

70-30-206. Powers of court — preliminary condemnation order. (1) The court has power to:
(a) regulate and determine the place and manner of making the connections and crossings and enjoying the common uses mentioned in 70-30-103(l)(a) ...
(b) limit the interest in real property sought to be appropriated if in the opinion of the court the interest sought is not necessary.

In pertinent part § 70-30-103, MCA, provides:

70-30-103. What private property may be taken. (1) The private property which may be taken under this chapter includes:
(e) all rights-of-way for any and all the purposes mentioned in 70-30-102 and any and all structures and improvements thereon, and the lands held and used in connection therewith must be subject to be connected with, crossed, or intersected by any other rights-of-way of improvements or structures thereon. They must also be subject to a limited use in common with the owner thereof when necessary; but such uses, crossings, intersections, and connections must be made in manner most compatible with the greatest public benefit and least private injury.

MPC contends that under the foregoing sections, the District Court had the discretion to determine if the interest sought to be condemned was necessary. It further contends that sufficient evidence was produced to establish the necessity of taking, and that, as a result, BN now has the burden of proving the taking was excessive or arbitrary and therefore unnecessary. Lincoln/Lewis & Clark County Sewer District v. Bossing (1985), 215 Mont. 235, 239, 696 P.2d 989, 991. MPC further stresses that the District Court found no basis on which to limit the interest sought after consideration of all of the evidence presented.

The District Court concluded “an easement for so long as the line is necessary is the minimum estate in [BN’s] land required by MPC.” As a result, the District Court concluded “MPC is entitled to a preliminary condemnation order for the easement sought to be condemned over, through and across the lands of [BN] as specifically described in Exhibit ‘A’ attached to [MPC’s] Complaint for the construction of an electrical transmission line.”

Applying the above-described standard of review, we hold that the District Court’s conclusion, that an easement for the electric power transmission line is necessary, is supported by substantial credible evidence. We further hold that the District Court did not misapprehend the effect of the evidence and that our review of the record does not suggest to this Court that a mistake has been committed.

The dissent points out that it is possible for MPC to locate, construct, operate, maintain and remove the transmission facility with a wire-line permit. BN’s proposed wire-line permit contained a 180 day termination provision. There is substantial evidence in the record to support a conclusion that the termination provision is unreasonable and improper considering the expenses of over $2 million to initially construct the facility and the length of time which it takes to reconstruct or move such a facility as well as the public’s need for this particular facility. In response to this suggestion, we therefore conclude that there is substantial evidence to support the finding of the District Court that an easement was necessary as compared to such a wire-line permit. In addition, we conclude that the District Court did not misapprehend the evidence nor make a mistake in its findings.

We hold that the District Court did not err when it found an easement through BN’s property was necessary for the intended use and subject to condemnation.

Issue II

Did the District Court err when it found that MPC’s transmission line was a more necessary use?

Section 70-30-111(3), MCA, states that if the property is already appropriated to some public use, the public use to which it is condemned must be a more necessary use.

BN claims the District Court misapplied the legal analysis in its determination of “more necessary use”. The District Court found the two public uses compatible, but then went on to find MPC’s public use a more necessary use than that of BN. BN argues finding the uses compatible in the first instance made it unnecessary and inappropriate to make the determination of a more necessary use in favor of MPC. BN alleges the court was confused on this issue, and, therefore, erred in not including in its grant to MPC the historical provisions necessary to protect BN’s pre-existing railroad.

MPC asserts the Legislature of the State of Montana intended the classification of a “more necessary public use” to be required when a proposed use would destroy a prior one. Cocanougher v. Zeigler (1941), 112 Mont. 76, 112 P.2d 1058. MPC argues a mere inconvenience to the prior use or the occurrence of compensable damages is not sufficient to deny a grant of eminent domain for the proposed use. MPC alleges any potential damage to BN’s operation would be marginal; therefore, the District Court correctly found the two uses compatible.

Paragraph 7(c) of the District Court’s finding of fact states:

That MPC has shown by a preponderance of the evidence that the public interest requires the taking of a portion of [BN]’s right-of-way and:
c. That notwithstanding the fact that the right-of-way is already appropriated for a public use that the easement sought to be condemned by MPC for the electrical transmission line is a more necessary public use and one which is compatible with the use of [BN’s] land;

Section 70-30-111(3), MCA, provides that if the property is already appropriated to a public use, the use to which it is to be applied must be determined by a preponderance of the evidence to be a more necessary public use. In Montana Talc Co. v. Cyprus Mines Corp. (1987), 229 Mont. 491, 502-04, 748 P.2d 444, 451-52 (citing Butte, Anaconda & Pacific Railway Company v. The Montana Union Railway Company (1895), 16 Mont. 504, 538, 41 P. 232, 244), we recognized that “ ‘our legislature has imposed upon the court the additional responsibility of judicially determining whether the use to which the appellants did or would put the particular lands is a more necessary one to the public than that to which they have already been appropriated. ...’ ” In interpreting the “more necessary” requirement of § 70-30-111(3), MCA, we have held that this determination affects condemnation proceedings only when we have two public uses that are not compatible uses. Montana Talc, 748 P.2d at 452; Cocanougher, 112 P.2d at 1061; Butte, Anaconda & Pacific, 41 P. at 244.

In Cocanougher, the issue presented was whether the plaintiff and defendant could have a joint use of a water supply ditch where one use was not more necessary than the other. In that case, the Court stated:

The next question that arises concerns the legal question of whether or not, as a matter of law, one may condemn a right-of-way through a ditch on another’s land where the ditch is being used to irrigate the latter’s land. Defendant invokes subdivision 3 of section 9936, Revised Codes [same as subparagraph (3) of § 70-30-111, MCA]. Under this subdivision the real question is: Will the taking of this private property, already dedicated to one public use, destroy the prior public use? Or, in other words, will the enlargement and joint use of the ditch in question result in destroying or materially injuring the defendant’s right to the use of the ditch? That subdivision can only apply where there is a taking of the property dedicated to a public use and appropriating it to another public use. The implication is clear that the legislature had in mind in enacting that subdivision, when it speaks of a more necessary public use than that to which the property is already dedicated, that the latter use is such as will destroy the prior use. That not being the case, subdivision 3 does not inhibit the condemnation here sought.

Cocanougher, 112 P.2d at 1060.

MPC seeks to condemn private property already dedicated to one public use in order for it to provide a different public use. In following Cocanougher, we must ask whether MPC’s proposed use will destroy or materially injure BN’s prior use. The District Court found the two public uses to be compatible uses. BN and MPC both agree that the two uses could be made compatible. The latter use does not inhibit the prior use; therefore, we conclude subsection (3) of § 70-30-111, MCA, does not apply to these condemnation procedures.

In Montana Talc Co., we refer to Cocanougher’s extensive discussion of the requirement in § 70-30-111(3), MCA, for a “more necessary” public use. We concluded:

The proposed use must be “more necessary” where the effect of granting the succeeding public use condemnation will deprive the first owner of his use altogether. If the first owner will be completely deprived of his public use of appropriated property, such that his use will be defeated or seriously interfered with by the proposed condemnor’s right if granted, the statute requiring a “more necessary” public use comes into play. The requirement of a more necessary public use “does not preclude condemnation for a joint use which will not interfere with the use thereof by the owner.” Cocanougher, 112 P.2d at 1061. (Emphasis added.)

Montana Talc Co., 748 P.2d at 454.

BN’s argument that “compatibility” and “more necessary” are inconsistent terms fails. A more necessary use can also be a compatible use. The District Court made a “more necessary” determination under the erroneous assumption that such determination was required under the statute. The court was not required to make that determination because MPC’s use would not destroy nor materially injure BN’s prior use. In any event, we conclude the court’s “more necessary’ determination is not reversible error because the court also found the two uses compatible.

We hold the District Court did not commit reversible error when it found that MPC’s transmission line was a more necessary use.

Issue III

Did the District Court err when it failed to include any of the requested provisions in its Order of Possession?

The District Court granted to MPC the easement attached to MPC’s complaint — the Overhead Electric Right-of-way Easement. That easement gave to MPC the right “to construct, operate, maintain, replace and remove an electric transmission line with electric distribution underbuild facilities, associated guy facilities, communication system and necessary appurtenances over, under, along and across that certain real property. ...” The easement included the “reasonable right of ingress to and egress from said transmission line right of way over lands of the Grantor using existing roads and trails where practicable, and the right to clear and remove all timber and brush from the right of way ... and to cut and remove such trees outside of such right of way which may endanger said line or lines.”

BN claims any grant to MPC should also address the location of poles, the design standards, clearances of lines, crossings, coordination during construction of the transmission line, indemnification for damages caused by or resulting from the operation of the transmission line and its relocation. Without these provisions, BN argues it may be unable to meet its statutory obligations to keep timely fixed schedules, furnish shipping facilities, construct drains and ditches, maintain fences and fire guards, and construct and maintain commercial spur tracks.

In addition, BN contends the District Court’s grant to MPC unreasonably subjects BN to increased liability. BN’s witness testified to the potential safety and operational hazards of locating high voltage transmission lines near steel railroad operations. BN claims the two parties have co-existed in the past solely because of the provisions included in the historical agreements. BN asks that the Court insert the provisions of the Memorandum of Understanding. The key provisions of such memorandum are the following:

13. Montana Power Company does hereby release, indemnify, and save harmless [BN] ... from and against all loss, damages, claims, demands, actions, causes of action, costs and expenses of every character which may result from any injury to or death of any person whomsoever, including but not limited to employees and agents of the parties hereto, or from loss of or damage to property of any kind or nature to whomsoever belonging, including but not limited to property owned by, leased to, or in the care, custody, and control of the parties hereto, when such injury, death, loss or damage is caused by or contributed to by, or arises from, the construction, installation, operation, maintenance, condition, use, removal or existence of the electric transmission line upon or adjacent to the Premises.
14. It is understood by the parties that said electric transmission line will be in danger of damage or destruction by fire or explosion incident to the operation, maintenance, or improvement of the railway, and [MPC] accepts the [easement] subject to such dangers. It is, therefore, agreed, as one of the material considerations for such ... easement ... that [MPC] hereby assumes all risk of loss, damage, or destruction to said electric transmission line without regard to whether such loss be occasioned by fire or sparks from locomotives, or other causes incident to or arising from the movement of locomotives, trains, or cars of any kind, misaligned switches, or in any respect from the operation, maintenance, or improvement of the railway, or to whether such loss or damage be the result of negligence or misconduct or any person in the employ or services of [BN], or of defective appliances, engines or machinery, and [MPC] does hereby save and hold harmless [BN] from all such damage, claims, and losses to said electric transmission line.
15. Prior to construction, operation, maintenance, and/or removal of the transmission line or any part of the premises described on the electric transmission line ... easement..., [MPC] shall furnish to [BN] a Railroad Protective Liability Policy. Such Railroad Protective Liability Policy shall list [BN] as the named insured and shall provide a minimum of Two Million Dollars ($2,000,000) for each bodily injury claim and property damage claim with an aggregate of Six Million Dollars ($6,000,000). In addition, [MPC] shall furnish to [BN] a Commercial General Liability Insurance Policy ... listing Burlington Northern Railroad Company as the named insured. Such Commercial General Liability Policy shall provide a minimum of One Million Dollars ($1,000,000) per occurrence for claims arising out of bodily injury and property damage. [MPC] further agrees that prior to construction, operation, maintenance and/or removal of the transmission line, [BN] must expressly approve of the types and amounts of insurance coverage provided pursuant to this paragraph.
19. [MPC] agrees that if [BN] determines that the location of the electric transmission line must be changed for the relocation or placement of railroad tracks or operational improvements, or for reasons beyond the control of [BN], [BN] shall notify [MPC] of such plans and [BN] shall further use its best reasonable efforts to secure an alternative location for the electric transmission line. [MPC] shall then move the affected electric transmission line to such alternative location at [MPC]’s own expense, cost and risk as soon as practicable.
22. If the Premises described, or any part thereof, shall at any time cease to be used by [MPC] for the purposes of conducting electric currents through the electric transmission line, or should the Premises be converted to any other use whatsoever, or should [MPC] fail to perform any of the conditions contained in [this easement], then and in any such event, [BN], its successors and assigns, may, at its or their option, re-enter, retake and hold the Premises as of the present estate of [BN] without compensation to [MPC] or any other person whomsoever, for improvements or property removed, taken or destroyed, or liability for loss of, or damage to any part of the Premises or the improvements thereon, and all the right, title, interest, benefits and enjoyment of [MPC] in the premises, for any purposes whatsoever, shall immediately cease.

Although MPC states in its brief that BN’s wire-line permit and Non-exclusive Easement are untenable due to their revocability provisions (MPC specifically refers to ¶22 of BN’s Memorandum of Understanding), the transcript of the proceedings reveals MPC agreed that both parties could be easily accommodated as to this issue. It is the indemnification provisions which the court found to be the real stumbling block.

MPC argued at the hearing that conditions included in BN’s Memorandum of Understanding relating to design standards, coordination between the parties, safety, train delay and relocation should not be attached to the documents for condemnation because “it was always common place and common sense that the district manager notified BN before they came on the property .... [and, in addition,] they never intentionally did anything unsafe or that would cause harm or damage to BN or anybody else.” MPC alleges BN insists upon the attachment of the provisions in the Memorandum of Understanding in order to unjustly limit the interest condemned.

In the District Court’s Memorandum Decision attached to its Order Denying Defendant’s Motion for Reconsideration of Order of Possession, the court concluded there was no statutory basis or requirement that protective conditions be set forth in the said Order of Possession. We agree that the eminent domain statutes do not require protective conditions in an easement. However, the Montana Legislature has given to the courts the power to set forth protective provisions in an order for condemnation.

70-30-206. (1) The court has power to:
(a) regulate and determine the place and manner of making the connections and crossings and enjoying the common uses mentioned in 70-30-103(l)(e) and of the occupying of canyons, passes, and defiles for railroad purposes, as permitted and regulated by the laws of this state or of the United States ... (Emphasis added.)

The common uses extend to:

70-30-103. (1) The private property which may be taken under this chapter includes:
(e) all rights-of-way for any and all the purposes mentioned in 70-30-102 and any and all structures and improvements thereon, and the lands held and used in connection therewith must be subject to be connected with, crossed, or intersected by any other right-of-way of improvements or structures thereon. They must also be subject to a limited use in common with the owner thereof when necessary; but such uses, crossings, intersections, and connections must be made in manner most compatible with the greatest public benefit and least private injury. ...

Both railways and electric power lines are public uses enumerated in this chapter. Section 70-30-102(10),(11), MCA.

Under the facts of this case, we hold that the District Court did not commit reversible error when it failed to include any of the requested provisions in its Order of Possession. However, the District Court properly should have considered the foregoing statutes and determined if any of the proposed conditions should have been inserted in its Preliminary Condemnation Order or its Order of Possession. In the absence of such a determination, we hold the District Court shall determine if any of the conditions proposed by either party should be inserted in the subsequent Final Order of Condemnation.

In its Final Order of Condemnation, the court must describe the property condemned and the purposes of such condemnation. Section 70-30-309, MCA. We direct the District Court to hold a hearing and determine what provisions, if any, should be included in its Final Order of Condemnation. This direction requires the District Court to determine, in its discretion, if any of the provisions requested by either party should be included in its Final Order.

The dissent refers to State Hwy. Comm’n v. Lavoie (1970), 155 Mont. 39, 466 P.2d 594, where the district court required the condemnee to submit its construction plans to the court for its approval. In that case, we determined the court exceeded its authority because “the court for rather obvious reasons is not qualified nor staffed to supervise the design or construction of the facility.” Lavoie, 466 P.2d at 599. Here, we are not directing the court to review the construction of MPC’s transmission facility. We are directing the court to consider terms of the easement which allow the two uses to co-exist. As in Lavoie, the “end result” is coordinated uses in common to achieve the “greatest public benefit and the least private injury.” Referring to Lavoie, 466 P.2d at 597, 599; and § 70-30-103(1)(e).

Lavoie involved the condemnation of private land for an interstate highway. In that case, the district court entered, as part of its preliminary condemnation order and order of possession, an order directing the Highway Commission to construct a passage across the proposed highway which would allow defendants to access their property now bisected by the highway. Lavoie, 466 P.2d at 595. We affirmed this part of the court’s order in Lavoie. Lavoie, 466 P.2d at 599. The case at hand is comparable to Lavoie in that we have two uses that must be coordinated to achieve the greatest public benefit and the least private injury. In a similar manner to Lavoie which considered reasonable access for the condemnee, we conclude it is reasonable under these circumstances for the District Court to consider what terms, if any, should be included in its Final Order of Condemnation.

We affirm the District Court’s Preliminary Condemnation Order and its Order of Possession. On remand the District Court shall take such action, including the holding of a hearing, which it finds to be necessary in order to comply with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT, LEAPHART and JOHN R. CHRISTENSEN, District Judge, sitting for JUSTICE GRAY concur.

JUSTICE NELSON

respectfully dissents.

I conclude that under the facts of this case and by reason of the findings made by the District Court, plaintiff has failed as a matter of law in its burden of proof under § 70-30-111, MCA. Moreover, as a consequence of our straining to interpret the eminent domain statutes to justify the result, we have also, of necessity, but improperly, now embroiled the District Court in the task of writing what is, essentially, a contract for Montana Power Company and Burlington Northern Railroad.

Among other requirements, § 70-30-111, MCA, mandates that before property can be taken by condemnation, the plaintiff must prove and the trial court must find:

(2) that the taking is necessary to such use; [and]
(3) if already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use. ...

As to subsection (2), the record in this case demonstrates that MPC’s taking of BN’s property by eminent domain was not necessary to MPC’s location, construction and maintenance of its powerline. In point of fact, the evidence showed unequivocally that MPC currently operates and for decades has operated, miles upon miles of transmission line under well over a thousand wire-line permits of the very sort at issue here without any of the drastic consequences that it argues now justifies condemnation. In that time only one easement was issued by BN to MPC. MPC officials testified in depositions that MPC could locate, construct, operate, maintain, replace and remove the Great Falls electric transmission line under a wire-line permit containing the permit fee, revocation, relocation and indemnification provisions objected to. In fact, the transmission line was located and constructed on and over BN’s property during the pendency of this litigation.

While MPC maintains that the same wire-line permit provisions that it has operated under for years are now unacceptable and onerous, the record clearly demonstrates that it has and does and would, in this case, locate, construct, operate, maintain, inspect, replace and remove its transmission line under a wire-line permit without the necessity of taking BN’s property by eminent domain.

In Silver Bow County v. Hafer (1975), 166 Mont. 330, 532 P.2d 691, we held to the long established principle in condemnation cases that it is an unconstitutional taking to allow the condemnor to acquire a greater interest or estate in the condemned property than the public use requires. We stated:

It necessarily follows from the principle that property cannot constitutionally be taken by eminent domain except for the public use, that no more property can be taken by eminent domain than the public use requires, since all that might be appropriated in excess of the public needs would not be taken for the public use. While considerable latitude is allowed in providing for the anticipated expansion of the requirements of the public, the rule itself is well established, and applies both to the amount of property to be acquired for public use and to the estate or interest acquired in such property. If an easement will satisfy the public needs, to take the fee would be unjust to the owner, who is entitled to retain whatever the public needs do not require, and to the public, which should not be obliged to pay for more than it needs. (Emphasis added.)

Silver Bow County, 532 P.2d at 693. Necessity contemplates that which is “reasonably requisite and proper for the accomplishment of the purpose for which it is sought under the peculiar circumstances of each case.” State Highway Com’n v. Crossen-Nissen Co. (1965), 145 Mont. 251, 254, 400 P.2d 283, 284.

As stated above, § 70-30-111, MCA, requires that “[b]efore property can be taken, the plaintiff must show by a preponderance of the evidence that the public interest requires the taking based on [a finding]... that the taking is necessary to such use.” (Emphasis added). In its discussion of this statutory requirement, the majority misses the point completely. This statutory requirement does not focus on whether the use (here, the transmission line) is necessary, but, rather, on whether the taking (in this case an unrestricted easement versus a wire-line permit) is necessary to such use. No one, including BN, maintains that it is not necessary that MPC construct its transmission line. That we gratuitously conclude that the record supports what everyone has already conceded does not validate our erroneous application of this statutory requirement. We have effectively merged the requirements of subsections (1) and (2) of the statute. Now, if the condemnor shows that the public use is lawful and that it needs the property, that ends the inquiry; that the manner of taking sought may not be required to obtain the use is no longer of consequence. MPC’s burden under subsection (2) of the statute was to prove that taking by unrestricted easement was necessary to locate, construct, operate and maintain its transmission line. The proof was to the contrary: taking by unrestricted easement was not necessary to such use.

On the record here, it was not “necessary” that MPC take by condemnation an easement on BN’s property to accomplish the location, construction, maintenance and operation of its transmission line. That could and would have been accomplished, as it had many, many times in the past under the offered wire-line permit. In condemning BN’s property under such circumstances, MPC has unconstitutionally acquired a greater interest and estate in that property than the public use requires.

While it may be more advantageous in a number of ways for MPC to construct, maintain and operate its transmission line without any of the restrictions imposed by BN, I find no authority for the proposition that the condemnation statutes should be used merely to insure that the condemnor be placed in a more favorable position than it otherwise could through negotiation or resort to other legal remedies. While MPC and the majority raise the specter of BN cancelling one of its wire-line permits after the expenditure of millions of dollars in construction costs, the record does not reflect that has actually happened in the lengthy history that MPC has been locating and maintaining powerlines on BN property, and I suspect if that had been BN’s pattern, MPC would have been in court decades before this. The courts have no business in this dispute, and the condemnation statutes have been misused. Accordingly, I dissent from our decision on Issue I.

With respect to Issue II, the District Court found that MPC’s transmission line is a more necessary use than BN’s railroad operation and that the two uses are compatible. These two findings are inconsistent with each other under our previous interpretations of subsection (3) of § 70-30-111, MCA. In Cocanougher v. Zeigler (1941), 112 Mont. 76, 112 P.2d 1058, we held that the issue of whether one public use is “more necessary’ than another public use is not reached unless the proposed use and the pre-existing use cannot compatibly co-exist on the same property and that the proposed use would destroy the pre-existing use. Cocanougher, 112 P.2d at 1060. In Montana Talc Co. v. Cyprus Mines Corp. (1987), 229 Mont. 491, 748 P.2d 444, we defined the inquiry as being whether the proposed use would defeat or seriously interfere with the pre-existing use. Montana Talc, 748 P.2d at 452.

On the record here it is clear that not only could MPC’s and BN’s public uses co-exist without serious interference on the same property, but that, historically, such uses have and currently do so co-exist under the very provisions of the wire-line agreements to which MPC now objects. Accordingly, under our case law, it was improper for the District Court to even reach the issue of “more necessary” use given its finding that the two uses were compatible.

Aside from the District Court’s inconsistent findings, the real problem here, however, is alluded to in the majority’s opinion. While MPC’s use and BN’s use of BN’s property “could be made compatible,” the two uses are not now compatible under the unrestricted easement granted by the court. Hence, we conclude that it is necessary to send this matter back to the District Court to put into the easement at least some of the provisions that have been historically included in the wire-line permits so that the two uses will be compatible. That, of course, begs the question: If the two uses were compatible under the provisions included in the wire-line permits historically utilized by the parties and are not compatible under the unrestricted easement granted by the court, thus necessitating at least some of the permit provisions being put back into the easement, what exactly has the instant condemnation accomplished? The answer to that question is simple: This condemnation has allowed MPC to take a greater estate in BN’s property than was necessary to accomplish the use.

Again, our discussion here and under Issue I, demonstrates that the eminent domain statutes have been misused, and prior case law has been ignored. Accordingly, I dissent from our decision on Issue II.

Finally, in Issue III, we come face to face with the consequences of our decisions on Issues I and II. It is important to reiterate that for decades MPC has successfully located, operated and maintained its transmission lines on and over BN property via the use of wire-line permits. There is really no dispute that, if it had not successfully condemned BN’s property, MPC could have and would have located, operated and maintained the transmission line involved in this case under a wire-line permit. Reduced to its essentials, the problem is that MPC became dissatisfied with having to live with the various restrictions and requirements which BN imposed on the granting of its wire-line permits, but which, nevertheless, were part and parcel of the parties’ compatible and co-existent use of BN’s property for decades. Depending on perspective, the restrictions were either onerous, threatening and unfair or necessary to insure the safe and effective operation of a high tension powerline on and over a metal-intensive railroad.

The point to be made is that, without the intervention of the courts, MPC and BN have successfully dealt with this situation for years and would just as likely have continued to successfully deal with this situation in the future if left to their own devices. Importantly, there was no specific instance of BN wrongfully revoking one of MPC’s wire-line permits or seeking to indemnify its own negligence at MPC’s expense alleged or before the court. Had that been the case, then MPC no doubt would have had grounds to pursue other appropriate legal remedies through the courts.

Rather, what brought this case to court was a dispute over the terms of a proposed contract — a wire-line permit — and speculation about what BN might do under the contract proposed. Under such circumstances, the condemnation statutes are not the appropriate vehicle to resolve that dispute, and if MPC had been held to its burden of proof under § 70-30-111(2), MCA, no condemnation order would have been issued. The parties would have been simply left to work out the details of their respective operations or to seek court intervention in the event of some actual problem with some specific permit or incident.

Now, however, since we have upheld the District Court’s condemnation of BN’s property, MPC has the right to occupy that property without any of the restrictions that are likely necessary to protect BN’s operations and the public safety. Even we recognize that situation is unwise and unworkable. So to remedy that, we have instructed the trial court to determine and order, the terms governing the parties relationship — terms that they should have (and would have) negotiated and written themselves via contract if left to their own devices. Leaving aside the issue of the value, technical and business judgments that the District Court is going to have to make to accomplish that and the question of why a district court has any particular expertise to determine the rules and minutiae regulating the location, operation, maintenance, and replacement of a high tension powerline on and over a busy railroad, there is a more fundamental legal problem involved.

Quite simply, there is no authority in the condemnation statutes which would allow the District Court to do what we have now ordered it to do. At least the District Court recognized that problem when it concluded that there was “no statutory basis or requirement that protective conditions be set forth in the said Order of Possession.” Moreover, our reliance on § 70-30-206, MCA, is misplaced and runs directly counter to our previous interpretation of the limited authority of the district court under that statute. In State Highway Commission v. Lavoie (1970), 155 Mont. 39, 466 P.2d 594, we held that while the District Court was empowered to order the end result — i.e. the crossing itself — it was not authorized to supervise the minutiae of the design and construction of the facility. We stated:

However, the district court, in an excess of caution and concern that proper access be provided, added the additional requirement that “The plans are subject to approval by this Court.” This the district court was not empowered to do. Details of engineering design and construction are within the purview of the activities of the Highway Commission; and, while the district court is empowered to order a certain end result (as by here ordering two lane access over the Houle Creek Road), the court for rather obvious reasons is not qualified nor staffed to supervise the design or construction of the facility. Adequate remedies are available both to the court and to the property owner to ensure compliance with the court’s order.

Lavoie, 466 P.2d at 599. While the majority seeks to distinguish Lavoie, its distinction is without a meaningful difference.

Moreover, we stated in Lincoln/Lewis & Clark Cty. Sewer v. Bossing (1985), 215 Mont. 235, 696 P.2d 989, that “[c]ourts generally do not have the power to determine what public improvements shall be constructed, where they shall be located, and when the power of eminent domain shall be exercised.” Lincoln/Lewis, 696 P.2d at 991. If we have interpreted our eminent domain statutes as to preclude the courts from those powers, it follows that courts, similarly, do not have the power to condition the condemnation order on detailed conditions as to how the parties are to mutually utilize the condemned property.

Having lost sight of our obligation to drain the swamp, we have, worse, thrown the trial court into the water with instructions to subdue the alligators. Accordingly, I also respectfully dissent from our decision on Issue III.