No. 87-186
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
MONTANA TALC COMPANY, a joint venture;
MERIDIAN MINERALS COMPANY, a corporation;
and WESTMONT MINING, INC., a corporation,
formerly NICOR MINERAL VENTURES, INC.,
Plaintiffs and Appellants,
-VS-
CYPRUS MINES CORPORATION, a Delaware Corp.;
CYPRUS INDUSTRIAL MINERALS CORPORATION, a
Delaware corp.; and UNKNOWN OTHERS,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Madison,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Holland & Hart; Stephen H. Foster argued, Billings,
Montana
Davis, Graham & Stubbs; Brian T. Dolan, Joseph P.
McMahon, Jr. argued, Denver, Colorado
For Respondent:
Poore, Roth & Robinson; Urban L . Roth, Thomas M.
Melsch argued, Butte, Montana
For Amicus Curiae:
Gough, Shanahan, Johnson & Waterman; William H.
Coldiron, Montana Mining Assoc., Helena, Montana
Submitted: October 27, 1987
Decided: December 28, 1987
Filed: 1 % 7 ; .jr
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
A summary judgment was entered by the District Court,
Fifth Judicial District, Madison County, against Montana Talc
Company in its effort to obtain by eminent domain open-pit
mining excavation rights on real property owned by Cyprus
Mines Corporation.
The District Court ruled in essence that an open-pit
excavation on the land of another for the purpose of mining
an ore body on adjacent land is not an authorized public use
under Montana condemnation law; that in this case, Montana
Talc Company could not prove that the proposed open-pit
excavation was a more necessary public use under S
70-30-111(3), MCA; and that in any event, Montana's Landowner
Notification Act gave Cyprus Mines Corporation a right to
veto Montana Talc Company's condemnation action.
On consideration, we determine that an open-pit
excavation necessary to wbackslope" the mining of an ore body
is an authorized public use for which condemnation may be
had, that the Landowner Notification Act is ineffectual in
this case to prevent the condemnation, and we remand this
cause to the District Court for further proceedings in
accordance with this Opinion.
Montana Talc Company is a joint venture of Meridian
Minerals Company and Nicor Mineral Ventures, Inc. (the latter
now Westmont Mining, Inc.). Montana Talc Conlpany opened an
open-pit talc mine in the Northwest Quarter of Section 9,
Township 9 South, Range 1 West, MPM (Section 9) in Madison
County.
Cyprus Mines Corporation, Cyprus Industrial Minerals
Corporation and Cyprus Minerals Company (collectively Cyprus)
are a competing talc company, well established in the
business. Cyprus operates an open-pit talc mine on Section 4
in the same township and range, which section abuts and is
immediately north of Section 9. Cyprus owns the surface
rights and the mineral rights to Section 4. In addition, it
owns the surface rights to Section 9. Cyprus has mined and
produced talc from an open-pit mine elsewhere in Section 4
for several decades.
In Section 9, there is a large body of commercial
quality talc ore situated just south of the joint boundary of
Sections 4 and 9. Montana Talc Company, as a joint venture,
has acquired the right to mine the talc ore body in Section 9
by mining lease or like instruments from the owner of the
mineral ore body.
The Montana Talc ore body contains 1,535,000 tons of
high grade talc ore. It appears from the record that the
most efficient, economical and productive method of mining
this talc ore deposit is by construction of an open-pit mine.
Montana Talc has already excavated 11 acres on Section 9 for
that purpose. Montana Talc's engineers have determined that
to mine completely the large ore body of talc ore, 35 acres
of surface area will be required. Since the ore body is
located immediately south of the boundary of Sections 4 and
9, of the 35 necessary surface acres, Montana Talc must
obtain 14 adjacent acres in Section 4 owned by Cyprus, and an
additional 5 acres in Section 4 to provide the necessary
buffer and safety zone around its open-pit.
The perimeter of the surface of an open-pit mine
operation is necessarily larger than the perimeter of the ore
body that is mined. The sides of the open-pit descend from
the perimeter in somewhat conical fashion (depending on land
contour and the efficient removal of ore), to the underlying
ore body. The angle of the slope of the sides of the pit is
determined principally by two considerations, the width of
roads necessary for vehicles to transport the mined ore from
the bottom of the pit along the sides of the pit to the
surface, and an angle of repose sufficient to support the
roads and to keep the sides of the pit (backslope) from
sloughing or subsiding into and upon those working in it.
In this case, as the proposed open-pit would be widened
and deepened, the roads along the sides of the pit
(backslope) would provide access to the ore body and a means
of removing ore and overburden and safely transporting men
and equipment to and from the ore body.
Montana Talc has attempted to obtain from Cyprus by
purchase or otherwise, such real estate interest as may be
necessary for the construction of its open-pit mine,
extending into Section 4. Cyprus has refused to negotiate,
and has indicated it would never freely consent.
A further complicating factor is that Cyprus has found a
talc ore body in Section 4 which is near the south boundary
of the section. It contends that the open-pit excavation
proposed by Montana Talc would expose its newly-found ore
body on Section 4. Cyprus contends that it has begun plans
to mine that ore body and that its right to do so, where it
owns both the surface and the underlying minerals cannot be
usurped through condemnation for Montana Talc's open-pit. In
its attempt at negotiation with Cyprus, Montana Talc has
offered to stockpile, jointly mine or otherwise protect
Cyprus' rights to such talc ore as its open-pit might
encounter.
Montana Talc began mining its ore body in 1984. After
negotiations with Cyprus failed, it began this action in the
Madison County District Court for the purpose of condemning
so much of the Section 4 surface, above described, as would
be necessary for its open-pit operation to mine the ore body
in Section 9. The District Court, by summary judgment,
denied condemnation to Montana Talc on the grounds we have
earlier stated and so the cause comes to us now on Montana
Talc's appeal.
For the purposes of our discussion, we will assume that
Montana Talc Company as a joint venture stands in the shoes
of the owner of the talc ore body in Section 9. To maintain
clarity, we will refer to Montana Talc as the owner of that
ore body.
- - Construction - - -
Is the of a Backslope - - Open-Pit - -an
for an Mine
Authorized Public Use Under Montana Condemnation Law?
The District Court concluded that the rim of Montana
Talc's existing open-pit mine on Section 9 could not be
expanded over and upon the surface of Section 4 under Section
70-30-102(15), MCA, unless the condemnor owned the minerals
in Section 4. It further concluded that the roads along the
backslope of an open-pit mine could not be considered "roads"
essential to the operation of the condemnor's open-pit mine
as a public use under S 70-30-102(5), MCA.
In support of the District Court, Cyprus contends: that
in order to obtain condemnation, Montana Talc must find the
authority in the clear language of the eminent domain
statutes; that the condemnation statutes nust be strictly
construed, Kipp v. Davis-Daly Copper Company (1910), 41 Mont.
509, 110 P. 237; that there is no implied authority given to
Montana Talc in either subsections (5) or (15) to condemn the
subject property; that a "backslope" is not a "road" under
subsection (5) and that eminent domain authority under
subsection (15) is limited to the surface under which Montana
Talc is the owner of the minerals.
We take it as given that private individuals and
corporations have no inherent power of eminent domain. For
them as for state agencies, the authority to condemn, if any,
must derive from a legislative grant. State Highway
Commission v. Crossen-Nissen Company (1965), 145 Mont. 251,
400 P.2d 83. As with all statutes, when we construe those
granting the power of condemnation, the intention of the
legislature is to be pursued, if possible. Section 1-2-102,
MCA.
Public uses for which the power of eminent domain is
granted under Montana law are enumerated in § 70-30-102, MCA.
So far as pertinent to this case, it provides:
[T]he right of eminent domain may be exercised in
behalf of the following public uses:
(5) roads, tunnels, ditches, flumes, pipes, and
dumping places for working mines, mills, and
smelters for the reduction of ores; ... also an
occupancy in common by the owners or the possessors
of different mines of any place with a flow,
deposit or conduct of tailings or refuse matter
from their several mines, mills or smelters for
reduction of ores ...
(15) to mine and extract ores, metals, or minerals
owned by the plaintiff located beneath or upon the
surface of property where the title to said surface
vests in others ...
Under the plain language of subsection (15) above, the
proposal to mine its talc ore body by Montana Talc is
completely within the definition of a public use. Montana
Talc proposes "to mine and extract ores" from "minerals owned
by the plaintiff located beneath or upon the surface of
property where the title of said surface vests in others."
Cyprus is the surface owner of Section 9. Montana Talc is
the mineral owner of the talc ore body under Section 9.
There is a clear legislative enumeration in subsection (15)
under the facts here, that Montana Talc's proposed mine is a
public use. For the purpose of mining that ore body, Montana
Talc therefore has the power of eminent domain.
Cyprus argues that the surface to be condemned must be
directly over the ore body, and, apparently, that the right
of surface condemnation cannot go beyond the surface
ownership directly overlying the ore body. Cyprus strongly
argues on appeal that in order to uphold Montana Talc's
position, there must be a resort to speculation and inference
to find in the statutes the power of eminent domain for
Montana Talc. Yet, the opposite here is true: it would be
speculation and inference for this Court to insert "surface
ownership directly overlying the ore body" in subsection (15)
or "up to but not exceeding, the surface ownership overlying
the ore body." We may not, in ascertaining the meaning of
statutes "insert what has been omitted or omit what has been
1
inserted." Section 1-2-101, MCA.
Further, Cyprus' argument that only the surface
ownership overlying the ore body can he condemned is refuted
by 5 70-30-103, MCA. Once a public use is determined under S
70-30-102, MCA, the private property which may be taken
therefor includes "all real property belonging - any to
person. " Section 70-30-103 (a), MCA. The right of
condemnation, once a public use is determined, cannot be
delimited by section lines, fences or different ownerships.
All real property belonging to any person can be taken t-o
satisfy the public use.
Cyprus has also argued in brief that the nature of the
estate that Montana Talc seeks to condemn is unclear, that is
1 Cyprus argues in brief that it could take away Montana
Talc's power of condemnation by simply deeding to
Montana Talc the surface that overlies the ore body.
(However that may be, we do not accept the argument.)
whether it seeks from Cyprus a fee simple or something less.
That, however, is no obstacle. Section 70-30-104, MCA,
provides that the estates subject to be taken for public use
include "such estate or rights as may be necessary up to and
including a fee simple when taken for ... the mining and
extracting of ores, metals, or minerals when the same are
owned. by the plaintiff but located beneath or upon the
surface of property where the title to said surface vests in
others . .."
We find in subsection (15) above, and related statutes
the intention of the Montana legislature to encourage the
development of the mining industry. Understandably so,
because the mineral wealth of this Treasure State, so named
for its huge store of minerals taken and yet to be taken, is
a prime springhead of past and future economic increase for
Montanans. In keeping with this outlook, the legislature has
given to mining concerns the awesome power to condemn private
property for public use in return for just compensation where
the ownership of the minerals and of the surface do not
coincide. So it is that in addition to the power of
condemnation for the mine itself under subsection (15), there
is further power for the construction of roads, tunnels,
ditches and other appurtenances necessary to the mining
effort in subsection (5). Expansion, and not restriction,
appears to be the legislative watchword. This approach is
historic as witness the statement of this Court in Butte
Anaconda and Pacific Railway Company v. Montana Union Railway
Company (1895), 16 Mont. 504, 536-37, 41 P. 232, 243:
Lt is well to bear in mind, in the application of
the principles underlying the law of eminent
Under the facts of this case, Montana Talc's proposed
mine is clearly a public use.
- 8 -
domain, that the state has an inherent political
right, pertaining to sovereignty and founded on
what has been expressed to be a "common necessity
and interest," to appropriate the property of
individuals to the great necessities of the whole
community where suitable provision is made for
compensation.. .. The public welfare is therefore
the particular base upon which must be laid the
correct application of the doctrine itself. The
right of eminent domain may be of the greatest
value to the respondent, or to any other
corporation which may exercise its privileges, but
that is an incident which must b e subordinated by
the courts to the question of public use, and to
the consideration of the benefits to accrue to the
public by the construction of the contemplated
project . There is, however, a rule of
construction, sustained by the great weight of
well-considered authority, to the effect that this
power to take the property of private citizens or
other corporations for public use must be exercised
and can be exercised only so far as the authority
extends, either in terms expressed by the law
itself, or by implication clear and satisfactory.
(Citing authority.)
No Montana judicial decision that we are aware of
declares that the public uses described in § 70-30-102, MCA,
nust be strictly construed. In State ex rel. McLeod v.
District Court (1923), 67 Mont. 164, 215 P. 240, we held that
the power of a city to condemn land for a public highway
outside of its city limits must have express authorization or
be necessarily implied in the statutes. We have, however,
held that vigorous compliance with procedures required for
eminent domain is commanded. Helena v. Rogan (19021, 26
Mont. 452, 68 P. 798 (failure to describe property to be
condemned); Glass v. Basin Mng. and Concentrating Co. (18991,
22 Mont. 151, 55 P. 1047 (no pre-action attempt at
negotiation). If strict construction of public uses for
which eminent domain may be had were required by the common
law, where the law is declared by statute, common law may be
applied only if not in conflict with the statutes. Section
1-1-108, MCA. By law the statutes establish the law of this
state respecting the subjects to which they relate and their
provisions and all proceedings under them are to be liberally
construed with a view to effect their objects and to promote
justice. Section 1-2-103, MCA. Statutes may not be
interpreted to defeat their object or purpose, and the object
sought to be achieved by the legislature is of prime
consideration in interpreting them. Dover Ranch v.
Yellowstone County (1980), 187 Mont. 276, 609 P.2d 711. No
interpretation is required when the plain meaning can be
derived from the words of the statute. Tongue River Electric
Co-op, Inc. v. Montana Power Co. (1981), 195 Mont. 511, 636
P.2d 862.
The authority for condemnation in this case is clearly
expressed in subsection 15 of section 70-30-102, MCA.
Montana Talc has argued before the District Court and
now here that the construction of an open-pit for mining
purposes is really the establishment of a road for access
from the surface to the ore body. The purpose of the
"backslope," Montana Talc contends, is simply to accomodate
the necessary roads. Accordingly, Montana Talc contends that
a further enumeration of public use is found in subdivision
...
(5) of fj 70-30-102, MCA, which provides for "roads for
working mines . . .." The District Court rejected this
contention, saying that the roads for which condemnation is
authorized under subsection (5) can only be those commonly
referred to as surface roads, not "subsurface" roads located
at elevations as much as 250 feet below the existing land
surface.
Had we not already determined that the mining and
extraction of ores owned by the plaintiff located beneath or
upon the surface of property where the title of the surface
is vested in others is an enumerated public use under
subsection (15), it had then been necessary for us to
determine whether under subsection (5) the roads on an
open-pit backslope are the roads contemplated for working
mines as a public use. There is no need for us to now
consider this contention in view of our determinati.on under
subsection (15). The effect of our Opinion here is to regard
the whole of the open-pit operation, including its
backsloping, as a mine. It should be remembered, however,
that subsection (5) in its exact present language has been a
part of the statutes of this state from the beginning of our
statehood, and was, until 1961, the only provision of the
eminent domain statutes pertaining to the mining industry.
Yet, the courts regarded subsection (51 as granting a broad
power to the mining industry, broad enough to prompt the late
Chief Justice Brantly to comment in Kip v. Davis-Daly Copper
Company (1910), 41 Mont. at 518-19, 110 P.2d at 241:
Hence, from the beginning, it has been the policy
of the state, indicated by its constitutional and
statute law, as interpreted by this Court, to
foster and encourage the development of the state's
mineral resources in every reasonable way. It has
favored the industry of mining in the matter of
taxation of mining property (citing authority); and
has included among the public uses for which
private property may be taken by the exercise of
the right of eminent domain, roads, tunnels,
ditches, flumes, pipes and dumping places for
working mines, mills, or smelters for the reduction
of ores ...
In 1961, the legislature broadened the eminent domain
authority given to the mining industry by adding to the
eminent domain statutes what is now the first sentence of
subsection (15) .(Ch. 216, Laws of Montana (1961). ) It is
that broadened power that benefits Montana Talc today. 2
- -is the Effect - - - Case of the Landowner Notification
What - in this - -
Act?
In 1961, the legislature adopted the Landowner
Notification Act. Sections 82-2-301 through -306, inclusive,
MCA .
As applied to this case, the Landowner Notification Act
(LONA) requires prospective open-pit mine operators who do
not own the surface of the land in fee not to disturb in any
manner the surface until the owner of the surface is notified
in writing, accompanied by maps and plans of work and
operations. Section 82-2-303 (1), MCA. Before the
commencement of any open-pit mining operation, the mine
operator must first obtain from the surface owner of private
lands specific written approval of the proposed work or
operations. Section 82-2-303 (2) .
Cyprus contended before the District Court and now here
that because it will never give Montana Talc written approval
for any surface disturbance on the subject property, Montana
Talc's condemnation efforts must fail as a matter of law.
The District Court held that it must follow the plain
language of $ 82-2-303(2) even if it was in conflict with 5
70-30-102, MCA; that because Montana Talc is not seeking a
fee ownership of the surface of the subject property in the
condemnation proceeding, but rather a right to jointly use
the subject property with Cyprus, its ownership would not
rise to the fee ownership required by subsection (2) or the
2 The legislature has, however, restricted the strip
mining or open-pit mining of coal. Section
70-30-102(15), MCA; 5 70-30-106, MCA.
surface ownership required by subsection (3) of S 82-2-303;
and, that the only ownership which could exempt Montana Talc
from the operation of LONA was the condemnation of a fee
ownership in the subject property which Montana Talc does not
seek.
Montana Talc contends that where two statutory
provisions are in conflict, such as LONA and the eminent
domain statute in this case, LONA, which provides for a
consent from the surface landowner cannot impliedly repeal
the eminent domain statutes which are directed to a
non-consenting landowner.
Montana Talc relies on Wyomo Fuels, Inc. v. Edwards
.
(Wyo 1986), 723 P.2d 1230. Wyomo, however, was
distinguished by the District Court because of different
statutes and the nature of the interest there being sought, a
right of way across the defendant's property. We agree that
Wyomo is not quite on point for this case.
The District Court did indicate in a memorandum on this
case that it thought LONA was unconstitutional but left that
for this Supreme Court to decide. Montana Talc points to our
decision in Western Energy v. Genie Land Company and Montana
Department of State Lands (Mont. 1987), 737 P.2d 478, 44
St.Rep. 904, where this Court held that 5 82-4-224, MCA, a
similar statute requiring the consent of the surface owner
for strip mining operations to commence, was
unconstitutional. Section 82-4-224, MCA, applied only to the
mining of coal and uranium. Section 82-4-203(20), MCA.
F e hesitate to pass on the constituti.onality of LONA
l
where the District Court has not specifically ruled thereon.
Instead we determine that there is a good force of reasoning
why the provisions of LONA in this case must give way to the
condemnation statutes. The reasons stem from the source of
each act, and the purpose of enacting each act. LONA is
obviously calculated to require notice to the surface
landowner of proposed strip or open-pit mining operations
which would disturb the surface of his land. One of the
purposes of the notice is so that the landowner may evaluate
the extent of disturbance contemplated and the sufficiency of
the restoration and rehabilitation measures planned. Section
82-2-303 (1), MCA. The object of LONA is therefore not.
difficult to descry. Under LONA, the surface landowner is
entitled to notice and full revelation. The surface
landowner may withhold his consent to the strip mine
operation unless or until the strip mine operator becomes the
owner in fee simple of the subject property. The legislation
is aimed at the protection of private persons.
Eminent domain, however, derives from the power of
sovereignty. Eminent domain is the right of the state to
take private property for public use. Section 70-30-101,
MCA. It is a power constitutionally grounded. Art. 11, §
29, 1972 Mont. Const. When a private person or a corporation
exercises eminent domain for the purpose of taking private
property for public use, that person or corporation does so
through the power of the state for the perceived common good
of the public as a whole. The due process rights of the
party whose property is taken for public use are protected by
the statutes providing the procedures for eminent domain and
by the constitutional provision for just compensation.
It is inconceivable therefore that the legislature
intended the provisions of LONA, enacted for the benefit of
private persons, to overcome and supersede the provisions of
the eminent domain statutes, enacted for the preservation and
protection of the public good. Moreover, we do not favor the
repeal of statutes by implication. State v. Gafford (19771,
172 Mont. 380, 388, 563 P.2d 1129, 1134.
We therefore hold in this case that the provisions of
LONA do not affect adversely the right of Montana Talc to
utilize eminent domain against a nonconsenting landowner in
pursuance of its prospective mining operation.
The fact that 5 70-30-104, MCA, permits persons seeking
eminent domain to take such estate or rights as may be
necessary up to and including a fee simple overcomes the
District Court's apprehension respecting the nature of the
interest sought by Montana Talc in this case.
- - Proposed Public Use b~ Montana Talc More Necessary
Is the
--- of Cyprus?
than that
Section 70-30-111(3), MCA, provides that if the property
proposed to be taken is already appropriated to some public
use, the plaintiff must show by a preponderance of the
evidence that the public use to which the property is to be
applied is a more necessary public use.
Cyprus has obtained an operating mining permit on
Section 4, which encompasses all of the subject property.
The District Court held that as a matter of law, since an
operating permit had been issued to Cyprus, Cyprus held the
subject property as already conm~itted to a public use, that
is, mining. The District Court determined that Montana Talc
desired to put the subject property to the same public use to
which it had alrea-dy been committed by Cyprus and that
Montana Talc could not, as a matter of law, characterize its
proposal as a "more necessary public use." Therefore, the
District Court held that Montana Talc could not satisfy the
provisions of $ 70-30-111 (3), MCA.
Without further findings, the issue cannot be easily
decided. In Butte Anaconda and Pacific Railway Company, the
plaintiff BA & P sought by eminent domain the right to
utilize part of the right of way of the Montana Union Railway
Company. The objection was made that since Montana Union
Railway Company had already put the property to public use,
as a railroad, a like use by BA & P could not be considered
"more necessary." This Court disagreed for cogent reasons:
Now, however, having advanced to this point of the
case, we are met with this argument by the
appellant's counsel, namely, that this right of way
was already appropriated, and that there was no
delegation of power to any corporation under the
eminent domain laws of the state to take property
already appropriated to a public use unless, as
provided by (citing a statute) "the public use to
which it is to be applied is a more necessary
public use." We have already concluded that this
land was necessary to respondent's use, and the
question therefore is, is respondent precluded from
condemning these necessary lands because they have
already been condemned for public use by the
appellants? If the question were limited merely to
this single inquiry (unless some other statute
authorized a taking), doubtless, under rules of
construction, we should hold that the respondent
could not invade the right of way of the
appellants. But 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 by the
Montana Union Railway...
We have used the word "necessary" advisedly
throughout this opinion, although when we say that
the route chosen by the Butte, Anaconda & Pacific
requires the taking of the lands in question as
necessary for public use, we do not mean that there
is an absolute necessity of a particular location
they seek. But, under the statute, such an
absolute necessity is not a prerequisite to the
exercise of the law of eminent domain. (Emphasis
in original.)
It was never contemplated by the constitution that
competition between railroads should not be
sanctioned. On the contrary, our construction of
the law is that it is the policy of this state,
voiced in its constitution and statutes, to build
up competing roads, rather than to deter them. If
this were not so, why did the legislature expressly
include the right to take lands already
appropriated by one corporation and devote them to
public use where the latter use was a more
beneficial use than the former? The mere fact that
the easement is held by a corporation, and that
another corporation takes it to subserve public
use, cannot affect the principle so long as a
second taking is for the greater public good
(citing authority). Nor can the claim of a
superior equity of respondent be urged as a sound
argument, based upon the fact that the appellants
already have appropriated the property for public
use. (Citing a case. )
We cannot agree that the statute which authorizes
lands to be appropriated for a more necessary
public use means a different public use in all
cases. If the legislature had intended that
construction to be put upon the statute, instead of
carefully restricting the right to a more necessary
public use, they could easily have said a different
public use.. ..
16 Mont. at 537, 538, 543, 546, 41 P.2d at 243, 244, 245,
247-48.
The property owned by Montana Union Railway was not
actually being used by Montana Union at the time that RA & P
sought eminent domain of the property for similar use. That
appears to be the case here with respect to Cyprus' use of
this specific property which Montana Talc seeks to condemn.
It is necessary, therefore, that this case be remanded for
the purpose of a determination by the District Court of a
consideration of all factors involving the public use of the
subject property by Cyprus, and as proposed by Montana Talc.
Included, but not limited to those factors, are the
reasonableness of the proposed use by Montana Talc, the
present and actual use by Cyprus and the reasonableness of
its proposed use, the possibility of joint operation to
safeguard the rights of each party, the public good to be
accommodated by the public uses so proposed and all other
factors which may reasonably lead to a determination whether
the proposed use by Montana Talc is within the contemplation
of 5 70-30-111, MCA, as interpreted by the courts.
In Cocanougher v. Zeigler (1941), 112 Mont. 76, 83-84,
112 P.2d 1058, 1061, we find an extensive discussion of the
provision in 5 70-30-111(3) for a "more necessary" public
use. 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,
Accordingly, the summary judgment entered by the
District Court is reversed and this cause is remanded to the
District Court for further proceedings in accordance with
this Opinion.
,
----- -
. - l
i
Justice
We Concur: /?
Justices
Justice R.C. McDonough dissents.
The order of the District Court granting the motion for
summarv judgment of the respondent should be affirmed.
A grant by a sovereign government of the power of
eminent domain to a private person to take another person's
property without the owner's consent should be given very
careful scrutiny.
Historically, statutes in derogation of the common law
and common or natural rights have been strictly construed.
However, in Montana by 9 1-2-103, MCA, statutes in derogation
of the common law are to be liberally construed.
Nevertheless, § 1-2-1-03, MCA, does not apply here because §
1-2-104, MCA, preserves the historical rule that statutes in
derogation of common or natural rights are to be strictly
construed. Section 1-2-104, MCA, reads as follows:
Preference to construction favoring natural
right. When a statute is equally susceptible of
two interpretations, one in favor of natural right
and the other against it, the former is to be
adopted.
See also 73 Am. Jur. 2d Statutes S 284 (1970). Private and
individual ownership of property is a natural and fundamental
right. Section 3 of Article I1 of the Montana Constitution,
1972, provides;
All persons are born free and have certain
inalienable rights. They include the right to a
clean and healthful environment and the rights of
pursuing life's basic necessities, enjoying and
defending their lives and liberties, acquiring,
possessing and protecting property, and seeking
their safety, health and happiness in all lawful
ways. In enjoying these rights, all persons
recognize corresponding responsibilities. (Emphasis
added. )
See also 82 C.J.S. Statutes S 393, page 93 (1953); 73 Am.
Jur. 2d Statutes S 285 (1970). Thus, the majority mistakenly
abrogates the law of strict construction in interpreting our
eminent domain statutes.
It has long been the law in Montana that statutes
granting the power of eminent domain must be strictly
construed. This Court in State v. Aitchison (1934), 96 Mont.
335, 30 P.2d 805, interpreting substantially the same statute
we interpret today, stated as follows:
This court in the case of State ex rel. McLeod
v. District Court, supra, quoted with approval from
Lewis on Eminent Domain (3d Ed.) 5 371, as follows:
'The authority to condemn must be expressly given
or necessarily implied. The exercise of the power
being against common right, it cannot be implied or
inferred from vague or doubtful language, but must
be given in express terms or by necessary
implication. When the right to exercise the power
can only be made out by argument and inference, it
does not exist.' All of our decisions have been in
accord with the foregoing quotation. State ex rel.
McMaster v. District Court, 80 Mont. 228, 260 P.
134; Helena Power Transmission Co. v. Spratt, 35
Mont. 108, 88 P. 773, 8 L. R. A. (N. S.) 567, 10
Ann. Cas. 1055.
Aitchison, 30 P.2d at 807.
Again in State ex rel. McMasters v . District Court
(1927), 80 Mont. 228, 231, 260 P. 134, 135, this Court
stated:
The right to take private property from its
owner against his will can only be invoked pursuant
to law, and there must always be a rigorous
compliance with its provisions when this right is
sought to be exercised (Glass v. Basin Mining and
Concentrating Co., 22 Mont. 151, 55 P. 1045; City
of Helena v. Rogan, 26 Mont. 452, 68 P. 798), and
authority for the exercise of such right must be
clearly expressed in the law before it will be
allowed (State ex re1 McLeod v. District Court,
supra; 1 Elliot on Roads and Streets, 4th ed., S
218, p. 263.)
And in 3 Sutherland Statutory Construction S 64.06 (4th ed.
1 9 8 6 ) , it is stated:
The power to condemn property for public use
upon just compensation is an inherent attribute of
sovereignty. Grants of the power of eminent domain
must be found expressly or by necessary implication
in legislation, and the policy has become well
established that such grants are to be strictly
interpreted against the condemning party and in
favor of the owners of property sought to be
condemned.
Simply put, words granting power to take another man's
property without his consent must be given their plain
meaning, and be strictly construed.
The applicable statute is S 70-30-102, MCA, and the
pertinent parts are as follows:
Subject to the provisions of this chapter, the
right of eminent domain may be exercised in behalf
of the following public uses:
(5) roads, tunnels, ditches, flumes, pipes,
and dumping places for working mines, mills or
smelters for the reduction of ores.
(15) to mine and extract ores, metals, or
minerals owned by the plaintiff located beneath or
upon the surface of property where the title to
said surface vests in others.
In this case, appellant attempts to condemn for an open pit
mine and the backsloping thereof. Appellant stated in answer
to an interrogatory that the use to which they will put the
subject property is
required in order to remove overburden from the
Section 9 ore deposit; such removal must be made to
permit side slopes at acceptable and safe angles.
Roads are necessary on the [Subject Property] in
order to have access to and remove overburden, and
to remove ore. Such roads or ramps will continue
to be necessary for access to the mine and the ore.
An additional 100 foot boundary is necessary around
the edge of the pit in order to monitor stability,
provide survey control, provide a safety buffer,
and to permit the diversion away from the open pit
as tributary water.
It is clear that the right to condemn for an open pit
mine and backsloping is not covered by the above subsection
15) under the rule of an express grant and those necessarily
implied therefrom. One cannot say because the roads for a
mine are a public use that this ancillary use to the main
destruction of a surface by an open pit mine permits as a
public use the open pit mine and the backslopes thereof.
This is like the tail wagging the dog. Roads are part of the
backslope but the backslope is not part of the road in this
instance.
As to subsection (15), it plainly limits the right to
condemn the surface of property to that particular surface
beneath or upon which the proposed condemnor owns the
minerals. Under subsection (15), the right of eminent domain
may be exercised as follows: (1) to mine and extract ores,
metals, or minerals owned by the plaintiff; (2) which ores,
metals, or minerals are located beneath or upon the surface
of property; ( 3 ) which title to said surface (i.e. overlying
the ores, metals or minerals owned by the plaintiff) vests in
others. The statute plainly requires the existence of these
three conditions. The majority opinion takes the word
beneath and runs with it in all directions but up. It says
in essence that instead of being limited to ores, metals or
minerals located beneath the surface of the property where
the title to such surface is owned by others; that "beneath"
means if the elevation of the ore body owned by the condemnor
is lower or closer to the center of the earth than the
surface owned by others, then the surface owned by others can
be condemned. Under this interpretation, the ore body could
be a mile or more away in any horizontal direction. This
expansion of the meaning of the word "beneath" is not in the
plain language of the statute and is not strict construction.
Even if one assumes that the word beneath is capable of two
meanings, as applied here under the rules of strict
construction, the more restricted meaning is to be applied.
Section 1-2-104, MCA.
In essence what the majority has done is to expand the
meaning of subsection (15) to put a comma after the words
"upon the surface of property," and add the words "and
especially," making the balance of the sentence expansive
even though it is qualifying as originally written. This
interpretation also eliminates the need for the specific
purposes incident to working mines allowed by subsection 5 of
the applicable statute quoted above.
To further support its opinion the majority quotes
general statements of the intention of the legislature to
encourage the development of the mining industry and that
expansion and not restriction appears to be the legislative
watchword. Such statements have no meaning here because the
words fly in the face of the rules of statutory construction
of eminent domain. Statutes, constitutions, and opinions are
replete with general policy statements favoring a variety of
man's endeavors, for example agriculture, environment and
conservation, and these statements can also be used to
support opposing positions.
The effect of this opinion is to give the owner of
minerals lying at an elevation lower than lands owned by
others the right to condemn such others' land for open pit
mining (excepting the strip mining of coal), even though the
owner of the condemned property owns all the incidents of
ownership thereof including the minerals and even though he
is using that land for agricultural, commercial or
residential purposes. To say it another way, the majority
opinion gives the power to condemn private land for an open
pit mine, (or for any other mining purpose) to a private
corporation that owns no interest in the property sought to
be condemned. If the legislature wanted to do this it could
have said so in plain language. The responsibility of this
Court is not to insert what has been omitted or omit what
has been inserted. Section 1-2-101, MCA.