                                        No. 12157

           I N T E SUPREME COURT O THE STATE O M N A A
                H                 F           F OTN

                                             1972



THE STATE O MONTANA, ACTING BY AND
           F
THROUGH T E STATE HIGHWAY COMMISSION
         H
O THE STATE O MONTANA,
 F            F

                                P l a i n t i f f and Respondent,



JOHN PARINI e t a l . ,

                                Defendants and Appellants.



Appeal from:         D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
                     Honorable Frank E. B l a i r , Judge p r e s i d i n g .

Counsel of Record:

        For Appellants :

                 C o r e t t e , Smith and Dean, B u t t e , Montana.
                  R. D. C o r e t t e , Jr. argued, B u t t e , Montana.

        For Respondent:

                 Harry Alley and Frank Meglen argued, Helena, Montana.



                            Submitted :            March 14, 1972

                             Decided :      MAY 1 0 19?2
F i l e d :MAY   16P 1972
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

     This is an appeal by defendant property owners in a condemna-
tion action involving the acquisition of land for the construction
of an interstate highway in the Vicinity of Elk Park, north of
Butte, Montana.   Following a "necessity" hearing the district
court of the fifth judicial district, county of Jefferson, Hon.
Frank E. Blair presiding, entered a "Preliminary Order of Con-
demnation" condemning defendants' land to a public use and de-
claring such condemnation necessary for such public use,
     Plaintiff is the state of Montana, acting through the State
Highway Commission.   Plaintiff seeks to ,condemnand acquire a
54.4 acre strip of defendants' land located in two noncontiguous
parcels, designated parcel 11 and parcel 15.   This strip of land
is to be used for the construction of a four lane controlled
access interstate highway between Butte and Helena.
     Defendants own and operate a 634.5 acre dairy farm which
is divided into three noncontiguous parcels.   Parcel 15 is known
as the home place where all the buildings are located, including
the house and barn.   At the present time, parcel 15 is bisected
by the Burlington Northern railroad tracks and the existing
primary highway, U.S. Highway 91, both of which run in a north-
south direction. The buildings are located east of the highway
and tracks; on the west side the land is devoted to hay production
and pasture.   It is defendants' uncontested contention that in
the operation of their farm they are required to cross and re-
cross the existing highway and railroad tracks twice a day for
ten months of the year, either with their cows or with a manure
spreader in the winter time.   They further contend that access
from the home place to the west portion of parcel 15 is abso-
lutely necessary for the continued operation of their farm,
        Under the proposal approved by the district court, the
State Highway Commission would condemn a 29.7 acre strip of
land which would bisect parcel 15 in a north-south direction and
abut and parallel the existing highway.    All of the buildings
on parcel 15 would be destroyed or removed.    No access would be
provided from the east portion of parcel 15 across the interstate
to the west portion of parcel 15.    However, the State Highway
Commission does propose to construct frontage roads on both
the east and west sides of the interstate with an interchange
at Trask, one and one-half miles south of defendantsf farm.
        During the hearing and on appeal, the only issue raised
by the defendants is the failure of the State Highway Commission
to propose construction of a "tube" or stockpass under the inter-
state so as to allow them and their cattle access from the east
portion of parcel 15 to the west portion.    Defendants contend,
without contradiction, that it would be fruitless to drive their
cows from the west pasture to the.home place for milking via
the Trask interchange because milk cows cannot be driven any
real distance without a loss of milk.    Therefore, they contend,
a "tube" or stockpass under the proposed interstate highway is
necessary for the continued profitable operation of their dairy
farm.
     The State Highway Commission introduced as Exhibit "A"
an appraiser's report of the value of defendantsf farm.    This
report indicated the present market value of the farm is $114,000.
No evidence was offered by defendants to rebut or refute the
exhibit.    There was also testimony elicited from a district en-
gineer for the State Highway Commission to the effect that the
estimated cost of constructing a "tube" or stockpass would be
in the neighborhood of $200,000.    The engineer pointed out that
no study has been made as to the feasibility of putting in such
a "tube" or stockpass and that the $200,000 figure was merely an
estimate on his part.        However, he went on to give facts and
figures on elevation, the costs of fill and the distance of
hauls that make his estimate more than just speculation.
      The single issue presented for review is whether the district
court abused its discretion in ordering the condemnation of de-
fendants' land without providing for a "tube" or stockpass as
a means of access from the east portion of defendants' farm to
the west portion.
      It is undisputed that the State Highway Commission has the
authority to condemn private property to facilitate the construc-
tion of state and federal highway systems.          Sections 32-3902, 32-
3904(1),   93-9902, R.C.M.        1947. However, prior to instituting con-
demnation proceedings section 32-3904(2),         R.C.M.    1947, requires
the Commission to adopt a resolution declaring that public intere
and necessity requires such condemnation. Once the Commission
has adopted the resolution, section 32-3904(3),            R.C.M.   1947,
creates a disputable presumption:
     "a
      ()   Of the public necessity of the proposed highway or
     improvement.
      ( ) That the taking of the interest sought is necessary
     "b
     therefor.
     "c
      ()   That the proposed highway or improvement is planned
     or located in a manner which will be most compatible with
     the greatest public good and the least private injury."
     In their answer to the complaint, defendants prayed:
     "That the Court deny public necessity to Plaintiff
     until and unless Plaintiff provides access to the
     Defendants' lands lying west of the proposed interstate
     highway. I I
     It appears defendants would have the district court approve
the necessity of condemning their land conditioned upon the plain-
                             It
tiff providing access.        Necessity1'in a condemnation action is
an'independent element that must be determined on its own merits.
At the hearing there was no evidence offered by defendants to
refute the "disputable presumption" of section 32-3904(3),     R.C.M.
1947, that the condemnation of defendants' land was necessary
for the construction of the proposed interstate highway. There-
fore, the order of the district court must stand. That order
decreed :
     '*
      I * * the use to which the plaintiff seeks to apply
     the property of the defendants is a necessary public
     use authorized by law; and that the ublic interests
     require the taking of said property.R
         Defendants appear to concede that the condemnation of their
lands is necessary within the meaning of section 32-3904(3)(b),
R.C.M.     1947, but they would require plaintiff to construct an
underpass under the proposed interstate highway for their sole
use in the operation of their dairy farm.
         There is a failure of proof on the part of defendants as
to what their liquidated damages would be if such an underpass
were not constructed.      However, such failure of proof is not
critical to defendants' case at this stage of the proceedings
because they are still entitled to another day in court to
establish their damages under the provisions of section 93-9915,
R.C.M.     1947, (Appeal from assessment of commissioners).
         Defendants cite State Hwy. ~omm'nv. Lavoie, 155 Mont. 39,
466 P.2d 594, for the proposition that the state has a duty and
obligation to provide an underpass for a private property owner.
Such is not the case.      In Lavoie, an underpass was constructed
under the interstate, but not only did it benefit the defendant,
Lavoie, but also the public in general as that underpass connected
an existing county road and was the only proposed means of access
between the north and south sides of the interstate in the French-
town valley.
         For the foregoing reasons we affirm the decision of the
district court.



                                 /    /     ~ssociateJustice
/ /    Chief Justice




      Associate ~ G t i c e s .
