                                            No. 03-262

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2004 MT 295


PARK COUNTY, MONTANA, a Political Subdivision
of the State of Montana, acting by and through the
PARADISE AND SHIELDS VALLEY TV DISTRICTS,

              Plaintiffs and Respondents,

         v.

HENRY ADAMS, and any unknown purchaser under
a contract for deed, mortgages, lienholders or other
claimants of Tract 26A of Certificate of Survey No. 1219,

              Defendants and Appellants.



APPEAL FROM:          District Court of the Sixth Judicial District,
                      In and for the County of Park, Cause No. DV 00-127
                      The Honorable Wm. Nels Swandal, Judge presiding.



COUNSEL OF RECORD:

              For Appellants:

                      Karl Knuchel, Attorney at Law, Livingston, Montana

              For Respondents:

                      Tara Depuy, Park County Attorney, Livingston, Montana



                                                         Submitted on Briefs: December 4, 2003

                                                                    Decided: October 26, 2004


Filed:


                      __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Henry Adams (“Adams”) appeals from a Final Order of Condemnation issued by the

Montana Sixth Judicial District Court, Park County, which condemned a piece of real

property described as Certificate of Survey No. 1804 (“Condemned Property”). The property

was condemned for the uses and purposes of operating and maintaining TV towers and

transmitters, the right of access thereto and therefrom, and the right to trim and cut trees

interfering with the transmission of the television service. The court’s Order gave a fee

simple interest in this property to the Plaintiffs (“TV Districts”) and their successors and

assigns. We affirm.

                                          ISSUE

¶2     Adams presents the following issue for review:

¶3     Did the District Court err in granting condemnation for Park County to provide

Paradise and Shields Valley TV Districts with a site for television antennae and transmitters

under § 70-30-101, et seq., MCA?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     The respondent TV Districts are duly created and organized television districts

pursuant to § 7-13-2501, et seq., MCA, with their principal place of business in Livingston,

Park County. The Paradise Valley TV District was created in 1969 and the Shields Valley

TV District was created in 1979. Television districts are authorized by the state legislature

and serve in the public interest, convenience, and necessity, pursuant to § 7-13-2502, MCA,

and are further authorized by the legislature to have the power to acquire lands, rights-of-


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way, and easements, necessary or convenient for their purposes, pursuant to § 7-13-2510(5),

MCA.

¶5     On January 5, 1979, John Lutz leased the Condemned Property--an approximately

ten- acre site--from Glenchora F. Myers. Lutz then sublet the site to the Paradise Valley TV

District on May 5, 1979. Myers eventually sold a large tract of her property, including the

Condemned Property, to Yellowstone Basin Property, which in turn, subdivided the property

into several tracts. The sale of Myers’ property was executed subject to the Paradise Valley

TV District lease.

¶6     In 1985, Adams, a resident of the State of California, purchased an approximately

28.8 acre piece of this property, known as Tract 26A of Certificate of Survey 1219 (“Tract

26A”). Tract 26A included the Condemned Property. He constructed a primitive cabin

which was situated so that the TV Districts’ antennae were within his view shed. When the

TV Districts’ lease expired in 1999, Adams and the TV Districts attempted to negotiate a

new agreement, but they were unable to agree on terms. The parties further attempted to

negotiate an agreement for the TV Districts to purchase either the Condemned Property or

the entirety of Tract 26A. When these negotiations were likewise unsuccessful, the TV

Districts filed suit for condemnation of the Condemned Property.

¶7     Following a bench trial, the District Court ordered the Condemned Property

condemned on the basis that the TV Districts had established by a preponderance of the

evidence that the taking was for public use, necessary, and in the public’s interest, and

further concluded that Adams had not established that the taking was excessive or arbitrary.

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Following a subsequent appraisal, the TV Districts paid Adams $25,000 for the Condemned

Property. From this condemnation, Adams appeals.

                                STANDARD OF REVIEW

¶8     We review a District Court’s findings of fact to determine whether they are clearly

erroneous. City of Bozeman v. Vaniman (1994), 264 Mont. 76, 80, 869 P.2d 790, 793

(citation omitted). Additionally, this Court reviews the district court’s conclusions of law

to determine whether its conclusions are correct. Vaniman, 264 Mont. at 80, 869 P.2d at 793

(citation omitted).

                                       DISCUSSION

¶9     Did the District Court err in granting condemnation for Park County to provide

Paradise and Shields Valley TV Districts with a site for television antennae and transmitters

under § 70-30-101, et seq., MCA?

¶10    Adams argues that the District Court misinterpreted the application of § 70-30-101,

et seq., MCA, and erred by condemning the Condemned Property for purposes of continued

occupation by the TV Districts for television antennae and transmittal sites. Adams further

argues that the TV Districts failed to establish all of the elements of the term “necessary” as

set forth in § 70-30-111, MCA, because the TV Districts failed to demonstrate that they had

considered alternate sites that may have impacted Adams to a lesser degree and may have

been more beneficial to the TV Districts and that, since satellite television is available for

a fee in the area which the towers currently serve with broadcast television, the towers



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cannot be in the public interest. Adams further claims that the Montana statutes do not

provide for television towers as a necessity for which property can be condemned.

¶11    The TV Districts counter that the placement of television antennae is a public use

authorized by the legislature, and thus eminent domain may be exercised. The TV Districts

further respond that they established by a preponderance of the evidence that the taking of

the Condemned Property is necessary, and Adams has failed to prove otherwise. The TV

Districts state that the taking of the Condemned Property is in the public interest, and that

the satellite television service available in the area does not carry local television stations

which make local weather conditions, local news, and local emergency broadcasts available

to the residents of the Paradise and Shields Valleys. Thus, they contend, satellite cannot be

said to serve the public interest as well as the current broadcast situation does.

¶12    The District Court found that, as of July 2000, the TV Districts served 1,117

households in Paradise Valley who are charged $10 per household per year; 532 households

in the Shields Valley who are charged $25 per household per year; and numerous residents

within the city-county zoning district surrounding Livingston who receive the broadcasts free

of charge. The District Court found that Meagher County and the local cable television

company receive free service from the TV Districts, and the TV Districts provide

transmission for the local stations for ABC, NBC, CBS, FOX, PBS, and National Public

Radio. The District Court also found that these local stations could be received only through

the TV Districts, as satellite television providers do not provide local television stations to

Park County.

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¶13    The District Court further found that the current location of the TV District towers

is necessary as there is a limited window of opportunity to receive transmissions from the

microwave tower in Rapelje and to transmit into Paradise Valley to the Chico repeater, and

that, it being necessary that the tower locations allow transmission into both the Shields and

Paradise Valleys, the towers must be located on an extreme ridge line. Noting that the TV

Districts attempted in good faith to negotiate a new lease for the Condemned Property, that

the expired lease had been for $100 per year, and that Adams offered to execute a new lease

for $10,000 per year on the condition that the TV Districts tear down three of the four towers

and relocate them elsewhere on the Condemned Property, the District Court found that the

TV Districts do not have the funds to tear down and relocate three towers and that it was not

clear that doing so would allow the TV Districts to continue to receive and transmit the

signals.

¶14    Finally, the District Court found that Adams offered to sell Tract 26A to the TV

Districts for $100,000; Tract 26A was appraised for $50,000; the TV Districts offered Adams

$65,000 for Tract 26A; and Adams rejected the offer and countered with a sales price of

$150,000. The District Court concluded that the taking of the Condemned Property was

necessary because it did not appear to be economically or technically feasible to move or

replace the towers, and the TV Districts had established by a preponderance of the evidence

that the taking is for public use, that the public’s interest requires the taking, and that the use

is necessary, pursuant to § 70-30-111, MCA, and consistent with our holding in Vaniman,

264 Mont. at 83, 869 P.2d at 794. The District Court further concluded that the acreage and

                                                6
right-of-way the TV Districts sought to condemn is the minimum interest necessary in order

for the TV Districts to serve the public interest, convenience, and necessity, and that Adams

failed to establish that the taking was excessive or arbitrary.

¶15    The purpose of a television district is to serve the public interest, convenience, and

necessity in the construction, maintenance, and operation of television translator stations and

any system necessary thereto for television program distribution. Section 7-13-2502, MCA.

Television districts organized under Title 7, Chapter 13, MCA, have the power to acquire

real and personal property necessary or convenient for its purposes. Section 7-13-2510(5),

MCA. Eminent domain is the right of the state to take private property for public use.

Section 70-30-101, MCA. The right of eminent domain may be exercised for public

buildings and grounds and all public uses authorized by the legislature of the state. Section

70-30-102(2), MCA.

¶16    In Montana, a “public use” is a use which confers some benefit or advantage to the

public. Such public use is not confined to actual use by the public, but is measured in terms

of the right of the public to use the proposed facilities for which condemnation is sought.

Montana Power Company v. Bokma (1969), 153 Mont. 390, 395, 457 P.2d 769, 772

(hereinafter “Bokma”). Television districts, including the TV Districts at issue in this case,

are statutorily mandated by § 7-13-2502, MCA, to serve the public interest in this manner.

¶17    “Necessary,” in the context of eminent domain, does not mean absolute or

indispensable, but reasonable, requisite and proper for the accomplishment of the intended

objective. State by Dept. of Highways v. Standley Brothers (1985), 215 Mont. 475, 479, 699

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P.2d 60, 62 (citing Butte, A. & P. Ry. Co. v. Montana U. Ry. Co. (1895), 16 Mont. 504, 541,

41 P. 232, 245). When alternate sites are available, the first consideration is public cost, and

amongst the locations with the least public cost, the final choice should be made based on

the least private injury. Standley Brothers, 215 Mont. at 481, 699 P.2d at 63.

¶18    The District Court concluded that the TV Districts in this case were duly created and

organized under the laws of Montana. As such, they have the right, pursuant to § 70-30-

102(2), MCA, to exercise eminent domain when necessary. The District Court concluded

that the exercise of eminent domain was necessary in this case. Adams now argues that the

TV Districts failed to prove “necessity” as required by § 70-30-111, MCA.

¶19    Section 70-30-111, MCA, reads in pertinent part:

       Before property can be taken, the condemnor shall show by a preponderance
       of the evidence that the public interest requires the taking based on the
       following findings:

       (1) the use to which the property is to be applied is a use authorized by law;

       (2) the taking is necessary to the use;

       ...

       (4) an effort to obtain the property interest sought to be taken was made by
       submission of a written offer and the offer was rejected.

This Court has interpreted this statute as requiring a district court to find that the proposed

taking is necessary to the public use under the circumstances of the individual case before

ordering condemnation. Lincoln/Lewis & Clark County Sewer District at Lincoln v. Bossing




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(1985), 215 Mont. 235, 239, 696 P.2d 989, 991 (hereinafter “Bossing”) (citing Bokma, 153

Mont. at 397, 457 P.2d at 774).

¶20    Adams argues that we must construe this statute to mean that alternate sites must have

been considered by the TV Districts before it can be determined that the taking of his

property was necessary under the law. However, such obligation is neither contained within

the language of § 70-30-111, MCA, nor does it square with our case law. A trial court has

the power to determine necessity and make findings on whether the public interest requires

the taking in an eminent domain proceeding. Bossing, 215 Mont. at 239, 696 P.2d at 991

(citation omitted). The condemnor’s choice of location is given great weight and will not be

overturned except on clear and convincing proof that the decision was excessive or arbitrary.

The burden of proof in such an action rests upon the shoulders of the one seeking to show

that the taking has been excessive or arbitrary. Bossing, 215 Mont. at 239, 696 P.2d at 991

(citation omitted). When a condemnor fails to consider the question of the least private

injury between alternates equal in terms of public good, its action is arbitrary and amounts

to an abuse of discretion. Bokma, 153 Mont. at 399-400, 457 P.2d at 775.

¶21    As Standley Brothers explains, the first item to be considered in determining necessity

is the least public cost. Standley Brothers, 215 Mont. at 481, 699 P.2d at 63. In the case at

hand, the television antennae and related improvements are already located on the

Condemned Property. Adams claims that the TV Districts did not amply investigate alternate

locations where they could relocate these improvements so as to lessen the private injury

incurred by Adams. At trial, the TV Districts presented ample evidence that it was unlikely

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that a similarly suitable location could be found where the TV Districts could transmit and

receive the broadcast signals as well as they could from their current location on the

Condemned Property. The TV Districts presented several witnesses who testified about the

advantages of the current location and the unlikelihood that moving the antennae would

allow the TV Districts to serve their customers in the same manner. Regardless, it was

undisputed that moving the antennae and concomitant improvements would result in a

substantial cost to the public. One witness for the TV Districts estimated the cost of

installing a single tower in a new location to be $74,000, not including the cost of acquiring

the property, building access roads or obtaining electrical service, if necessary, or the cost

of tearing down the old tower.

¶22    In reviewing the District Court’s findings, we do not ascertain them to be clearly

erroneous. As contemplated by § 70-30-111, MCA, and our holding in Vaniman, 264 Mont.

at 83, 869 P.2d at 794, the TV Districts proved by a preponderance of the evidence that the

taking of the Condemned Property is for public use, the public’s interest requires the taking,

and the use is necessary. Thus, we conclude that the District Court did not err in granting

condemnation for Park County to provide Paradise and Shields Valley TV Districts with a

site for television antennae and transmitters under § 70-30-101, et seq., MCA.

                                      CONCLUSION

¶23    For the foregoing reasons, we affirm the District Court.



                                                         /S/ PATRICIA O. COTTER

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We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JIM REGNIER




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