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, v. CYPRUS MINES CORPORATION, A DELAWARE CORP.; CYPRUS INDUSTRIAL MINERAL CORPORATION, A DELAWARE CORP.; AND UNKNOWN OTHERS, DEFENDANTS AND RESPONDENTS.
No. 87-186
Supreme Court of Montana
Submitted Oct. 27, 1987. Decided Dec. 28, 1987.
491 Mont. 491 | 748 P.2d 444
Poore, Roth & Robinson; Urban L. Roth, Thomas M. Welsch argued, Butte, for defendants and respondents.
Gough, Shanahan, Johnson & Waterman; William H. Coldiron, Montana Mining Association, Helena, for amicus curiae.
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 propоsed open-pit excavation was a more necessary public use under
On consideration, we determine that an open-pit excavation necessary to “backslope” 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 Company 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 sоuth 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, economi
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 refusеd 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.
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.
Is the Construction of a Backslope for an Open-Pit Mine an Authorized Public Use Under Montаna 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
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 must 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) tо 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.
Public uses for which the power of eminent domain is granted
“[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 rеduction 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 wherе the title to 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 infеrence 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 inserted.”
Further, Cyprus’ argument that only the surface ownership overlying the ore body can be condemned is refuted by
Cyprus has also argued in brief that the nature of the estate that Montana Talc seeks to condemn is unclear, that is whether it seeks from Cyprus a fee simple or something less. That, however, is no obstacle.
We find in Subsection (15) above, and related statutes the intention of the Montana legislature tо 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). Expansiоn, 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:
“It is well to bear in mind, in the application of the principles underlying the law of eminent 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 be 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
The authority for condemnation in this case is clearly expressed in Subsection 15 of
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 contеnds, is
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 determination 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 (5) 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 thе 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
In 1961, the legislature adopted the Landowner Notification Act.
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.
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
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 WYMO Fuels, Inc. v. Edwards (Wyo. 1986), 723 P.2d 1230. WYMO, 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 WYMO 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
We hesitate to pass on the constitutionality of LONA 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.
Eminent domain, however, derives from the power of sovereignty. Eminent domain is the right of the state to take private property for public use.
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 (1977), 172 Mont. 380, 388, 563 P.2d 1129, 1134.
We therefore hold in this case that the provisions of LONA do not
The fact that
Is the Proposed Public Use by Montana Talc More Necessary than that of Cyprus?
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 committed 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 already 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
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 roаds, 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 agrеe 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 BA&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 detеrmination 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
In Cocanougher v. Zeigler (1941), 112 Mont. 76, 83-84, 112 P.2d 1058, 1061, we find an extensive discussion of the provision in
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.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, HUNT and GULBRANDSON concur.
MR. JUSTICE McDONOUGH, dissenting:
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
“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 fоrmer is to be adopted.”
See also 73 Am. Jur. 2d Statutes Section 284 (1970). Private and individual ownership of property is a natural and fundamental right.
“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 Section 393, page 93 (1953); 73 Am. Jur. 2d Statutes Section 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 aрproval from Lewis on Eminent Domain (3d Ed.) Section 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.”
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 beforе it will be allowed (State ex rel McLeod v. District Court, supra; 1 Elliot on Roads and Streets, 4th ed., Section 218, p. 263.)”
And in 3 Sutherland Statutory Construction Section 64.06 (4th ed. 1986), 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
“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.
“. . .”
It is clear that the right to condemn for an open pit mine and backsloping is not covered by the above Subsection (5) 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 thereоf. 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 оf strict construc
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.