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No. 13277
IN THE SUPREME COURT OF THE STATE OF MONTANA
1976
THE MONTANA POWER COMPANY, a Montana corporation, and PUGET SOUND POWER & LIGHT COMPANY,
Plaintiffs and Respondents,
-vs-
BOYD CHARTER and ANNE G. CHARTER, his wife; DREVS FARMING CORPORATION, a Montana corpora tion; PHYLLIS 0 ' CONNOR REES , BETTY o'CONNOR GREENE, JANE O'CONNOR LONG and GENEVIEVE O'CONNOR CARLISLE,
Defendants and Appellants.
Appeal from: District Court of the Thirteenth Judicial District, Honorable Robert H. Wilson, Judge presiding.
Counsel of Record:
For Appellants :
Graybill, Ostrem, Warner and Crotty, Great Falls, Montana Gregory T. Warner argued, Great Falls, Montana
For Respondents:
Crowley, Kilbourne, Haughey, Hanson and Gallagher, Billings, Montana Thomas N. Kelley argued, Billings, Montana
Submitted: October 20, 1976
DEC 2 8 1976
Decided : Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal by defendant landowners from orders of preliminary condemnation and possession granted to plaintiffs by the district court, Yellowstone County.
Each of the condemnation actions presented for appeal were initiated by plaintiffs Montana Power Company and Puget Sound Power &Light Company pursuant to Title 93, Chapter 99, Revised Codes of Montana, 1947. The purpose of the actions was to gain easements and right of way for construction of a 230-500 KV electric transmission line to serve the plaintiffs' coal-fired generating plants at Colstrip, Montana. Previous to filing the condemnation complaints in district court, plaintiffs obtained a certificate of "environmental compatibility and public need" from the State Board of Natural Resources and Conservation in accordance with the Montana Major Facility Siting Act, Title 70, Chapter 8, Revised Codes of Montana, 1947.
Upon motion, the district court ordered consolidation of the three condemnation actions with a "necessity hearing" scheduled for July 8, 1975. At pretrial conference on that date the court decided it was first necessary to determine whether, under the present Montana law, it was proper for a court to conduct a
1 Inecessity hearingff at all with respect to a utility facility of
the type involved. Accordingly, counsel for the parties orally stipulated to certain facts so this issue could be resolved.
On December 12, 1975, the district court entered its findings of fact and conclusions of law wherein it determined that the necessity for this particular power line, its location, and land to be taken and the area thereof were matters controlled by the
-2-

Montana Major Facility Siting Act and thus within the responsibility

of the State Board of Natural Resources ad Conservation. Holding

that the only issues properly before it were public use and just

compensation, the district court ruled the transmission line to
be a public use with just compensation to be determined at a future

time.

Therefore, the district court entered a preliminary condemna-
tion order on December 12, 1975. On the same day plaintiffs paid
into court the amount of compensation claimed by defendants in
their answers to the plaintiffs' condemnation complaints. The
district court then entered an order granting plaintiffs possession
and use of the lands in question.

Defendants on December 31, 1975, moved the district court
to stay the orders of preliminary condemnation and possession.
The motion was denied by the district court on January 20, 1976.

Defendants appeal from the district court's orders of
preliminary condemnation and possession.

On appeal defendants contend the orders of preliminary
condemnation and possession were improper because all issues of
preliminary condemnation for the power line were controlled by
the eminent domain statute, section 93-9901 et seq., R.C.M. 1947,
and thus were subject to hearing before the district court. However,
we believe the proper disposition of this appeal is controlled
by the course of events subsequent to the district court's denial
of defendants' motion for a stay.

First, by virtue of the district court's order of possession
granted in accordance with section 93-9920, R.C.M. 1947, plaintiffs
were entitled to "use and possess" the defendants' lands. We
note that this right has been exercised to the point where the
transmission towers and lines are now completed on those lands be-
longing to defendants.

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Second, noting the district court's denial of the defendants' motion for a stay of proceedings, we find nothing in the record to indicate any further effort by the defendants to preserve the status quo pending disposition of this appeal.
Since the very acts which defendants sought to enjoin are now accomplished fact, we hold the issue before this Court to be moot and thus not within the province of this Court. Adkins v. City of Livingston, 121Mont. 528, 194 P.2d 238.
The fact that no party raised the issue of mootness on appeal does not alter this necessary conclusion. Fox v. Hacker, 68 Mont. 413, 220 P. 749. Therefore, this
u
J stices.
Hon. Jack .L. ,,Green :, District
Judge, sitting for Justice Wesley
Castles.

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