City of Missoula v. Mountain Water Co.

I dissent. I would reverse the District Court and direct the District Court to issue a preliminary condemnation order.

I am of the opinion that the City is entitled to the conclusive presumption of necessity contained in Section 7-5-4106, MCA. My opinion is based upon the nature and attributes of the power of eminent domain and upon the statutory history.

The power of eminent domain is an inherent attribute of the state’s sovereignty. Butte, Anaconda & Pacific Ry. Company v. The Montana Union Ry. Company, 16 Mont. 504, 536, 41 St.Rep. 232 (1895). The Legislature alone has the ability to…