70-30-104. What estates and rights in land may be taken. (1) The following is a classification of the estates and rights in land subject to taking for public use:
     (a) subject to subsection (2), estates or rights that are necessary, up to and including a fee simple interest, when taken for:
     (i) public buildings or grounds;
     (ii) permanent buildings;
     (iii) an outlet for a flow or a place for the deposit of debris or tailings of a mine;
     (iv) the mining and extracting of ores, metals, or minerals when the ores, metals, or minerals are owned by the condemnor but are located beneath or upon the surface of property for which the title to the surface vests in others; or
     (v) the underground storage of natural gas by a natural gas public utility as defined in 82-10-301. When the taking is for the underground storage of natural gas, all of the right, title, interest, and estate in the real property and in the subsand stratum, formation, or reservoir taken must be determinable and for all purposes terminates upon abandonment or upon cessation for the period of 1 year of the use for which the property was taken. Upon the abandonment or cessation, the ownership of the residue of natural gas remaining in the reservoir vests in the current owners of the surface property over the reservoir space.
     (b) the estate or rights in the surface property that are necessary for a reservoir or dam and for the permanent flooding that results from the reservoir or dam, up to the edge of the maximum pool of the reservoir;
     (c) an easement, leasehold, or other interest, for as long as the interest is necessary for the purpose described in the complaint, or fee simple interest when taken for any other use;
     (d) the right of entry upon and occupation of land and the right to take from the land any earth, gravel, stones, trees, and timber that may be necessary for some public use.
     (2) Subject to 60-4-102, an easement is presumed to be sufficient for a project for a public use unless the parties agree that a greater interest should be taken or the condemnor shows by a preponderance of the evidence that a greater interest is necessary.

     History: En. Sec. 581, p. 190, L. 1877; re-en. Sec. 581, 1st Div. Rev. Stat. 1879; re-en. Sec. 599, 1st Div. Comp. Stat. 1887; re-en. Sec. 2212, C. Civ. Proc. 1895; re-en. Sec. 7332, Rev. C. 1907; re-en. Sec. 9935, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 1239; re-en. Sec. 9935, R.C.M. 1935; amd. Sec. 1, Ch. 158, L. 1943; amd. Sec. 2, Ch. 245, L. 1953; amd. Sec. 7, Ch. 259, L. 1955; amd. Sec. 2, Ch. 216, L. 1961; R.C.M. 1947, 93-9903; amd. Sec. 1, Ch. 97, L. 1979; amd. Sec. 1, Ch. 622, L. 1983; amd. Sec. 2, Ch. 19, L. 2001; amd. Sec. 54, Ch. 125, L. 2001.