60-4-104. Exercise of right of eminent domain -- presumption. (1) Subject to subsections (4) and (5), whenever the department cannot acquire lands or other property or interests in the lands or property at a price or cost that it considers reasonable, it may direct the attorney general or any county attorney to procure the interests by proceedings to be instituted as provided in Title 70, chapter 30, against all nonaccepting landholders.
     (2) The department may not direct the attorney general or any county attorney to procure the interests until it adopts an order declaring that:
     (a) public interest and necessity require the construction or completion by the state of the highway or improvement for one of the purposes set forth in 60-4-103;
     (b) the interest described in the order and sought to be condemned is necessary for the highway or improvement;
     (c) the highway or improvement is planned and located in a manner that will be compatible with the greatest public good and the least private injury.
     (3) The order creates and establishes a disputable presumption:
     (a) of the public necessity of the proposed highway or improvement;
     (b) that the taking of the interest sought is necessary for the project;
     (c) that the proposed highway or improvement is planned or located in a manner that will be most compatible with the greatest public good and the least private injury.
     (4) (a) Once the department has acquired at least three-fourths of all the parcels needed to construct a project that has been selected by the commission, it may use the procedures outlined in subsection (5) and this subsection (4) to acquire the remaining parcels required for the project.
     (b) Not less than 30 days or more than 45 days after service of the summons and complaint provided for in 70-30-203, the department shall deposit into an account and in the manner provided for in 70-30-302 the estimated fair market value of the property that is to be acquired and that is described in the complaint. Once the funds are deposited, the department may request, by motion filed with the court, an order to show cause why the property should not be placed in the possession of the department as requested in the complaint.
     (5) (a) If the condemnee does not file an objection to the motion within 10 days, the court shall issue the preliminary condemnation order as provided in 70-30-206 and place the condemnor in possession of the property as provided in 70-30-311.
     (b) If the condemnee files an objection to the motion, the court shall schedule a hearing at which the condemnee shall appear and show cause why the property should not be placed in the possession of the department as requested in the complaint. The hearing must take place not less than 20 days or more than 30 days after the objection is filed. The court shall rule on the condemnor's motion as soon after the hearing as possible. However, the time between the hearing and the court's decision may not exceed 30 days.
     (c) The motion shall include a notice specifying that the order sought is a final order on the issue of possession of the property described in the complaint.

     History: En. Sec. 8-104, Ch. 197, L. 1965; amd. Sec. 127, Ch. 316, L. 1974; R.C.M. 1947, 32-3904; amd. Sec. 1, Ch. 330, L. 2003.