Montana Easements and Eminent Domain: Prescriptive Rights and Takings

In Montana, a prescriptive easement is a right to use another person's land acquired by open, exclusive, notorious, hostile, adverse, continuous and uninterrupted use for 5 years (Mont. Code Ann. § 23-2-322(1)), and the Montana Supreme Court requires those elements to be proved by clear and convincing evidence (Renner v. Nemitz, 2001). On the eminent domain side, the Montana Constitution bars taking or damaging private property for public use without just compensation to the full extent of the loss paid first (art. II, § 29), and a condemnor must prove that its project is one of the public uses listed in Mont. Code Ann. § 70-30-102, a list that allows urban renewal takings only of statutorily blighted property and never to increase government tax revenue.

This page covers both halves of Montana law: easements between private landowners first, then the power to take private property for public use. For other states, see our guide to easement laws by state.

Information last verified on October 19, 2026. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers Montana state law on private easements (the servitude provisions in Title 70, chapter 17 of the Montana Code Annotated, the prescriptive-easement definition in § 23-2-322, and Montana Supreme Court decisions) and on condemnation of private property (Mont. Const. art. II, § 29 and Title 70, chapters 30 and 31). It does not cover adverse possession of title (see Montana squatters rights and adverse possession), homeowners association covenants, zoning or regulatory takings, federal condemnation, or local ordinances.

Types of Easements Montana Recognizes

Montana's Civil Code lists the burdens, or servitudes, that can attach to one parcel for the benefit of another. When they attach to land they "are then called easements" (Mont. Code Ann. § 70-17-101). The list includes a right-of-way, the right of taking water, wood, minerals and other things, the right of conserving open space, the right of receiving sunlight or wind "for recognized nonfossil forms of energy generation," and the right of using land next to a firearms shooting range as a range safety zone.

A separate section lists servitudes that "may be granted and held though not attached to land," which are easements in gross. Rights-of-way, the right of taking water, wood or minerals, and the right of conserving open space appear on that list too (Mont. Code Ann. § 70-17-102).

The owner of any estate in the benefited (dominant) land, or its occupant, may bring an action to enforce an easement attached to that land (Mont. Code Ann. § 70-17-109).

Express Easements: Writing and Recording

An easement is an interest in real property. Montana law says such an interest, other than an estate at will or a term of one year or less, may not be created, granted, assigned or surrendered except by operation of law or "a conveyance or other instrument in writing, subscribed by the party" creating or granting it, or by that party's agent authorized in writing (Mont. Code Ann. § 70-20-101).

Recording matters to later buyers. A conveyance that is acknowledged and recorded as the law prescribes is, from the time it is filed with the county clerk, "constructive notice of the contents thereof to subsequent purchasers and mortgagees" (Mont. Code Ann. § 70-21-302(1)). Recorded easements show up in a title search; our guide to Montana property records explains how to look up recorded documents.

The scope of an easement follows its source. Except as other statutes provide, "the extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired" (Mont. Code Ann. § 70-17-106(1)). The same section limits transfers of a written easement:

"The holder of a written servitude may not use the servitude to grant additional rights and privileges to a successor or assignee unless the successor or assignee is specifically provided for in writing in the grant." (Mont. Code Ann. § 70-17-106(3))

Maintenance and expanding the use. The Montana Supreme Court has said the general rule is that the easement holder "has not only the right but the duty to keep it in repair," and the owner of the burdened land "is under no duty to maintain or repair it in the absence of an agreement" (Guthrie v. Hardy, 2001 MT 122, ¶ 59). Where the grant does not clearly define the easement's scope, the court has held that no use may be made of a right-of-way different from the use established when it was created "so as to burden the servient estate to a greater extent than was contemplated at the time the easement was created" (¶ 48). If the benefited land is later divided, the burden is apportioned among the parts "but not in such a way as to increase the burden upon the servient tenement" (Mont. Code Ann. § 70-17-107).

Implied Easements and Easements by Necessity

Montana courts recognize easements that arise without a written grant when a single owner divides land.

Easement implied from prior use. In Graham v. Mack (1984), the Montana Supreme Court, quoting a property treatise, said that for an easement by implication "there must have been a separation of title, and a use before the separation took place which continued so long and was so obvious or manifest as to show that it was meant to be permanent, and it must appear that the easement is necessary to the beneficial enjoyment of the land granted or retained."

Easement by necessity (landlocked land). In Frame v. Huber (2010), the Montana Supreme Court held that "the two essential elements of an easement by necessity are referred to as unity of ownership and strict necessity," and that the person claiming the easement must prove them by clear and convincing evidence. The court explained:

"The element of strict necessity requires that there be no practical access to a public road from the landlocked parcel except across lands that were formerly in common ownership. ... Strict necessity must exist at the time the tracts are severed from the original ownership and at the time the easement is exercised."

The court also noted that easements by necessity are "considered with extreme caution" because they take property rights from the burdened owner "through mere implication." A parcel that has some other practical route to a public road does not meet the strict necessity element as the court described it.

Opening a Private Road Through Condemnation

Montana also gives landlocked owners a statutory route. "Private roads leading from highways to residences or farms" are on the list of public uses for which eminent domain may be exercised (Mont. Code Ann. § 70-30-102(34)). The private-road section sets the conditions:

"Private roads may be opened in the manner prescribed by this chapter, but in every case the necessity of the road and the amount of all damage to be sustained by the opening of the road must be first determined by a jury, and the amount of damages, together with the expenses of the proceeding, must be paid by the person to be benefited." (Mont. Code Ann. § 70-30-107)

The road is opened through the condemnation procedure, but the damages and the costs of the proceeding fall on the person who gains the road rather than on the public.

Prescriptive Easements in Montana

Montana defines a prescriptive easement by statute:

"(1) A prescriptive easement is a right to use the property of another that is acquired by open, exclusive, notorious, hostile, adverse, continuous, and uninterrupted use for a period of 5 years." (Mont. Code Ann. § 23-2-322(1))

The 5-year period. In Renner v. Nemitz (2001), the Montana Supreme Court said "the statutory period is five years," citing Mont. Code Ann. § 70-19-401, the 5-year limit on actions to recover real property. The court added that "the period of prescriptive use by a claimant's predecessors in title inures to the benefit of the claimant," so use by earlier owners of the benefited land counts toward the 5 years.

Burden of proof and the presumption of adversity. The same decision held that the elements "must be proved at the district court level by clear and convincing evidence," and set out how the burden moves:

"If a claimant establishes open, notorious, continuous, uninterrupted and exclusive use of an easement by clear and convincing evidence, a presumption arises that the use is adverse to the servient estate and the burden shifts to the owner to show the use was permissive." (Renner v. Nemitz, 2001 MT 202)

Permission defeats the claim. In Warnack v. Coneen Family Trust (1994), the Montana Supreme Court repeated its earlier statement from Rathbun v. Robson (1983): "If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use." The Warnack court also quoted the rule that adverse use must be "exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to and acquiesced in by, the owner of the land" (quoting Keebler v. Harding, 1991).

Where prescription cannot run. Two statutes block prescriptive easements in specific settings:

• A prescriptive easement "cannot be acquired through" recreational use of surface waters (including the streambeds, the banks up to the ordinary high-water mark, and portages around barriers) or "the entering or crossing of private property to reach surface waters" (Mont. Code Ann. § 23-2-322(2)).
• If an existing road or road easement provides access to a lot in a platted residential subdivision, the owner of a lot in that subdivision "may not obtain a prescriptive easement for ingress or egress to the lot if the prescriptive easement crosses other lots or parcels in the platted residential subdivision" (Mont. Code Ann. § 70-17-113).

A prescriptive easement also survives a change in ownership to the state: "Acquisition by the state of land subject to a prescriptive easement does not terminate the prescriptive easement" (Mont. Code Ann. § 70-17-115).

Prescriptive easements compared with adverse possession. Adverse possession of title is a different claim. Montana's title statute requires 5 years of continuous occupation and claim plus payment of "all the taxes, state, county, or municipal" levied on the land during that period (Mont. Code Ann. § 70-19-411). Tax payment is not among the elements in the § 23-2-322(1) definition of a prescriptive easement. For title claims, see Montana squatters rights and adverse possession laws.

How a Landowner Can Prevent a Prescriptive Easement

Because permissive use cannot ripen into a prescriptive easement (Warnack, 1994), the clearest rule in the case law is that use the owner has permitted is not adverse.

Montana also lets a burdened owner mark the boundary of an existing easement: "The owner of a servient tenement may place private property signage along the servitude boundary to ensure those persons or entities using the servitude understand the servitude boundary" (Mont. Code Ann. § 70-17-114). The section authorizes signs; its text does not say that posting them ends or blocks a prescriptive claim. The servitude provisions in Title 70, chapter 17, part 1 and the possession statutes in chapter 19, part 4 contain no procedure for recording or serving a notice that stops prescription.

Irrigation Ditch and Canal Easements

Ditch easements carry their own statute. A person with a canal or ditch easement "has a secondary easement to enter, inspect, repair, and maintain a canal or ditch or to operate the appropriation works," and keeps that secondary easement "if the canal or ditch is converted into a pipeline and the pipeline is conspicuously marked" (Mont. Code Ann. § 70-17-112(1)). No one may "encroach on or otherwise impair" a canal or ditch easement used for irrigation or another lawful domestic or commercial purpose (§ 70-17-112(2)). In a legal action to enforce the section, "the prevailing party is entitled to costs and reasonable attorney fees" (§ 70-17-112(5)). The legislature amended this section in 2025 (Chapter 447, Laws of 2025, House Bill 355).

Conservation, Solar and Wind Easements

Conservation easements "may be granted either in perpetuity or for a term of years," and a term-of-years easement may not run less than 15 years (Mont. Code Ann. § 76-6-202). The servitude list in § 70-17-101 separately recognizes rights to conserve open space and to receive sunlight or wind for nonfossil energy generation.

A solar easement must be created in writing and is subject to the same conveyancing and recording requirements as other easements, and the instrument must state the vertical and horizontal angles, in degrees, over which it extends and any terms under which it is granted or will end (Mont. Code Ann. §§ 70-17-301, 70-17-302). A wind easement is granted "in the same manner and with the same effect as the conveyance of an interest in real property," runs with the land, and ends under the terms the easement sets (§ 70-17-403).

How an Easement Ends in Montana

Montana's statute lists four ways a servitude is extinguished:

"(a) by the vesting of the right to the servitude and the right to the servient tenement in the same person; (b) by the destruction of the servient tenement; (c) by the performance of any act upon either tenement by the owner of the servitude or with the owner's assent that is incompatible with its nature or exercise; or (d) when the servitude was acquired by enjoyment, by disuse of the servitude by the owner of the servitude for the period prescribed for acquiring title by enjoyment." (Mont. Code Ann. § 70-17-111(1))

The disuse rule in subsection (1)(d) applies only to an easement "acquired by enjoyment," such as a prescriptive easement. A conservation easement "may not be extinguished by taking fee title to the land to which the conservation easement is attached" (§ 70-17-111(2)).

Abandonment. In Renner v. Nemitz (2001), the Montana Supreme Court said the level of proof for abandonment is "basically clear and convincing," and that the party claiming abandonment "must prove the acts claimed to constitute abandonment are of a character so decisive and conclusive as to indicate clear intent to abandon the easement." The court added that "mere non-use is insufficient to prove abandonment"; abandonment "must be proven with words or acts that indicate clear intent to abandon."

Extinguishment by the burdened owner's adverse use. Renner also recognized that an easement can be extinguished by "reverse adverse possession," with the burdened owner carrying the same burden of proof required to establish a prescriptive easement. The court upheld a finding that three years of the burdened owner's adverse conduct fell short of the five-year statutory period.

Release. Because § 70-20-101 requires a signed writing to surrender an interest in real property (other than an estate at will or a term of one year or less), a voluntary release of an easement is done by a signed instrument, which can then be recorded. Our page on the Montana quitclaim deed covers the recording requirements for that kind of instrument.

Eminent Domain in Montana

Eminent domain is the power to take private property for public use. For a state-by-state comparison and the federal rules, see our guide to eminent domain laws by state.

Montana's constitution protects against both taking and damaging property, and it builds litigation costs into compensation:

"Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails." (Mont. Const. art. II, § 29)

Public Use Limits After Kelo

In Kelo v. City of New London (2005), the U.S. Supreme Court held that takings under a city's economic development plan satisfied the federal public-use requirement, and stated that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power."

Montana's limits run through a list. Before property can be taken, the condemnor "shall show by a preponderance of the evidence that the public interest requires the taking" based on four findings (Mont. Code Ann. § 70-30-111(1)):

• the use "is a public use pursuant to 70-30-102";
• "the taking is necessary to the public use";
• if the property is already in public use, the proposed use "is a more necessary public use"; and
• the condemnor made "an effort to obtain the property interest sought to be taken" by submitting "a final written offer prior to initiating condemnation proceedings and the final written offer was rejected."

The § 70-30-102 list limits urban renewal takings directly. Private property may be acquired for urban renewal through eminent domain "only if the property is determined to be a blighted area," as defined in specified parts of § 7-15-4206(2), "and may not be acquired for urban renewal through eminent domain if the purpose of the project is to increase government tax revenue" (Mont. Code Ann. § 70-30-102(12)).

In 2025 the legislature revised the definition of a blighted area used for municipal urban renewal and amended § 70-30-102 (Chapter 55, Laws of 2025, Senate Bill 1). The act took effect "on passage and approval" and "applies to a municipal resolution making a finding of the existence of a blighted area adopted after" its effective date.

A separate statute bars eminent domain for "trails, paths, or other ways for walking, hiking, bicycling, equestrian use, or other recreational uses whose primary purpose is a foot path, equestrian trail, bicycle path, or walkway" (Mont. Code Ann. § 70-30-112(1)).

Who Can Use Eminent Domain in Montana

The § 70-30-102 list is not limited to government projects. Private roads to residences or farms are on it (§ 70-30-102(34)). The list also includes railroads; canals, ditches and pipes supplying mines, mills and smelters or supplying farming neighborhoods with water and drainage; roads and tunnels for working mines; and telephone and electrical energy lines, except that local government entities, municipal utilities and competitive electricity suppliers may not use the chapter to take existing lines owned by a public utility or cooperative (§ 70-30-102(28), (29), (31), (35)). Strip or open-pit mining of coal is expressly not a public use (§ 70-30-102(42)). Common carrier pipelines have their own grant. Every entity covered by Montana's common carrier pipeline chapter "that has filed with the commission its acceptance of the provisions of this chapter has the power of eminent domain," may condemn land, rights-of-way and easements "necessary for the construction, maintenance, or authorization of the entity's common carrier pipeline," and must exercise that power "as provided in Title 70, chapter 30" (Mont. Code Ann. § 69-13-104). That means the general condemnation procedure, including the § 70-30-111 findings, applies to those pipelines.

How much can be taken. "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" (Mont. Code Ann. § 70-30-104(2)).

Montana Condemnation Procedure and Deadlines

Survey entry. The state or its agents in charge of a public use may enter land to make examinations, surveys and maps "after giving 30 days' written notice to the owners and persons in possession of the land" (Mont. Code Ann. § 70-30-110(1)). Before or when rejecting the final written offer, the owner may give the condemnor its claim of the measures it considers necessary to minimize damages to the property and to any remaining parcel (§ 70-30-110(2)).

The complaint. The condemnor's claim of damages in the complaint "must be the same amount as the final written offer that was rejected" (Mont. Code Ann. § 70-30-203(1)(f)). A copy of the Environmental Quality Council publication "Eminent Domain In Montana" must be attached to the complaint as an exhibit (§ 70-30-203(2)).

The preliminary condemnation order. The summons must notify the owner to file and serve an answer. Chapter 30 cases follow the Montana Rules of Civil Procedure except as the chapter provides (Mont. Code Ann. § 70-30-201), and the official summons form gives a defendant 21 days after service to serve an answer or a Rule 12 motion, warning that otherwise "judgment by default will be entered." Within 6 months after service of the summons, unless the court shortens or lengthens that time for good cause, the court, sitting without a jury, begins a trial on whether a preliminary condemnation order should issue (Mont. Code Ann. § 70-30-202). That trial decides whether the taking is allowed at all.

The owner's compensation claim (30 days). "Within 30 days of entry of a preliminary condemnation order, the condemnee shall file a statement of the condemnee's claim of just compensation" (Mont. Code Ann. § 70-30-207(1)). If the owner does not file the statement on time, the condemnor may obtain an order for possession anyway, and its payment into court is then due within 10 days after it receives the owner's statement (Mont. Code Ann. § 70-30-311(2)). If the condemnor does not accept the owner's claim within 20 days of service, the court appoints condemnation commissioners. Both parties may waive the commission hearing by written consent.

Commissioners. The commissioners' meeting may not be more than 10 days after the order appointing them (Mont. Code Ann. § 70-30-301(1)), and their report must be filed within 10 days after the hearing ends, or within additional time the judge allows "upon a clear showing of necessity" (§ 70-30-303(1)).

Appeal (30 days). Any party may appeal the commissioners' assessment to the district court, but "the appeal must be taken within 30 days after the service upon the parties of the notice of the filing of the award" (Mont. Code Ann. § 70-30-304(1)). The appeal is tried to a jury unless all parties waive one. An appellant who does not change the award to its own advantage "may not recover the costs of the appeal," and must pay the other side's costs on appeal (§ 70-30-304(3)).

Appeal to the Montana Supreme Court. A notice of appeal generally must be filed with the clerk of the Montana Supreme Court within 30 days from entry of the judgment, or within 60 days when the United States, the State of Montana, a political subdivision, or an officer or agency of one of them is a party; where notice of entry of judgment must be served under the civil rules, the time runs from that service (Mont. R. App. P. 4(5)(a)(i)).

Early possession. After the preliminary condemnation order, or a highway possession order under § 60-4-104(4) and (5), the court may let the condemnor take possession during the case on payment into court of the amount in the owner's statement of claim or the amount assessed by the commissioners or the jury (Mont. Code Ann. § 70-30-311(1)). If ownership is not disputed, the owner may ask the court for all or part of the deposit; receiving it does not give up the owner's right to appeal the assessment, but if the assessment is finally reduced on appeal, the owner must repay any amount received above the final assessment, with legal interest (§ 70-30-311(5)(a)). The court may not order more than 75% of the deposited money delivered to the owner "except upon posting of bond by the condemnee equal to the amount in excess of 75%" (§ 70-30-311(5)(b)).

State highway projects: a 10-day objection window. The Montana Department of Transportation has a faster route. Once it has acquired at least three-fourths of the parcels needed for a project selected by the commission, it deposits its estimated fair market value of the property 30 to 45 days after serving the summons and complaint and may move for an order to show cause why it should not be put in possession. If the owner does not file an objection within 10 days, the court "shall issue the preliminary condemnation order" and place the department in possession; if the owner objects, a hearing is held 20 to 30 days after the objection is filed (Mont. Code Ann. § 60-4-104(4), (5)). The department's order declaring a highway taking necessary also creates a disputable presumption that the project and the taking are necessary and properly located (§ 60-4-104(3)). Once the department files a right-of-way plan, nothing is paid for buildings or improvements placed on the covered land after the filing, and the plan's highway location lapses 1 year after filing if no action to condemn or acquire the property has begun (§ 60-4-108).

Payment and title. At the owner's option, payment may be made in annual installments, or, if other land is reasonably available and the condemnor consents, by exchange for land of equal or greater value (Mont. Code Ann. § 70-30-308(1)). If the award is not paid or deposited and cannot be collected by execution, the court "shall set aside and annul the entire proceedings and restore possession of the property to the condemnee if possession has been taken by the condemnor" (§ 70-30-308(2)). A copy of the court's order is filed with the county clerk and recorder, and on filing the property described in it vests in the condemnor for the purposes the order states (§ 70-30-309(2)).

How Just Compensation Is Calculated in Montana

The right to compensation accrues on the date the summons is served, and "the property's current fair market value as of that date is the measure of compensation for all property to be actually taken" (Mont. Code Ann. § 70-30-302(1)). Current fair market value is "the price that would be agreed to by a willing and informed seller and buyer," considering factors that include "the highest and best reasonably available use and its value for such use, provided current use may not be presumed to be the highest and best use" (Mont. Code Ann. § 70-30-313).

In a partial taking, the condemnor's claim must cover damages "to the property proposed to be taken as well as to any remaining parcel of property" (Mont. Code Ann. § 70-30-203(1)(f)). The commissioners determine both the loss in current fair market value to the remaining parcel and how much, if at all, the project will benefit it. Any benefit is deducted from the remainder damages, and what is left is the only amount allowed in addition to the value of the part taken; if the benefit equals those damages, compensation is limited to the value of the part taken (Mont. Code Ann. § 70-30-301(3)(c)).

Interest. If the condemnor is put in possession, the full amount finally awarded draws interest at 10% a year from service of the summons until the earlier of the end of the Montana Supreme Court appeal (or the expiration of the right to appeal) or the date the owner withdraws the full amount finally awarded from the court (Mont. Code Ann. § 70-30-302(2)). Withdrawing the full award therefore stops interest from running.

What chapter 30 does not add, and what chapter 31 does. Title 70, chapter 30, Montana's general eminent domain chapter, contains no extra percentage for a home, no separate award for business goodwill or lost profits, no stand-alone reimbursement of the owner's appraisal, and no set notice period before an owner must vacate a residence. Chapter 31 fills some of these gaps, but only on a program or project for which federal financial assistance will be available.

On those federally assisted projects, the acquiring agency (a term that includes any person with condemnation power under chapter 30) must have the property appraised before negotiating, give the owner a chance to accompany the appraiser, offer at least the approved appraisal with a written statement of how the amount was set, and offer to buy any uneconomic remnant left by a partial taking. An owner may not be required to give up possession before the agreed price is paid or at least the approved appraisal (or the award) is deposited in court, and the project must be scheduled so that, to the greatest extent practicable, no one lawfully occupying the property has to move from a dwelling, business or farm without at least 90 days' written notice (Mont. Code Ann. § 70-31-301). The agency also reimburses, to the extent it considers fair and reasonable, recording fees and transfer taxes, mortgage prepayment penalties and prorated property taxes (§ 70-31-302). The necessary expenses of litigation awarded when the owner prevails include expert witness fees (see below).

Attorney Fees and Litigation Expenses

Montana's fee rule is tied to the condemnor's last offer before suit:

"In the event of litigation and when the condemnee prevails either by the court not allowing condemnation or by the condemnee receiving an award in excess of the final written offer of the condemnor that was rejected pursuant to the facts necessary in 70-30-111(1)(d), the court shall award necessary expenses of litigation to the condemnee." (Mont. Code Ann. § 70-30-305(2))

The yardstick is the final written offer made before suit. A condemnor may make further offers after it, but those later offers "may not be used to determine whether the condemnee prevails," and the condemnor must tell the owner that they are not the final written offer (Mont. Code Ann. § 70-30-111(2)).

After an appeal from the commissioners' award is perfected, the condemnor must, within 30 days (or not more than 60 days after the parties waive appointment of commissioners), submit a written final offer of judgment that includes the owner's accrued necessary expenses. The owner may accept it by serving written notice at any time before 10 days before trial, and judgment is then entered; an offer not accepted is treated as withdrawn and is not admissible at trial except in a proceeding to determine costs (§ 70-30-305(1)).

"Necessary expenses of litigation" mean "reasonable and necessary attorney fees, expert witness fees, exhibit costs, and court costs," and attorney fees "must be computed on an hourly basis and may not be computed on the basis of any contingent fee contract" (Mont. Code Ann. § 70-30-306). The constitution separately makes necessary litigation expenses part of just compensation when the owner prevails (art. II, § 29).

Other fee provisions apply in narrower settings. On a project for which federal financial assistance is available, an owner is paid reasonable attorney, appraisal and engineering fees when the final judgment is that the property cannot be acquired by condemnation or the proceeding is abandoned (Mont. Code Ann. § 70-31-304), and an owner who wins an inverse condemnation case over such a project recovers those fees as part of the judgment (§ 70-31-303). An owner whose land is taken is not liable for damages caused by the project's construction, use or maintenance unless the owner's own negligence or intentional conduct is a cause, and the project owner or operator is liable for the owner's costs and attorney fees unless the owner is found liable (Mont. Code Ann. § 70-30-323). The ditch-easement statute awards costs and fees to the prevailing party (§ 70-17-112(5)).

Relocation Assistance and Getting Property Back

Relocation. Montana's relocation chapter "shall apply to all acquisitions of real property by an agency for a program or project for which federal financial assistance is available to pay all or any part of the cost" (Mont. Code Ann. § 70-31-103). Its stated purpose is uniform treatment of people displaced by federally assisted programs and compliance with the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (§ 70-31-101). Under that federal act, a state agency that receives federal financial assistance must give assurances that it will be guided, "to the greatest extent practicable under State law," by the federal land acquisition policies (42 U.S.C. § 4655). Montana's own relocation-payment part (Title 70, chapter 31, part 2) has been repealed. Instead, for a project that displaces a person from a home, business or farm and for which federal financial assistance may be available, entities that may condemn under Title 60, chapter 4 or Title 70, chapter 30 are authorized to provide relocation assistance and payments "to the full extent permitted by the federal relocation assistance law, 42 U.S.C. 4601, et seq." (§ 70-31-311).

Reversion and repurchase. When a non-fee interest acquired for a public purpose "by right of eminent domain, or otherwise" is abandoned, or its purpose ends, "the property reverts to the original owner or the original owner's successor in interest" (Mont. Code Ann. § 70-30-321(3)). When property is sold under the § 70-30-321 procedure, the owner from whom it was originally acquired "by eminent domain or otherwise," or that owner's successor, must be notified by certified mail and "has a 30-day option from the date of a sale" to buy the interest for an amount equal to the highest bid received (§ 70-30-322(1)).

Inverse Condemnation in Montana

When government action takes or damages property without a condemnation case, the owner may sue for compensation, a claim called inverse condemnation. In Knight v. City of Billings (1982), the Montana Supreme Court noted that under constitutions covering property "taken or damaged," it "is not necessary that there be any physical invasion of the individual's property for public use to entitle him to compensation." The court directed the district court to enter an order that homes along 24th Street West had been inversely condemned by the city's street improvements, with that order serving as a preliminary condemnation order under § 70-30-206(2) and damages then determined under the eminent domain statutes. It said "the measure of damages in an inverse condemnation case is the difference between the fair market value of the property before and after the condemnation," and that the right to the remedy "does not pass to subsequent purchasers." On a project for which federal financial assistance will be available, an owner who wins an inverse condemnation case is reimbursed reasonable attorney, appraisal and engineering fees (Mont. Code Ann. § 70-31-303).

Recent Changes

• 2021 (Chapters 304 and 453): added § 70-17-113 (no prescriptive easement across other lots of a platted residential subdivision when the lot already has road access) and § 70-17-114 (servient-owner signage), and amended § 70-17-106 to add subsection (3) on successors and assignees of written servitudes.
• 2023 (Chapters 329 and 238): added § 70-17-115 (state acquisition does not end a prescriptive easement) and § 70-30-112 (no condemnation for trails or trail-purpose parks), and amended § 70-30-102.
• 2025, Senate Bill 1 (Chapter 55): revised the definition of a blighted area used for municipal urban renewal and amended § 70-30-102. Effective April 3, 2025, on passage and approval; applies to municipal blight resolutions adopted after that date.
• 2025, House Bill 387 (Chapter 268): amended § 60-4-108, the rule that nothing is paid for improvements placed on land after the Department of Transportation files a right-of-way plan. Effective July 1, 2025.
• 2025, House Bill 717 (Chapter 513): amended § 82-4-340, under which the Department of Environmental Quality may condemn property to transfer a suspended mine permit and, when it requests immediate possession, the court shall grant possession before determining compensation. Effective May 8, 2025.
• 2025, House Bill 355 (Chapter 447): amended the canal and ditch easement statute, § 70-17-112, whose current text keeps the secondary maintenance easement when a ditch is converted to a conspicuously marked pipeline. Effective October 1, 2025.

Montana Easement and Eminent Domain Laws at a Glance

Related Montana Pages

• Easement laws by state
• Eminent domain laws by state
• Montana squatters rights and adverse possession laws
• Montana property records: how to find out who owns a property
• Montana quitclaim deed requirements

This article provides general legal information about Montana easement and eminent domain law, not legal advice. Easement and condemnation cases turn on their facts and on short statutory deadlines. For advice about a specific property, contact a lawyer licensed in Montana.

Last updated: October 19, 2026.

Frequently Asked Questions

How long does it take to get a prescriptive easement in Montana?

Five years of open, exclusive, notorious, hostile, adverse, continuous and uninterrupted use (Mont. Code Ann. § 23-2-322(1)). The claimant must prove each element by clear and convincing evidence, and use by earlier owners of the benefited land can count toward the period (Renner v. Nemitz, 2001).

Does permission stop a prescriptive easement in Montana?

Yes. The Montana Supreme Court has said that if the owner shows the use was permissive, no prescriptive easement can be acquired (Warnack v. Coneen Family Trust, 1994, quoting Rathbun v. Robson, 1983). Once the claimant proves the other use elements, adversity is presumed and the owner carries the burden of showing permission (Renner v. Nemitz, 2001).

Do I have to pay property taxes to get a prescriptive easement in Montana?

Tax payment is part of the statute for adverse possession of title (Mont. Code Ann. § 70-19-411). It is not among the elements in the prescriptive-easement definition in § 23-2-322(1).

What can I do if my land is landlocked in Montana?

Montana recognizes a common-law easement by necessity, which requires unity of ownership and strict necessity, both proved by clear and convincing evidence (Frame v. Huber, 2010). A landowner may also seek a private road under Mont. Code Ann. § 70-30-107; a jury decides necessity and damages first, and the person benefited pays the damages and the expenses of the proceeding.

Can a sign stop someone from getting an easement on my land in Montana?

Mont. Code Ann. § 70-17-114 lets the owner of burdened land post private property signs along the easement boundary, but its text does not say that signs block a prescriptive claim. The case-law rule is that permissive use cannot become a prescriptive easement (Warnack v. Coneen Family Trust, 1994).

Does an easement end if it is not used in Montana?

An easement acquired by enjoyment, such as a prescriptive easement, is extinguished by disuse for the period prescribed for acquiring title by enjoyment (Mont. Code Ann. § 70-17-111(1)(d)). For other easements, mere non-use is not enough: the Montana Supreme Court requires words or acts showing a clear intent to abandon (Renner v. Nemitz, 2001).

Who has to maintain an easement road in Montana?

The Montana Supreme Court has said the general rule is that the easement holder has the right and the duty to keep the easement in repair, and the owner of the burdened land has no duty to maintain or repair it unless they have agreed otherwise (Guthrie v. Hardy, 2001 MT 122).

Can Montana take my property for a private developer?

A Montana condemnor must prove that its use is one of the public uses listed in Mont. Code Ann. § 70-30-102 and that the taking is necessary, among the other findings in § 70-30-111(1). Urban renewal takings are allowed only for statutorily blighted property and never when the purpose is to increase government tax revenue (§ 70-30-102(12)).

Can a pipeline company use eminent domain in Montana?

A common carrier pipeline entity that has filed its acceptance of the pipeline chapter with the commission has the power of eminent domain for land and easements necessary for its common carrier pipeline, exercised under the general condemnation procedure in Title 70, chapter 30 (Mont. Code Ann. § 69-13-104).

How is just compensation calculated in Montana?

Compensation for property actually taken is its current fair market value on the date the summons is served (Mont. Code Ann. § 70-30-302(1)), and current use is not presumed to be the highest and best use (§ 70-30-313). Damages to any remaining parcel are part of the claim in a partial taking (§ 70-30-203(1)(f)), and any benefit the project gives the remainder is deducted from those remainder damages (§ 70-30-301(3)(c)).

Does the government pay attorney fees in a Montana eminent domain case?

The court shall award the owner's necessary expenses of litigation, computed hourly and not on a contingent fee, when the court does not allow the condemnation or the award exceeds the condemnor's rejected final written offer (Mont. Code Ann. §§ 70-30-305(2), 70-30-306). The Montana Constitution also includes necessary litigation expenses in just compensation when the owner prevails (art. II, § 29).

How long do I have to appeal a condemnation commissioners' award in Montana?

Thirty days after service of the notice that the award was filed (Mont. Code Ann. § 70-30-304(1)). The appeal is tried to a jury unless all parties waive one, and an appellant who does not improve the award pays the other side's costs on appeal.