MCA 7-2-45/Annexation of Wholly Surrounded Land (1997)St. Rep. 936 (1989).
7-2-4409. Provision of services. In all cases of annexation under current Montana law, services
must be provided as specified in Title 7, chapter 2, part 47, except when mutually agreed upon by the
municipality and the real property owners of the area to be annexed.
History: En. Sec. 2, Ch. 642, L 1979; amd. Sec. 7, Ch. 66, L. 1995.
Compiler's Comments:
1995 Amendment: Chapter 66 near end substituted "real property owners" for "freeholders"; and
made minor changes in style. Amendment effective February 16, 1995.
7-2 21. When land conclusively presumed to be annexed. A tract or parcel of land that has
been shown on municipal maps or plats as being within municipal boundaries but is later found to have
been improperly or unofficially annexed is conclusively presumed to be annexed and may be so recorded
if municipal taxes have been paid on the tract or parcel without protest for a period of 7 years.
History: En. Sec. 1, Ch. 109, L 1991.
Compiler's Comments:
1981 Title: The title to Ch. 109, L. 1981 (HB 55), read: "An act prescribing conditions under which
land is presumed to be annexed and may be so recorded."
Codification Instruction: Section 2, Ch. 109, L. 1981, provided: "Section 1 is intended to be codified
as an integral part of Title 7, chapter 2, parts 42 through 47, and the provisions of Title 7, chapter 2, parts
42 through 47, apply to section 1."
Interim Study Committee Bill: Chapter 109, L. 1981 (f-iB 55), was introduced at the request of the
Study Committee on Annexation Laws. See committee report, Legislative Council, 1980.
Case Notes:
Former Law: Prior to the enactment of this section, the exclusive manner of annexation was through
statutory provisions and failure to substantially comply with such provisions defeated annexation. Gregory
v. Forsyth, 187 M 132, 609 P2d 248, 37 St. Rep. 277 (1980); Balock v. Melstone, 186 M 303, 607 P2d
545, 37 St. Rep. 288 (1980).
AnnexationPart 45
of WhollySurrounded Land
Part Case Notes:
Wholly Surrounded Land Annexation -- Constitutionality: Annexation of contiguous land and
annexation of wholly surrounded land do not violate Art. 111, sec. 14, 1889 Mont. Const. (similar to Art. II,
sec. 29, 1972 Mont. Const.), or amendment five of the United States Constitution, which provides that
private property may not be taken for public use without payment of just compensation, and do not violate
Art. 111, sec. 27, 1889 Mont. Const. (similar to Art. II, sec. 17, 1972 Mont. Const.), or amendments 5 and
14 of the United States Constitution, which provide that private property cannot be taken without due
process of law. Brodie v. Missoula, 155 M 185, 468 P2d 778 (1970), following Harrison v. Missoula, 146
M 420, 407 P2d 703 (1965).
Constitutionality -- Annexation Generally. Annexation, in the absence of a constitutional prohibition, is
a political matter exclusively for the Legislature to control, and unless specifically restrained by the
Montana Constitution, the Legislature can authorize annexation without the consent or even against the
wishes of the people living in the annexed corporation or territory. Harrison v. Missoula, 146 M 420, 407
P2d 703 (1965).
Evidence of Annexation Benefits to Property Owners: In action for injunctive relief against resolution
of intention of City Council to annex land, court properly excluded all evidence relating to benefits.
Penland v. Missoula, 132 M 591, 318 P2d 1089 (1957).
Remedy for illegal Inclusion: The remedy of injunction is available to one whose taxes would be
increased by an illegal inclusion of his property within the limits of a city. Sharkey v. Butte, 52 M 16, 155 P
266 (1916).
Law Review Articles:
Recent Developments in Montana Land Use Law, Goetz, 38 Mont. L. Rev. 97 (1977).
Annexation in Montana --A Time for Change, Burke, 35 Mont L. Rev. 71 (1974).
Collateral References:
What zoning regulations are applicable to territory annexed to a municipality. 41 ALR 2d 1463.
Proper remedy or procedure for attacking legality of proceedings annexing territory to municipal
corporation. 18 ALR 2d 1255.
Boundaries: capacity to attack the fixing or extension of municipal limits or boundary. 13 ALR 2d 1279.
Validity of municipal bond issue as against owners of property annexation of which to municipality
became effective after date of election at which issue was approved by voters. 10 ALR 2d 559.
Refusal of municipality to annex impoverished area as violative of federal law. 22 ALR Fed. 272.
7-2 01. Annexation of wholly surrounded land. A city may include as part of the city any platted
or unplatted tract or parcel of land that is wholly surrounded by the city upon passing a resolution of
intent, giving notice, and passing a resolution of annexation. Except as provided in 7-2-4502, the
provisions of 7-2-4312 through 7-2-4314 apply to these resolutions and the notice requirement.
History: En. Sec. 1, Ch. 30, L. 1905; re -en. sec. 3214, Rev. C. 1907; re-m Sec. 4978, R.C.M. 1921; amd. Sec. 1, Ch. 52, L.
1925; re -en. Sec. 4978, R.C.M. 1935; amd. Sec. 1, Ch. 239, L. 1957; amd. Sec. 1, Ch. 238, L. 1959; amd. Sec. 1, Ch. 217, L.
1961; amd. Sec. 1, Ch. 281, L. 1967; amd. Sec. 1, Ch. 510, L. 1977; R.C.M. 1947, 11-403(part); amd. Sec. 17, Ch. 250, L. 1979;
amd. Sec. 1, Ch. 200, L. 1983.
Compiler's Comments:
9983 Amendment: At beginning of section, after "city" deleted "of the first class".
9983 Title: The title to Ch. 200, L. 1983, read: "An act to allow cities of all classes to annex wholly
surrounded land under the provisions of Title 7, chapter 2, part 45, MCA; amending section 7-2-4501,
MCA."
Case Notes:
Annexation of City Street Upheld as Basis for Subsequent Annexation of Other Land. The Missoula
Rural Fire District and private property owners sued the city of Missoula to enjoin the annexation of their
property by the city. The District Court held that the city could use previously annexed land consisting of
all or parts of three city streets as a basis for subsequent annexation of parcels of land enclosed by those
city streets because those parcels were "wholly surrounded" by city land. The Supreme Court affirmed
the judgment of the District Court, holding that a street is an annexable "tract or parcel" of land, pursuant
to 7-2-4301, and that when the contiguity of those streets with other city land at city intersections was
considered with the public purpose of the annexations, the streets were valid annexations of contiguous
land, pursuant to 7-2-4301. The Supreme Court then held that since the parcels of land owned by the fire
district and the private property owners were then "wholly surrounded" by properly annexed city land, the
contested parcels of land were themselves properly annexed, pursuant to this section. Missoula Rural
Fire District v. Missoula, _M_, 950 P2d 758, 54 St. Rep. 1459 (1997).
No Certificate of Survey Required: Contention that 30-acre tract was improperly annexed to city due
to failure of City Council to survey unplatted land and file certificate of survey prior to annexation was
without merit since entire tract was surrounded by city and therefore, under this section, no certificate of
survey was necessary. Brodie v. Missoula, 155 M 185, 468 P2d 778 (1970).
Wholly Surrounded Property -- Congruity Unnecessary: Contention on appeal that city had
improperly annexed certain platted lots due to the fact that one side of lots was contiguous with outdoor
theater and thus such lots were not "wholly surrounded" by city, as required by this section, was without
merit since "wholly surrounded", as used in this section, does not mean city property must also be wholly
contiguous to such property; rather it means that tract is so located that it is impossible to reach it without
crossing city property. Calvert v. Great Falls, 154 M 213, 462 P2d 182 (1969), followed in Missoula Rural
Fire District v. Missoula, 283 M 113, 938 P2d 1328, 54 St. Rep. 480 (1997). See also Missoula Rural Fire
District v. Missoula, _M^, 950 P2d 758, 54 St. Rep. 1459 (1997).
Attorney General Opinions:
What Constitutes "Wholly Surrounded" Parcel: A parcel of land is "wholly surrounded" under this
section when access may be gained only by crossing through the municipality. 42 A.G. Op. 41 (1987).
Collateral References:
Municipal Corporations key 29(4).
62 C.J.S. Municipal Corporations sec 46.
56 Am. Jur. 2d Municipal Corporations sec 70.
7-2-4502. Protest not available. Wholly surrounded land is annexed, if so resolved by the city or
town council, whether or not a majority of the real property owners of the area to be annexed object. The
question of annexing the wholly surrounded land is not subject to being voted on by the registered voters
of the area to be annexed.
History: En. Sec. 1, Ch. 30, L. 1905; re -en. sec. 3214, Rev. C. 1907; re -en. Sec. 4978, R.C.M. 1921; amd. Sec. 1, Ch. 52, L.
1925; re -en. Sec. 4978, R.C.M. 1935; amd. Sec. 1, Ch. 239, L. 1957; amd. Sec. 1, Ch. 238, L. 1959; amd. Sec. 1, Ch. 217, L.
1961; amd. Sec. 1, Ch. 281, L. 1967; amd. Sec. 1, Ch. 510, L. 1977; R.C.M. 1947, 11-403(part); amd. Sec. 8, Ch. 66, L. 1995;
amd. Sec. 7, Ch. 485, L. 1997.
Compiler's Comments:
1997 Amendment: Chapter 485 at beginning of first sentence substituted "Wholly surrounded land"
for "The land" and after "resolved" inserted "by the city or town council"; and inserted second sentence
providing that annexation of wholly surrounded land is not subject to voter approval.
1995 Amendment: Chapter 66 near middle substituted "real property owners" for "resident
freeholders"; and made minor changes in style. Amendment effective February 16, 1995.
Collateral References:
Municipal Corporations key 29(3), 30.
62 C.J.S. Municipal Corporations sec 57.
56 Am. Jur. 2d Municipal Corporations sec 62.
7-2-4503. Restrictions on annexation power. Land shall not be annexed under this part whenever
the land is used:
(1) for agricultural, mining, smelting, refining, transportation, or any industrial or manufacturing
purpose; or
(2) for the purpose of maintaining or operating a golf or country club, an athletic field or aircraft
landing field, a cemetery, or a place for public or private outdoor entertainment or any purpose incident
thereto.
History: En. Sec. 1, Ch. 30, L. 1905; re -en. sec. 3214, Rev. C. 1907; re -en. Sec. 4978, R.C.M. 1921; amd. Sec. 1, Ch. 52, L.
1925; re -en. Sec. 4978, R.C.M. 1935; amd. Sec. 1, Ch. 239, L. 1957; amd. Sec. 1, Ch. 238, L. 1959; amd. Sec. 1, Ch. 217, L.
1961; amd. Sec. 1, Ch. 281, L. 1967; amd. Sec. 1, Ch. 510, L. 1977; R.C.M. 1947, 11-403(part).
Case dotes:
Annexation of Golf Club: The city of Billings began proceedings to annex a golf club. Upon petition of
the golf club, the District Court issued a Writ of Mandamus and then ruled, after trial, that 7-2-4503
deprived the city of the authority to annex a golf club. The city appealed, claiming that it had been
proceeding under the Planned Community Development Act and that golf courses were not exempt from
annexation under that Act. The. Supreme Court agreed with the city that golf courses were not exempt
from annexation under the Planned Community Development Act but held that under that Act, the golf
club could prevent annexation. The court further ruled that because the Planned Community
Development Act provides for judicial review, issuance of a Writ of Mandamus was premature. State ex
rel. Nilands Golf Club v. Billings, 198 M 475, 647 P2d 345, 39 St. Rep. 1132 (1982).
Each Method of Annexation as Separate Procedure: Each of the eight methods of municipal
annexation is a separate and distinct procedure. Therefore, the statutory exemption for golf courses
found in 7-2-4503 does not apply to annexations commenced under Title 7, ch. 2, part 47 (Planned
Community Development Act). State ex rel. Nilands Golf Club v. Billings, 198 M 475, 647 P2d 345, 39 St.
Rep. 1132 (1982).
"Industrial Purpose" Defined. "Industrial purpose" is limited to any factory, business, or concern that
is engaged primarily in the manufacture or assembly of goods or processing of raw materials
unserviceable in their natural state which are extracted, processed, or made fit for use or are substantially
altered or treated so as to create commercial products or materials. Burritt v. Butte, 161 M 1, 508 P2d
563 (1973).
Incidental Agricultural Use of Land Annexed. Contention that 30-acre tract of land was improperly
annexed to city since such land was being used for agricultural purposes and therefore exempt from
annexation under this section was without merit, since evidence indicated that land was primarily held as
developmental parcel for housing development and agricultural use was only incidental thereto. Brodie v.
Missoula, 155 M 185, 468 P2d 778 (1970).
Collateral References:
Municipal Corporations key 29(4).
62 C.J.S. Municipal Corporations sec 46.
56 Am. Jur. 2d Municipal Corporations sec 70, et seq.
Refusal of municipality to annex impoverished area as violative of federal law. 22 ALR Fed. 272.
7-2-4504. What constitutes contiguous lands. Tracts or parcels of land proposed to be annexed to
a city or town under the provisions of this part shall be deemed contiguous to such city or town even
though such tracts or parcels of land may be separated from such city or town by a street or other
roadway, irrigation ditch, drainage ditch, stream, river, or a strip of unplatted land too narrow or too small
to be platted.
Histcuy: En. Sec. 1, Ch. 95, L. 1945; amd. Sec. 1, Ch. 16, L 1955; R.C.M. 1947, 11-404.
Case Notes:
Strip of Land Too Small for Platting: A triangular piece of unplatted land separated the area sought to
be annexed into two tracts of land. Although the triangular strip was a part of a much larger tract, that fact
was immaterial. The only part of the land which was significant was the strip separating the area sought
to be annexed, not the larger area of which the separating strip was a part. If the triangular separating
strip is too small or too narrow to be platted, then the tracts separated by it will be considered contiguous.
Penland v. Missoula, 132 M 591, 318 P2d 1089 (1957).
Collateral References:
56 Am. Jur. 2d Municipal Corporations sec 69.
What land is contiguous or adjacent to municipality so as to be subject to annexation. 49 ALR 3d 589.
7-2-4505. Applicability of part. (1) When the proceedings for annexation of territory to a municipality
are instituted as provided in this part, the provisions of this part and no other apply, except where
otherwise explicitly indicated.
(2) The governing body of the municipality to which territory is proposed to be annexed may in its
discretion select one of the annexation procedures in parts 42 through 47 that is appropriate to the
circumstances of the particular annexation. The municipal governing body must then follow the specific
procedures prescribed in the appropriate part.
History: En. Sec. 3, Ch. 642, L. 1979; amd. Sec. 4, Ch. 130, L. 1981.
Compiler's Comments:
1981 Amendment: Inserted (2) relating to choice of procedure.
Interim Study Committee Bill: House Bill 54 (Ch. 130, L. 1981) was introduced at the request of the
Study Committee on Annexation Laws. See committee report, Legislative Council, 1980.
Codification: Section 4, Ch. 642, L. 1979, provided: "Section 3 is intended to be codified as five
separate sections, each of which is to be an integral part of parts 42, 43, 44, 45, and 46 respectively, of
Title 7, chapter 2; and the provisions contained in Title 7, chapter 2, parts 42, 43, 44, 45, or 46 apply
respectively to section 3 as so codified." Section 3 is codified as 7-2-4204, 7-2-4304, 7-2-4409, 7-2-4505,
and 7-2-4609(2).
Case Notes:
Annexation Without Detraction - Methods of Annexation Separate and Distinct: The 1979
amendments to Montana municipal annexation law created methods of annexation that are separate and
independent of each other and allow a city to annex real property by statute without detraction prior to
annexation. Therefore, a 1974 permanent injunction barring a city from annexing any lands outside city
limits that were situated within a rural fire district was properly dissolved, and the decision set out in
Missoula Rural Fire District v. Missoula, 168 M 70, 540 P2d 958 (1975), which affirmed the 1974
injunction, was statutorily overruled. Missoula Rural Fire District v. Missoula, 237 M 444, 775 P2d 209, 46
St. Rep. 936 (1989).
7-2-4506. Provision of services. In all cases of annexation under current Montana law, services
must be provided according to a plan provided by the municipality as specified in 7-2-4732, except:
(1) as provided in 7-2-4736; and
(2) in first-class cities, when otherwise mutually agreed upon by the municipality and the real property
owners of the area to be annexed.
History: En. Sec. 2, Ch. 642, L. 1979; amd. Sec. 3, Ch. 447, L. 1981; amd. Sec. 9, Ch. 66, L. 1995.
Compiler's Comments:
1995 Amendment: Chapter 66 in (2) substituted "real property owners" for "freeholders"; and made
minor changes in style. Amendment effective February 16, 1995.
1981 Amendment: Inserted "according to a plan provided by the municipality" after "services will be
provided"; substituted "as specified in 7-2-4732" for "as specified in Title 7, chapter 2, part 47"; inserted
(1) that reads: "as provided in 7-2-4736"; and inserted "in first-class cities" and "otherwise" at the
beginning of (2).
Interim Committee Bill. Chapter 447, L. 1981 (HB 58), was introduced at the request of the Study
Committee on Annexation Laws. See committee report, Legislative Council, 1980.
7-2-4511. When land conclusively presumed to be annexed. A tract or parcel of land that has
been shown on municipal maps or plats as being within municipal boundaries but is later found to have
been improperly or unofficially annexed is conclusively presumed to be annexed and may be so recorded
if municipal taxes have been paid on the tract or parcel without protest for a period of 7 years.
History: En. Sec. 1, Ch. 109, L. 1981.
Compiler's Comments:
1981 Title: The title to Ch. 109, L. 1981 (HB 55), read: "An act prescribing conditions under which
land is presumed to be annexed and may be so recorded."
Codification Instruction: Section 2, Ch. 109, L. 1981, provided: "Section 1 is intended to be codified
as an integral part of Title 7, chapter 2, parts 42 through 47, and the provisions of Title 7, chapter 2, parts
42 through 47, apply to section 1."
Interim Study Committee Bill: Chapter 109, L. 1981 (HB 55), was introduced at the request of the
Study Committee on Annexation Laws. See committee report, Legislative Council, 1980.
Case Notes:
Former Law: Prior to the enactment of this section, the exclusive manner of annexation was through
statutory provisions and failure to substantially comply with such provisions defeated annexation. Gregory
v. Forsyth, 187 M 132, 609 P2d 248, 37 St. Rep. 277 (1980); Balock v. Melstone, 186 M 303, 607 P2d
545, 37 St. Rep. 288 (1980).
Collateral References:
What zoning regulations are applicable to territory annexed to a municipality. 41 ALR 2d 1463.
Part •
Annexation by Petitior
Part Case Notes:
Standing to Sue Government in General -- Annexation Proceedings in Particular: Before one has
standing to sue a governmental entity, there must be a case or controversy. The plaintiff must clearly
allege past, present, or threatened injury to a property or civil right, and the injury must be distinguishable
from injury to the public in general, though it need not be exclusive to the plaintiff. In an annexation
protest, annexation is a political matter exclusively for legislative control, absent a constitutional
prohibition. The annexation must be void ab initio, and the challenger must be a property owner who
would suffer a tax increase. The available remedy is an injunction, not monetary damages. A count of
petition signatures for only one of many annexed areas, by a plaintiff who used his own criteria for the
count, is insufficient to support a claim that the government entity inaccurately counted the signatures.
Since plaintiff here had no standing to directly attack the annexation, he could not collaterally attack it by
attempting to show negligence. O'Donnell Fire Serv. & Equip. Co. v. Billings, 219 M 317, 711 P2d 822, 42
St. Rep. 2051 (1985), followed in Knudsen v. Ereaux, 275 M 146, 911 P2d 835, 53 St. Rep. 83 (1996).
Constitutionality — Annexation Generally: Annexation, in the absence of a constitutional prohibition, is
a political matter exclusively for the Legislature to control, and unless specifically restrained by the