STATE HWY COMM N v MARSH
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No. 11816 I N T E SUPREME C U T O THE STATE O M N A A H OR F F OTN 1974 T E STATE O MONTANA, ACTING BY AND H F THROUGH T E STATE HIGHWAY COMMISSION H F O THE STATE O MONTANA, F P l a i n t i f f and Respondent, HAZEL MARSH, M L O M W. E V N AC L and MARGERY H. ENMAN, Defendants and Appellants. Appeal from: D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t , Honorable Sid G. Stewart, Judge p r e s i d i n g . Counsel o f Record : For Appellants : Knight, Dahood and Mackay, Anaconda, Montana Wade J. Dahood argued, Anaconda, Montana Raymond J. Fox, Missoula, Montana For Respondent : Daniel J . S u l l i v a n argued and Donald A. Douglas argued, Helena, Montana Submitted: Decided: Filed : September 18, 1974 r j 1 6 1974 ~ ~ Mr. Justice John C. Harrison delivered the Opinion of the Court. This is an appeal by a landowner from a jury verdict in a condemnation action-tried on June 4, 1969, Hazel Marsh owns a ranch located in an area known as Bearmouth, Montana, some twelve miles west of Drummond, Montana. She has owned the ranch since 1961. At the time of this action she had leased the entire property to Malcolm W. and Margery H. Enman, who operated the property as a cattle ranch. In the late 1960's the State Highway Commission determined the necessity to condemn a portion of the ranch property for use in the construction of a new interstate highway. The taking con- sisted of the land needed for the highway, a gravel source, rest areas, and some portions of the ranch which would become totally landlocked and thereby valueless to the ranch operation. The take here consisted of some land owned by Mrs. Marsh between the Clarks Fork River and the Interstate roadway. 1..y amount of total take was in question and never f 3 l l The presented to the jury. The case went to trial on the question of damages only, the necessity for the condemnation having been determined by the district court. The jury returned a verdict for the appellant in the amount of $52,000. The appellant presents three issues for our review: 1. Whether it was error to refuse to allow Hazel Marsh, the landowner, to testify as to her opinion of the value of the property taken. 2. Whether it was error to refuse to allow the lessee to testify as to his loss and damages. 3. Whether it was error to strike the testimony of Marsh's expert witness as to alleged severance damages. On appeal this Court rendered an opinion on May 6, 1974, remanding the case to the district court for a new trial. -2- On p e t i t i o n f o r r e h e a r i n g t h e o p i n i o n was withdrawn, t h e c a u s e r e a r g u e d and t h i s o p i n i o n f o l l o w s ; S e v e r a l grounds enumerated i n t h e p e t i t i o n e r ' s motion f o r r e h e a r i n g and argued a t r e h e a r i n g w i l l b e covered i n t h i s o p i n i o n . The f i r s t i s s u e i s d i r e c t e d a t t h e t r i a l c o u r t ' s S r i k i n g t h e t e s t i m o n y of Hazel Marsh, t h e landowner. M r s . Marsh t e s t i f i e d t h a t s h e had been t h e owner of t h e r a n c h s i n c e 1961 and a l s o i n d i c a t e d t h a t a c o n s i d e r a b l e p a r t of h e r l i f e had been s p e n t on t h e r a n c h . She was t h e f o s t e r c h i l d of t h e William Lannens, l o n g t i m e owners of t h e l a n d , and had been r a i s e d on t h e r a n c h . I n a d d i t i o n s h e i n d i c a t e d by h e r t e s t i - mony t h a t d u r i n g h e r m a r r i a g e s h e had s p e n t some t i m e on t h e r a n c h . H e r testimony a l s o revealed a f a m i l i a r i t y with t h e various t y p e s o f l a n d making up t h e r a n c h , i t s s i z e and makeup a s t o deeded and l e a s e d l a n d . She t e s t i f i e d t h a t t h e r e were 550 c u l t i - v a t e d a c r e s , a b o u t 6,000 a c r e s of p a s t u r e l a n d , p l u s some 1 , 1 0 0 a c r e s of t i m b e r l a n d . I n a d d i t i o n s h e was f a m i l i a r w i t h t h e num- b e r o f m i l e s of s t r e a m o r r i v e r f r o n t a g e and t h e amount of a c r e a g e t o be t a k e n by t h e highway p r o j e c t . I n a d d i t i o n , s h e i s a woman of c o n s i d e r a b l e e d u c a t i o n . She i s a c o l l e g e g r a d u a t e w i t h a Master of A r t s d e g r e e i n L i b r a r y S c i e n c e , worked f o r t h r e e y e a r s a t Notre Dame U n i v e r s i t y a s a l i b r a r i a n and h a s done o t h e r work i n t h a t f i e l d . With t h i s background t e s t i m o n y b e f o r e t h e t r i a l c o u r t t h e a p p e l l a n t was asked "Are you f a m i l i a r w i t h t h e market v a l u e of t h e l a n d s which you own?", and s h e answered t h a t s h e w a s , on t h e b a s i s o f " d i f f e r e n t o f f e r s t h a t I have had f o r t h e p r o p e r t y , and a t which t i m e a motion t o s t r i k e was made and g r a n t e d . * * *", An e f f o r t was made t o g e t "market v a l u e " i n and t h e c o u r t d e n i e d i t s admiss i o n on t h e b a s i s of a r e c e n t Supreme C o u r t c a s e o f S t a t e Highway Commission v . Barnes, 1 5 1 Mont. 3 0 0 , 305, 4 4 3 P.2d 1 6 . on t h e o b j e c t i o n , t h e judge s t a t e d : In ruling " * * * The Montana Supreme Court, in a very recent decision, has stated that a landowner cannot place a value on his land unless they have qualifications pretty much the same or similar to an expert. The mere fact they own the property, and think they have a value for it, is not a basis alone for placing a valuation on the property, according to that Supreme Court decision." That was the law to guide the court, but Barnes is factually different than those before us here. In Barnes we noted: " * * * It is to this testimony on depreciation that the error goes, due to the failure to lay any foundation that Mr. Barnes testified from 'some peculiar means of forming an intelligent and correct judgment as to the value of the property1 or facts within his knowledge as to values he testified to. In addition he did not use accepted procedures in arriving at the value figures. His value testimony would have been acceptable had he used as a basis for his testimony 'market values1, 'the animal unit method' or had he shown how he arrived at his figures." Here the Court cut off the giving of any figure on "market values" and prevented trial counsel's further developing "the animal unit method" or any other she might have arrived at. Coun- sel for appellant did not develop his witness into these areas, however the fact remains, that up until the motion to strike, the more than witness had been developed to a point that indicated she had/I1some peculiar means of forming an intelligent and correct judgment as to the value of the property". We find the court erred in its ruling necessitating a retrial of the case. A recent Montana Law Review article, "The Montana Law of Valuation in Ehinent Domain" by John F. Sullivan, Vol. 34, No. 1, p. 90, notes that the problem of the landowner exception is whether it is still the law of Montana after the cases of State Highway Commln v. Barnes, supra; State Highway Comm'n v. Wilcox, 155 Mont. 176, 181, 468 P.2d 749; Alexander v. State Highway Commln, 142 Mont. 93, 110; 381 P.2d 780; State v. Peterson, 134 Mont. 52, 63, 328 P.2d 617: Three Forks v. State Highway, 156 Mont. 392, 480 P.2d 826; State Highway Commln v. Bennett, 161 Mont. 510, 513 P.2d 5, 30 St.Rep. 702, State Highway Commln v. Keneally, 142 Mont. 256, 384 P.2d 770, and recommends that the matter is one for legislative action. Particular note is made of allowing landownerst testimony and a recommendation is made that only experts be allowed to testify. However, by the very nature of this type of action, where contrary to other civil actions the burden of proof must be borne by the defendant landowner to prove just compensation in excess of that offered by the condemnor state, we restate the rule below for this jurisdiction. This Court in Alexander reviewed the entire line of Montana cases allowing an owner to testify as to the value of his property, and after citing the rule as stated therein, at page 110, concluded: "We now restate the rule to be that an owner, upon prima facie proof of ownership, shall be qualified to estimate in a reasonable way the Galue of his property for the use to which he has been putting it. Such owner is not qualified by virtue of ownership alone to testify as to its value for other purposes unless he possess, as any other witness as to value, 'some peculiar means of forming an intelligent and correct judgment as to the value of the property in question beyond what is presumed to be possessed by men generally.'" It should be noted that as stated, this basic landowner-witness rule consists of two parts: (1) The landowner on prima facie showing of ownership, may testify as to value, so long as: a. His testimony is "reasonable", and b. The value testified to is for the uses to which he is putting the land. (2) However, if the landowner desires to testify as to value "as to other purposes", then: a. He must have "some peculiar means of forming an intelligent and correct judgment * * * beyond what is presumed to be possessed by men generally." As so stated under (I), the appellant should have been allowed to to qualify as a witness. -5- I s s u e No. 2 i s d i r e c t e d a t t h e c o u r t ' s r e f u s a l t o a l l o w t h e l e s s e e t o t e s t i f y a s t o h i s l o s s and damages. e r r o r i n t h e c o u r t ' s holding. was n e v e r o f f e r e d . W e f i n d no F i r s t , t h e l e s s e e Enman's l o s s Enman was asked how t h e t a k e would a f f e c t t h e o p e r a t i o n of t h e r a n c h . The S t a t e o b j e c t e d and c o u n s e l f o r a p p e l l a n t e x p l a i n e d t h a t t h e q u e s t i o n was o f f e r e d o n l y t o show how t h e o p e r a t i o n of t h e r a n c h was a f f e c t e d . On t h i s b a s i s t h e c o u r t p e r m i t t e d Enman t o answer b u t d i r e c t e d t h a t t h e answer go o n l y t o t h e o p e r a t i o n o f t h e r a n c h and n o t t o any l o s s . Second, t h e l e a s e i t s e l f , which was i n e v i d e n c e , p r o v i d e d t h a t any condemnation award went t o t h e owner and n o t t h e lessee. A s a n a d d i t i o n a l r e a s o n f o r g r a n t i n g a new t r i a l i t a p p e a r s from t h e o u t s e t t h a t t h i s c a s e was a c o n f u s i n g f a c t u a l c a s e f o r t h e j u r y , due t o t h e f a c t t h a t t h e maps used d u r i n g t r i a l were n o t marked s o a s t o t i e i n t o t h e t e s t i m o n y g i v e n a t t h e t r i a l . In addition t h e t r a n s c r i p t i s r e p l e t e with inconsistencies a s t o t h e e x a c t amount o f a c r e a g e t a k e n by t h e S t a t e and l a n d l o c k e d due t o t h e taking. 1. To i l l u s t r a t e : Hazel Marsh t e s t i f i e d t h a t t h e a c t u a l t a k e amounted t o 183 a c r e s of which 34 were l a n d l o c k e d . 2.Rodenberger t e s t i f i e d t h a t t h e a c t u a l amount t a k e n w a s 192.79 a c r e s o f which 43.10 a c r e s were l a n d l o c k e d . 3. I v a n Shaw, t h e s t a t e ' s a p p r a i s e r , based h i s a p p r a i s a l on a t a k e of 178.22 a c r e s . I n a d d i t i o n it a p p e a r e d from t h e argument, b o t h a t t h e o r i g i n a l h e a r i n g and a t t h e r e h e a r i n g , t h a t even a t t h e t i m e of t h e t r i a l t h e e n g i n e e r s d i d n o t have a l l t h e f a c t s and f i g u r e s o f t h e t a k e s o a s t o e n a b l e c o u n s e l on b o t h s i d e s of t h e t a b l e t o be e x a c t i n g e t t i n g t h e c a s e t o t h e j u r y . T h i s C o u r t h a s ex- amined t h e t e s t i m o n y and e x h i b i t s and i s i t s e l f u n a b l e t o d e t e r mine e i t h e r t h e t o t a l t a k e o r t h e v a r i o u s a c r e a g e s a f f e c t i n g the ultimate question of damages. The cause is remanded to the district court with directions to grant a new trial. \ We concur: . I C Chief Justice Justices \ Justice
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