Larsen Farms v. City of Plentywood
| Decision Date | 26 May 1965 |
| Docket Number | No. 10869,10869 |
| Citation | 402 P.2d 410,145 Mont. 509 |
| Parties | LARSEN FARMS, a Corporation, Plaintiff and Appellant, v. The CITY OF PLENTYWOOD, a Municipal Corporation, and Vernon Christensen, its Mayor, and Dale Lamphear, George Mehl, Sheldon Haroldson, and Rudolph Foss, its Aldermen, Defendants and Respondents. |
| Court | Montana Supreme Court |
Ludvig Tande, Plentywood, for appellant.
J. E. Rucker, Plentywood, for respondent.
This cause originated in Sheridan County. The plaintiff-appellant is a Montana Corporation and will hereafter be referred to as Larsen. The defendants-respondents are the City of Plentywood, its mayor and aldermen, hereinafter referred to as City.
Larsen commenced the litigation by the filing of a complaint for injunctive relief to prevent the City from building curbs and laying oil pavement in the City and from levying a tax or special assessment against Larsen property and to further enjoin the City from attempting to enforce any such tax.
The complaint stated two causes of action, but the first cause was abandoned and we need only consider the second cause of action.
The record discloses that Larsen is the owner in fee of 5.86 acres of land within the City, unimproved and unplatted for which Larsen paid $400 in 1947.
The City on May 18, 1964, adopted Resolution No. 315, being a Resolution of Intention to construct curbs and lay an oil process on the full length of First Avenue, one of the principal streets in the City. This resolution designated June 26, 1964, at 8:00 P.M. as the time and date for hearing and passing on protests. Larsen filed his protest and the same was overruled.
On July 6, 1964, the City passed Resolution No. 316, which created Special Improvement District No. 42. The boundaries of Special Improvement District No. 42 were declared to be all the property in lots, pieces and parcels of land lying within the boundaries of the city limits of Plentywood as all this property was alleged to be especially benefited by such improvements. The cost of the improvements was to be $47,545.00.
It further appears that the total square feet of the city is 17,085,408 square feet, that protests were filed by owners of property, including appellant on 4,042,331 square feet and that 40 percent of the area would be 6,834,163 square feet; therefore there were insufficient protests to equal 40 percent of the total area in the district as provided for by statute.
Hearing was had before the Honorable Jack R. Loucks sitting without a jury on July 28th and 29th, 1964.
On August 1, 1964, the trial court held for the city in all particulars.
Appellant cites six specifications of error which will be discussed in two groups.
(1) The court erred in not granting a verdict following the expert testimony of Bernt Ward, County Assessor of Sheridan County and the cross-examination of the defendant Mayor of the City, under the adverse witness rule.
(2) The court erred in considering evidence of remote and indirect benefits.
It is deemed expedient to discuss these two specifications of error as a composite, in that the facts surrounding them are commingled.
The court found as a finding of fact that the proposed construction would enhance the market value of appellant's property and that it would receive corresponding physical, material and substantial benefit from the proposed construction and that the levy of taxes for the district would not constitute the taking of appellant's property without just compensation.
In approaching the analysis of the trial court's findings, in an equity case, we first recognize the familiar rule that the findings of the trial court will not be disturbed on appeal, unless the evidence preponderates against them with decisive clarity. Bell v. Bell, 133 Mont. 572, 328 P.2d 115; Schulz v. Brabender, 136 Mont. 152, 345 P.2d 1045.
The Court stated in Platts v. Platts, 134 Mont. 474, 479, 334 P.2d 722, 727:
We now turn to the single question decisive of this case. Does the testimony support the findings of the trial court? Our answer for the reasons appearing hereafter must be 'no'.
We first address ourselves to the 5.86 acres of land, the subject matter of this cause, and its location within the City. One could reasonably assume that it would bring no thought of gracious living if a home were to be constructed upon it. It abuts the Great Northern Railway on the North. Its West boundary is the City limits and to the West across the boundary lies the old City dump. To the southwest approximately 450 feet lies the city sewer lagoon. A further dubious asset to the land in question, is the matter of ingress and egress.
Mr. Bernt Ward, County Assessor of Sheridan County for fourteen years and qualified as an expert on land value testified in part:
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The record discloses that a majority of witnesses for the City had a monetary interest in the outcome of the suit. We shall briefly summarize this testimony.
The Witness, Olaf Aashiem, a businessman, owned 30 feet...
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...Duffie v. Metro. San. & Storm Dist., 147 Mont. 541, 417 P.2d 227; Kosel v. Stone, 146 Mont. 218, 404 P.2d 894; Larsen Farms v. City of Plentywood, 145 Mont. 509, 402 P.2d 410. Additionally the Supreme Court determines whether the trial court's conclusions of law are supported by its finding......
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State ex rel. Professional Consultants, Inc. v. Board of County Com'rs of Ravalli County
...the evidence clearly preponderates against them. See Kosel v. Stone (1965), 146 Mont. 218, 404 P.2d 894; Larsen Farms v. City of Plentywood (1965), 145 Mont. 509, 402 P.2d 410. In a mandamus action the petitioner faces a heavy burden of proving that it is entitled to a writ of mandamus. See......
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State Highway Commission v. West Great Falls Flood Control and Drainage Dist., 11745
...Duffie v. Metro. San. & Storm Dist., 147 Mont. 541, 417 P.2d 227; Kosel v. Stone, 146 Mont. 218, 404 P.2d 894; Larsen Farms v. City of Plentywood, 145 Mont. 509, 402 P.2d 410. Although the State has not excepted to the findings of fact not moved to amend or modify them, we do not rest on th......
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Duffie v. Metropolitan Sanitary and Storm Sewer Dist. No. 1
...of the trial court will not be disturbed on appeal, unless the evidence preponderates against them with decisive clarity. Larsen Farms v. City of Plentywood, supra; Bell v. Bell, 133 Mont. 572, 328 P.2d 115; Schulz v. Brabender, 136 Mont. 152, 345 P.2d 1045. Thus, we look to see whether the......