Montana State Highway Commission v. Robertson & Blossom, Inc.

• Decision Date: 22 May 1968
• Docket Number: No. 11262,11262
• Parties: MONTANA STATE HIGHWAY COMMISSION, Plaintiff and Appellant, v. ROBERTSON AND BLOSSOM, INC., a Montana Corporation et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 181

441 P.2d 181

151 Mont. 205

MONTANA STATE HIGHWAY COMMISSION, Plaintiff and Appellant, v. ROBERTSON AND BLOSSOM, INC., a Montana Corporation et al.,

Defendants and Respondents.

No. 11262.

Supreme Court of Montana.

May 22, 1968.

Daniel J. Sullivan (argued), John P. Poston, Helena, for appellant.

Howard C. Burton (argued), William Coder, Great Falls, for respondent.

CASTLES, Justice.

This is an appeal from a judgment in a condemnation proceeding by the State Highway Commission. The appeal is from only part of the judgment as it pertains to James and Betty Robertson, respondents here.

The action was brought by the State to condemn certain lands in Cascade County belonging to Robertson and Blossom, Inc., a Montana Corporation. After the action was filed, James and Betty Robertson and some fifteen other landowners of property in a subdivision of the City of Great Falls were allowed to intervene as defendants. These intervening landowners claimed that the taking by condemnation of the Corporation land had an effect upon their property, and that such effect was upon a property right protected by the Constitution of the State of Montana.

Trial was had which resulted in a verdict assessing damages due from the State to the Corporation for the value of the land taken and for depreciation to the remainder of the Corporation's land not taken. The fifteen other property owners mentioned above were awarded no damages. The respondents, James and Betty Robertson, were awarded $28,614.79 as the difference in the fair market value of their property before and after the taking. It is from the judgment on this verdict to Robertsons that the appeal is taken.

Additionally, as background, the judgment to Robertson and Blossom, Inc., for a strip of land 7.70 acres in size, including damages to the remainder, was for $26,050. An issue arose over payment of the judgment to the respondents herein. See our opinion appearing in Robertson v. State Highway Comm., 148 Mont. 275, 420 P.2d 21.

In 1954, James Robertson and his wife, Wilda Robertson, James D. Cave and his wife, Josephine Cave, as general partners doing business under the name C & R Sales and Service, purchased about 80 acres of land from McNair Realty Co. for the purpose of sbudividing and developing the same for residential purposes. The tract was bounded on the north by the Sun River Addition to Great Falls, on the east by the University Addition to Great Falls, on the south by the center line of University Avenue extended westward and on the west by Great Falls International Airport, then known as Gore Field.

In 1956, C & R Sales and Service employed Wenzel & Co. to plat the tract into streets, lots and blocks, constituting a subdivision to be known as West Hill; to lay out rights of way for underground utilities and to do all engineering incident to the establishment of lot corners, street grades and the lay out of sewer and water mains. The plat was completed by Wenzel & Co. on May 10, 1956, and with certificate of dedication complete as of May 14, 1956, was delivered by Wenzel as ready for recording. This plat is referred to herein as West Hill plat one.

On March 13, 1956, plat one was approved by the City-County Planning Commission and all prerequisites to recording were complete but recording was deferred until the area was ripe for admission as an addition to the City of Great Falls.

Immediately after the plat was approved by the City-County Planning Commission Robertson and Cave undertook development of the acreage according to the plat and by December of 1957, the rough grading of all streets had been achieved. Admission of the proposed addition to the City was deferred by the City Council pending the approval of a bond issue providing for augmented city water facilities and recording of the plat was accordingly deferred.

In the spring of 1958, the developers received word that the State planned to drive an interstate highway through the acreage they had purchased and commenced to develop. Though the route was not definitely fixed, there was left little doubt that the route would pass through West Hill. All work was suspended, for reasons that appear later.

Plat one contained 150 lots with an average of 11,262 square feet per lot, or 3.035 lots per acre and provided five means of access to county roads and the public street system of Great Falls. At the time work on plat one was supended, engineering costs amounted to $6,671.45 and grading costs amounted to $34,200.00.

It is asserted that in an effort to shape the future of the subdivision and to minimize trouble and expense to the State, the developers dispatched William Wenzel to Helena, who worked with the State Highway Department in an effort to finalize its land requirmements, and to determine the proposed road network so that access could be planned. After repeated conferences, Wenzel was finally given a plat of the land which the State Highway Department felt it would require for its proposed interstate route.

Acting on the basis of the information so provided by the State Highway Department, the developers employed Wenzel & Co. in 1959, to replat the subdivision ins such fashion as to exclude the tract desired by the State Highway Department for interstate purposes. The new plat, referred to herein as West Hill plat two, was completed on February 23, 1961, and the subdivision, as replatted, was admitted to the City of Great Falls as an addition on March 28, 1961.

The engineering costs involved in replatting West Hill and in staking new street lines and grades and lot corners amounted to $11,137.90. When redesign of the plat was complete, the developers immediately regarded the new streets. In so doing, 35 percent of the original grading done in plat one, representing a cost of $11,970.00, was lost and in addition, the sum of $2,948.19 was expended to obliterate grading on plat one so that regarding on plat two could go forward. In all then, $14,918.19 was lost in grading costs. Ninety percent of the engineering and grading costs put into plat one was lost by the changeover.

Plat two released approximately 10.42 unplatted and unimproved acres for highway use, and since the proposed interstate strip separated West Hill from Third Street of the University Addition, it required the use of approximately 3.31 acres for a frontage road paralleling the interstate route. The redesign produced 114 lots with an average of 10,790.65 square feet per lot or 2.814 lots per acre.

On its face, plat two provided two means of access to the public street network, these being via 1st West Hill Drive and 4th West Hill Drive to a county raod bordering the Addition along its northeast edge. At the southeast extremity of the Addition, However, 4th West Hill Drive, Which marks the western and southern perimeter of the road network of the Adition, and 1st West Hill Drive, the frontage road which marks the east perimeter of the road network of the Addition, meet and dead-end on University Avenue extended westward and on a recorded easement held by the City of Great Falls for the passage of utility mains to Great Falls International Airport and the maintenance of a booster pump station.

The strip held by the City for a utility easement was granted on June 1, 1938, and has been used continuously since that time as an extension of University Avenue and as a means of access by motor vehicles to the City's booster pump station, to the lands of McNair Realty Co., and to those lands procured for the development of West Hill from McNair Realty Co. In plat one, 4th West Hill Drive was extended adjacent to and upon this easement to join with University Avenue as the prime means of access between West Hill and the public street network. The easement granted to the City contained an express reservation in the grantors permitting their use of the strip as a roadway.

In April of 1962, the partnership C & R Sales and Service was dissolved with the result that James Roberston, then an unmarried widower, became vested with title to all peroperty procured by the developers from McNair except the park property and streets dedicated to the public in plat two of West Hill and except Lots 10, 11, and 12, Block 1; Lots 21 and 35, Block 3; and Lot 4, Block 9 of West Hill which were retained by James D. Cave and his wife Josephine Cave.

In July of 1962, Robertson sold the first ten lots in the subdivision to Donald H. lueder, a home builder, at a price of $2,800.00 per lot, under a contract which required Lueder to build on the lots and promote the Addition. Lot sales progressed from this time until June of 1964, with prices ranging from $3,200.00 to $3,470.00 per lot. All sales were effected through Robertson's Inc., a family corporation controlled by James Robertson.

Lueder built and sold a total of eighteen homes all being situated alone 2nd West Hill Drive. The first of such homes was sold in November of 1962, the laet in December of 1964, and all were occupied. From the time of the sale of the first home until after the start of construction on the interstate highway, all access from the county road on the northeast of West Hill into the Addition via the platted streets 1st and 4th West Hill Drives was completely blocked and the only access into West Hill from the public network of streets and roads was either, (1) via U.S. Highway 91 and University Avenue across the proposed interstate highway strip on the City's utility easement to 1st West Hill Drive, or (2) via the county road known as old U.S. 91 to a turnoff point just east of the Addition, thence, across the middle of the proposed interstate highway strip to 1st West Hill Drive. Both of such routes were visible on the terrain and were the only means of ingress to, and egress from, West Hill.

The developers, James Robertson and James D. Cave, had, for years preceding April 1962, been equal owners in a corporation engaged in the general construction...