State Highway Commission v. Beldon, 12745

• Citation: 531 P.2d 1324, 166 Mont. 246
• Case Date: March 12, 1975
• Court: United States State Supreme Court of Montana

Page 1324

531 P.2d 1324

166 Mont. 246

The State of Montana, acting by and through the STATE

HIGHWAY COMMISSION of the State of Montana, Plaintiff and Appellant, v. Mary A. Smith BELDON et al., Defendants and Respondents.

No. 12745.

Supreme Court of Montana.

Submitted Jan. 13, 1975.

Decided Feb. 19, 1975.

Rehearing Denied March 12, 1975.

Daniel J. Sullivan and James Driscoll, James Driscoll argued, Helena, for plaintiff and appellant.

Corette, Smith & Dean, Kendrick Smith argued, Butte, for defendants and respondenst.

JOHN C. HARRISON, Justice.

This is an appeal by the State Highway Commission from a jury verdict rendered in a condemnation action. The taking consisted of 61.4 acres for the construction of a highway and 7.7 acres for construction permits and easements. The condemned land is included within a ranch located a short distance east of the community of Melrose, Montana. The new interstate highway crosses through the ranch from north to south for a distance of approximately one mile and roughly bisects the ranch. The jury awarded compensation in the amount of $97,000 which included $30,000 for the value of the land taken and $67,000 as depreciation to the remainder.

At trial three witnesses testified as to just compensation for the landowners and two testified on behalf of the State. The valuations placed upon the condemned land and the damages to the remainder can best be summarized by the use of this chart:

                                         LANDOWNER'S WITNESSES
                                         ---------------------
                                      Value of Land Taken  Depreciation      Total
                                      -------------------  ------------  --------------
                  1.  Donald Smith          $55,575          $82,215           $137,790
                  2.  Ralph Potts            52,650           68,425            121,075
                  3.  Joe Buyan              52,650           78,300            130,950
                                           STATE'S WITNESSES
                                           -----------------
                  1.  Russell Gasser         18,000           20,200             38,200
                  2.  Robert Shedd           19,700           10,300       * 48,800
                * Includes additional amount of $18,800 for "cost to cure"
                

On appeal the only error alleged by the State concerns Instruction No. 21 given by the district court. This instruction reads:

'You are instructed that you may not award compensation in excess of the amount of $137,790.000 which is the highest appraisal on behalf of the defendants; nor may your verdict be less than the sum of $48,800.00, the amount of the lowest testimony offered by the State of Montana in this matter.

'The burden of proof is upon the defendants to prove they are entitled to an amount greater than $48,800.00, which is the lowest testimony offered by the State in this matter.'

The issue is whether the district court committed reversible error necessitating a new trial by placing the sum of $48,800 as the lowest testimony of the State when one of the State's appraisers, Russell Gasser, testified to a figure of $38,200.

The State asserts Instruction No. 21 is erroneous because it removed Russell Gasser's testimony from the jury's consideration and cites in support 75 Am.Jur.2d, Trial, § 655, which states:

'A party is entitled to have the jury consider all the evidence properly before them in arriving at their verdict, and an instruction is erroneous if it ignores any material, conflicting, or qualifying evidence which the jury are bound to consider in forming their verdict, or if it withdraws from their consideration any evidence, however weak, tending to establish material facts. * * *'.

In determining why the trial court did not use the lowest figure testified to we set forth the sequence of events that transpired while the instructions were being settled:

'THE COURT: The Court proposes to give Instruction No. 21 tendered by the landowners.

'MR. SMITH: May the record show that the landowners submitted Instruction D21 with the blank spaces left blank and has inserted as its offer of the instruction only the higher amount of $137,790.00. The specific objection to which the landowner is now objecting is the insertion of the sum of $38,200.00 where there is testimony by one of the State's own witnesses, Mr. Robert Shedd, that just compensation should be in the higher amount of $48,800.00 and that it is not fair, proper, legal, equitable or just for the State to seek to get the lowest amount of its lowest witness when it has testimony by another witness for a higher amount of $10,600.00 or more.

'THE COURT: Objection sustained.

'MR. SULLIVAN: Could we be heard on it for just a minute. I think the lowest testimony of just compensation by the Defendants if (sic) approximately One Hundred Twenty-One.

'MR. SMITH: One Hundred Twenty-one what?

'MR. SULLIVAN: Thousand. Somebody had $121,000.00.

'MR. SMITH: That is correct.

'MR. SULLIVAN: If that is the case, the same thing...