State Highway Commission v. Manry

• Decision Date: 16 December 1963
• Docket Number: No. 10470,10470
• Citation: 143 Mont. 382,390 P.2d 97
• Parties: The State of Montana, acting by and through the STATE HIGHWAY COMMISSION of the State of Montana, Plaintiff and Respondent, v. Albert C. MANRY and Lillian P. Manry, of Bozeman, Montana, Defendants and Appellants.
• Court: Montana Supreme Court

Page 97

390 P.2d 97

143 Mont. 382

The State of Montana, acting by and through the STATE

HIGHWAY COMMISSION of the State of Montana, Plaintiff and Respondent, v. Albert C. MANRY and Lillian P. Manry, of Bozeman, Montana,

Defendants and Appellants.

No. 10470.

Supreme Court of Montana.

Dec. 16, 1963.

Rehearing Denied March 25, 1964.

James H. Morrow, Jr., Bozeman (argued), Robert P. Ryan, Billings (argued), for appellants.

K. M. Bridenstine, Helena (argued), for respondent.

JOHN C. HARRISON, Justice.

This is an appeal by Albert and Lillian Manry from a judgment entered in the district court of Gallatin county in a condemnation proceeding instituted by the State of Montana, respondent.

The court below appointed commissioners, who entered an award of $50,000 from which the State appealed and the defendants cross appealed. The case was then tried to a jury, which awarded the appellants $40,477. It is from this judgment that the appellants have appealed to this court.

The appellants own a ranch about 11 miles east of Bozeman. Prior to this action the ranch comprised about 655 acres. This ranch consisted of three tracts of land, two of which were separated from the third and each other by the new highway and certain railroad tracks. All of the principal buildings, including the appellants' home were within the right of way taken by the respondent State of Montana, with the exception of the barn and the corrals. The three tracts, although physically separated were accessible to each other by the use of U. S. Highway 10, a railroad bridge used as an underpass, and a tract of land leased by the defendants from the Northern Pacific R. R. Co. The tracts located south of the highway were used for grazing and pasture. The tract north of the highway consisting of approximately 355 acres contained all the cultivated and had land as well as the buildings. The land condemned by the State was a strip of land which ran the length of the south border of the northern tract of the ranch.

At the trial the defendants' evidence consisted primarily of their own testimony to establish the physical features and the manner of use of the land before the taking. Appraiser Saunderson testified as to the value of the ranch as a unit before the taking and its value after the taking of the strip. He assessed the damage to the appellants to be $65,920. The appellants also called an architect whose testimony supported the reconstruction cost used by Saunderson for the house and barn.

The respondent's case consisted chiefly of the testimony of three appraisers. These appraisers assessed the damages to be: Mr. Sparhawk $36,000, Mr. Hoiekvam $46,018 and Mr. Ford $44,800.

The appellants allege five separate specifications of error. The first one is that the court erred in refusing to give defendants' offered instruction No. 20 reading:

'You are instructed that the evidence in this case conclusively shows that the defendants will be left without any access to their lands remaining north of the proposed highway. This amounts to a taking of these lands within the constitutional meaning of the term, and in determining your award to defendants, you must award full value to the defendants for the lands lying north of the new highway.'

If this instruction had been given it would have amounted to a finding by the trial court that all means of access to the property had been destroyed. While it is true that the question of whether or not there has been an impairment of access is generally in the province of the trial court, People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799; People v. Sayig, 101 Cal.App.2d 890, 226 P.2d 702; People ex rel. Department of Public Works v. Murray, 172 Cal.App.2d 219, 342 P.2d 485, the extent to which access has been impaired is a question of fact for the jury to decide. People v. Ricciardi, supra, People v. Sayig, supra, People ex rel. Dept. of Public Works v. Lipari, Cal.App., 28 Cal.Rptr. 808. The trial judge, then, did not err in refusing to give this proposed instruction.

The second specification of error is that the court erred in refusing to grant a new trial on the grounds that the jury was interfered with by the publication of a cartoon which appeared in a newspaper. The appellants support their contention with affidavits of three jurors. One of the jurors alleged that he saw the cartoon; that the paper was left in the jury room; and that he saw some of the other jurors reading it. Another juror averred that he saw the newspaper in the jury room. The other stated that while a juror she saw the cartoon in question and thought of condemnation cases in general when she read it. These affidavits are the only proof of this alleged error. They cannot be used in support of a motion for a new trial. This court has always followed the rule that a verdict cannot be impeached by the jurors who rendered it, save where the affidavits show that their verdict was reached by other than a fair expression of opinion by all the jurors, as for example, where it was reached by drawing lots. Hough v. Shishkowsky, 99 Mont. 28, 43 P.2d 247; ...