State Highway Commission v. Metcalf, 11821
| Decision Date | 25 September 1972 |
| Docket Number | No. 11821,11821 |
| Citation | 160 Mont. 164,500 P.2d 951 |
| Parties | The State of Montana, Acting By and Through the STATE HIGHWAY COMMISSION of the State of Montana, Plaintiff and Appellant, v. Fred L. METCALF and Kennybelle Metcalf, husband and wife, Defendants and Respondents. |
| Court | Montana Supreme Court |
Daniel J. Sullivan, argued, James R. Beck, Highway Legal Dept., Helena, for appellant.
Clayton R. Herron, argued, Helena, for respondent.
This is an appeal from a judgment for defendants after a jury verdict in their favor in the district court of the third judicial district, county of Granite. Proceedings in the district court were in eminent domain following an award by commissioners appointed to assess damages as compensation by reason of appropriation of defendants' property for highway purposes. Plaintiff, State of Montana, acting by and through the State Highway Commission and hereinafter referred to as the Highway Commission, appeals and presents three issues for this Court's consideration:
1. In a condemnation action, when it is demonstrated that a valuation witness does not possess a peculiar knowledge of the property beyond that which is possessed by men generally, but is merely basing his testimony upon unsupported assumptions and conjecture, is it error for the district court not to strike the testimony of the witness?
2. In a condemnation action, is it error for the district court to refuse the following instruction:
'You are instructed that where testimony is submitted in an effort to establish just compensation, and that such testimony is obtained from expert witnesses, then, and in that event, the opinions as expressed by the experts must be founded upon substantiated evidence, and must not be based upon unsupported assumption, conjecture or speculation.'
3. When the opinion expressed by a witness is based on speculation and conjecture and is opposed by undisputed facts and the dictates of common sense, is it sufficient to support the award in this case?
The property taken by the state for construction of the Interstate highway can be broken down into two parcels. The total acquisition was some 16.5 acres. Parcel No. 1-consists of hay land; the residence and clinic of Dr. Fred L. Metcalf, a veterinarian; and a shelter belt and landscaping around the residence. Parcel No. 2-consists of a two acre tract with a mound of earth containing a gypsum or gypsite deposit of some 23,000 tons.
The entire thrust of this appeal is directed to the value of parcel No. 2 and no discussion or issue is made as to parcel No. 1. As to the value of the property taken, the jury was given three possible verdicts: (a) it could set the valuation of the deposit, (b) it could have set a separate valuation on each parcel, or (c) it could have listed the value of the property taken, the damages to the remainder and the total award. The jury chose to make only a total award of $125,000, indicating no separate valuations.
The basic facts involved are not contested by either party.
The land involved is part of a twenty acre tract of land owned by Fred L. Metcalf and Kennybelle Metcalf, husband and wife, hereinafter referred to as defendants.
The taking was necessary for the purpose of constructing a four lane controlled access Interstate highway. The Metcalf property is located some 4 or 5 miles west of Drummond, Montana. The entire tract owned by defendants is south of, and adjoining on its length primary U.S. Highway No. 10. South of the tract is the main line of the Northern Pacific Railroad.
The tract is located on a slope rising upward from east to west. The lower and eastern part of the property was used for raising grass. Above that area was the residence and animal clinic of defendant, the only veterinarian in Granite County. The property around the house was landscaped and had an extensive shelter belt, almost surrounding the house. West and uphill from the improved area was the access road from U.S. Highway No. 10 which ran southerly from the highway, thence east near or into the Northern Pacific right-of-way, then back north to the east side of defendants' house and clinic. The road was also used by one Mr. Nelson to gain access from U.S. No. 10 to a siding of the Northern Pacific Railroad called Bradham siding.
Other than this roadway, the land west of the improved area was in its natural state and would be considered as grazing land. It contained, however, a long, low mound running approximately from U.S. Highway No. 10 in a southerly direction to, and into, the Northern Pacific right-of-way. The mound covered approximately two acres of the tract. This mound became important in this case when it was discovered that it contained and was composed of the chemical compound 'gypsum' or because of the texture of the deposit, the correct terminology could be 'gypsite', but hereinafter will be referred to as 'gypsum'.
The nature of the highway acquisition was that some 16.5 acres of the tract were taken, leaving only a strip of land about 3.5 acres in size between the constructed Interstate and the primary Highway No. 10 which was left in place as a frontage road for the Interstate. The taking took the hay land, the residence and clinic, the shelter belt and landscaping, and went through the mound containing the gypsum. The roadway to the railroad siding was preserved by means of a concrete structure under the Interstate highway.
At trial, there was disputed testimony as to the exact value of the damage inflicted by the taking of parcel No. 1. Defendants introduced testimony that placed their damages for that parcel at $70,000; the Highway Commission introduced testimony that fixed damages at $40,000. But here, on appeal, the main issue is whether or not the gypsum deposit, or parcel No. 2, was correctly valued by the jury.
To find the jury's valuation of parcel No. 2 we can only ascertain it took the valuation testimony of defendants' witness McLeod, or $80,000, as its value leaving the balance of the $125,000 award, or $45,000, as the value of parcel No. 1. On retrial, the jury should designate the award for each parcel and then the total.
The gypsum deposit was discovered by state highway geologists in 1963. The purpose of their exploration was to determine the strata of the mound insofar as it would affect highway construction. This type of deposit was not suitable base on which to construct a highway; consequently, the mound was removed and stockpiled a short distance from the highway.
The deposit of gypsum occurred naturally from the evaporation and percolation of ground waters. The two acre deposit extended downwards from ground surface at an average overall depth of 7.8 feet, and varied in depth between 3 and 12 feet. An average of about .4 of a foot of overburden existed over the deposit. The deposit contained 23,000 tons of gypsum which was 85% or better pure gypsum. It contained 21,000 tons which was 90% gypsum or better, a generally accepted commercial grade of gypsum. Gypsum, even though the percentage is less than 90%, can be used for agricultural purposes.
Agriculturally gypsum has three main purposes: (1) to treat alkali soils, (2) to provide sulphur nutrients to soils (the gypsum here involved contained 17% sulphur on the average), and (3) to condition soils to allow a greater permeation of water and soil nutrients. Gypsum is beneficial to sand-loam soils, silt-loam soils, and to loam and sandy soils generally. All of these types of soil exist in the lower valley of Granite County and in western Montana.
Defendants introduced testimony that one retail source in Hamilton, Montana, has been selling 500 to 600 tons of gypsum for agricultural purposes per year, and that in western Montana generally the retail buyers of gypsum in bulk have been paying $10 per ton, plus shipping costs of $10 per ton. Defendants contended that if retail buyers could buy gypsum at a cheaper price, they would buy and sell more. Defendants also contended ranchers and farmers in the Drummond area must pay $22 to $26 per ton retail for sacked gypsum material and that a few weeks after the discovery of this gypsum deposit defendants sold approximately 130 tons to farmers and ranchers in the area at a price of $10 per ton, with purchasers hauling away their gypsum. These sales stopped when legal counsel advised defendants that the state of Montana presently owned the gypsum. Defendants also introduced testimony that the cost of shipping this gypsum to Hamilton would be between $5 to $7.37 per ton, depending on whether rail or road transportation was used. They further contended that a market exists for the widespread use of gypsum...
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