State Highway Commission v. Renfro

• Decision Date: 19 January 1973
• Docket Number: No. 12172,12172
• Citation: 505 P.2d 403,161 Mont. 251
• Parties: The STATE HIGHWAY COMMISSION et al., Plaintiff and Appellant, v. Edmond W. RENFRO et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 403

505 P.2d 403

161 Mont. 251

The STATE HIGHWAY COMMISSION et al., Plaintiff and Appellant, v. Edmond W. RENFRO et al., Defendants and Respondents.

No. 12172.

Supreme Court of Montana.

Jan. 19, 1973.

Rehearing Denied Feb. 1, 1973.

Daniel J. Sullivan (argued), Helena, Donald A. Douglas, Helena, for plaintiff and appellant.

Corette, Smith & Dean, Butte, Kendrick Smith (argued), Butte, for defendants and respondents.

DALY, Justice.

This is an appeal from a judgment for the defendants on a jury verdict in the district court of Beaverhead County in a condemnation proceeding brought by the state highway commission. The appeal questions only the award of $86,000 for depreciation in market value of the remainder of defendants' land by reason of the taking and construction of the highway. No question is raised by the highway commission in this appeal to the award of $29,000 as the market value of defendants' land actally taken for the highway right of way.

From the testimony at trial, it appears the ranch property located in Beaverhead County near Red Rock, Montana, consisted of three separate tracts of land which were not physically adjoining, but which were connected by the Bell Canyon road. The total acreage of the ranch, including deeded and leased land, was approximately 3,934 acres. Two of the tracts consist of deeded land, together with state lease and federal range land. The third tract contains no deeded land, but consists entirely of state lease and federal range land. The largest tract contains about 3,294 acres and could be considered the 'home place.' This is the tract through which the interstate highway will run. The distance from the home place to the next tract is about two miles west, and the third tract is about 1.5 miles west of the second tract. The two smaller noncontiguous tracts were used two months out of the year as summer range.

For convenience in this opinion, we will hereinafter refer to the parties as landowners and Commission, and the land parcels as #1 for the home place, #2 for the first tract west, and #3 for the second tract west, as portrayed on the map furnished the Court.

The highway right of way transverses parcel #1 in such a manner as to separate the unit into two parcels with no access for six and one-half miles and the only passage from one parcel to the other is through an eight foot drain pipe at Bell Canyon under the highway right of way. Three witnesses and the landowners testified that cattle would not go through this drain pipe. This testimony was rebutted and is in conflict. The highway construction also buried an irrigation ditch and there is no provision for bringing water from the source east of the highway to the lands on the west.

The landowners claimed the construction of the highway right of way through the ranch would depreciate the value of the ranch by an amount between $90,000 and $116,000. This reduction in value would be due to a claimed decrease of between 87 and 117 'animal units' to the ranch, which could originally support about 400 animal units. This reduction would be due in part to the impracticability of irrigation and general inaccessibility of that portion of tract #1 lying to the east of the highway right of way. There was additional loss claimed due to a change in the character of some land from hay to grazing, resulting from construction. The landowners produced several witnesses who testified to damage to the remainder in parcel #1 in excess of the jury's award.

The landowners further produced evidence that tract #2 and tract #3 which are noncontiguous to each other and to tract #1, are so inseparably connected in use that taking from #1 must necessarily injure #2 and #3, as they operate as one integral unit. The court permitted testimony concerning damage to tracts #2 and #3. The Commission's appraiser did not consider these tracts in his appraisal.

The Commission presents five issues for review. The first four issues are consolidated into one for discussion and the basic question is-what comprises the remainder of the land, subject to depreciation, by reason of its severance from the part taken? Or. what constitutes the term 'a larger parcel' within the meaning of section 93-9912(2), R.C.M.1947? The question raised in issue five is-may a jury consider testimony for damage awards for 'inconvenience', and was there sufficient competent evidence to support the jury award?

Section 93-9912(2), R.C.M.1947, as it applies here reads:

'If the property sought to be appropriated constitutes only a part of a larger parcel, the depreciation in value which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvements in the manner proposed by the plaintiff.' (Emphasis supplied.)

The Commission contends this statute does not provide for the inclusion of any noncontiguous remainder land. It cites four Montana cases in support of its position which the trial court used in allowing the jury to consider depreciation of the two noncontiguous parcels #2 and #3, in addition to #1, in arriving at an award for depreciation. The four cases are: Alexander v. State Highway Comm., 142 Mont. 93, 381 P.2d 780; State Highway Comm. v. Robertson & Blossom, 151 Mont. 205, 219, 441 P.2d 181; Lewis & Clark County v. Nett, 81 Mont. 261, 266, 263 P. 418; and State et al. v. Bradshaw Land & Livestock Co., 99 Mont. 95, 106, 43 P.2d 674. A brief examination of these cases is in order.

In Alexander, the issue concerned an award for cement batching plant equipment purchased by the state in an eminent domain proceeding. On appeal it was hold the award was excessive because it was based on testimony of the owner as to value of equipment not actually found in the plant. Here, the issue concerns an award for depreciation to a ranch operation, due to a reduction in the number of animal units the ranch is capable of supporting.

In Robertson & Blossom, the Court stated:

'To determine what is 'the remainder' so as to determine what constitutes the unit of property affected, there are generally three tests: (1) same ownership, (2) contiguous, (3) unity of use. Here the property was contiguous and no issue is made. The appellant urges that since Robertson and the Corporation were two distinct owners, the instruction given was improper. This is correct.'

The issue in Robertson & Blossom was unity of ownership. The issue in the instant case is what constitutes 'the remainder'-only the tract of land from which the right of way was actually taken, or all of the noncontiguous land which was actually put to the same use by the same landowner? It should be noted that reference to a 'general' test or requirement of contiguity in Robertson & Blossom was dicta, since it was outside the issue of the case. Consequently, the fact that this general requirement was mentioned and no exceptions were memtioned does not mean the Court established contiguity as an absolute requirement and recognized no exceptions.

In Nett, the Court stated:

'The measure of damages in a proceeding for the condemnation of land for a public highway, under our statute and similar enactments, is the fair market value of the land sought to be condemned with the depreciation of such value of the land from which the strip is to be taken, less allowable deductions for benefits proven * * * which values are to be determined as of the date of the commencement of the proceeding.'

The issue in Nett was whether damages could be awarded to compensate the future cost of maintaining fences. The issue in the instant case is-what constitutes 'the land from which the strip is to be taken'?

Finally, we quote from Bradshaw Land & Livestock Co.:

'The theory of defendant cannot be upheld, unless it may be said that all of the lands owned by defendant were a part of the larger parcel from which the right of way was taken.

'In the case of State v. Hoblitt, 87 Mont. 403, 288 P. 181, 183, it was said: 'Ordinarily damages may be awarded only for injury done to the particular lot or tract of land from which the right of way strip is taken, and the above rule is applied in...