State v. Bare, 10408

• Decision Date: 28 December 1962
• Docket Number: No. 10408,10408
• Citation: 377 P.2d 357,141 Mont. 288
• Parties: The STATE of Montana, State Highway Commission of the State of Montana, and Harry L. Burns, L. V. Swanson, Otis S. Waters, S. N. Halvorson, and Roy L. Sorrells, as Members of and Constituting the State Highway Commission of the State of Montana, Plaintiffs and Appellants, v. Tam BARE and Louise Bare, Husband and Wife, and Donald Bare, a Single Man, Defendants and Respondents.
• Court: Montana Supreme Court

Page 357

377 P.2d 357

141 Mont. 288

The STATE of Montana, State Highway Commission of the State of Montana, and Harry L. Burns, L. V. Swanson, Otis S Waters, S. N. Halvorson, and Roy L. Sorrells, as Members of and Constituting the State Highway Commission of the State of Montana, Plaintiffs and Appellants, v. Tam BARE and Louise Bare, Husband and Wife, and Donald Bare a Single Man, Defendants and Respondents.

No. 10408.

Supreme Court of Montana.

Submitted Nov. 20, 1962.

Decided Dec. 28, 1962.

Forrest H. Anderson, Atty. Gen., Daniel J. Sullivan (argued orally), Helena, for appellants.

Jack D. Shanstrom, David B. Fitzgerald (argued orally), Livingston, for respondents.

CASTLES, Justice.

This is an appeal from a judgment entered on a jury verdict in a condemnation action brought by the State, appellant here, to acquire Interstate Highway right-of-way. The defendants, respondents here, are the owners and operators of a 280 acre dairy farm in Park County.

Complaint seeking condemnation was filed. Necessity for the taking was found by the district court, and commissioners to appraise the property were appointed. The commissioners rendered their report, finding the value of the land and improvements taken to be $7,078 and the severance damages to the remainder at $33,105 for a total award of $40,183.

From the award the State appealed. Trial was had before a jury. The jury awarded $15,948.90 for the land and improvements taken and $26,297.50 for severance damages to the portion not taken for a total judgment of $42,246.40.

The Bare dairy farm consisted of 280 acres. It had been operated as a dairy farm for twenty-five years. It had somewhat over 100 acres of irrigated and subirrigated hay land and the balance was in dry land pasture. Bares had about 35 head of cattle and were licensed to milk 20 head. They had about 135 customers for their milk and sold $40 to $50 worth of milk a day. They raised their own hay and pasture and bought feed grain.

The Interstate Highway right-of-way runs almost through the middle of the farm, dividing it into two main parts and segregating another smaller part. The right-of-way went through several improvements, a small house, a root cellar, two wells, and covered several springs. The meandering creek channel was moved and straightened. Any practical access from one part to the other was cut off. All witnesses agreed that so far as dairying was concerned, Bares were out of business. The taking consisted of 30.81 acres of the heart of the farm.

The landowners testified and a real estate broker testified as to value as will be later discussed.

Following the testimony of these witnesses, a Mr. Armstrong, who had served as a commissioner, was called to testify under circumstances related later.

The specifications of error, three in number, resolve themselves into two parts:

(1) Was the witness Armstrong's testimony competent under the circumstances? and

(2) Was there competent evidence sufficient to justify the verdict of the jury?

As to the witness Armstrong: His qualifications were brought out. He had been a farm-machinery salesman, clerk for farm auction sales and had a familiarity with land values. Then he was asked on direct:

'Q. Now Mr. Armstrong, were you appointed by the Court as a Commissioner to appraise the value of the property being condemned by the State of Montana from Tam and Donald Bare? A. Yes.'

Then he testified with particularity as to details. At one point he said:

'Q. Now Mr. Armstrong, are you familiar with the path that the U. S. Interstate No. 90 takes as it extends through the Bare brothers' property? A. Yes, after I got on this threeman team of appraisals we went over the Bare place three times together. * * *' At another point:

'Q. Well, in your knowledge of dairy cows and that, would it be possible for the Bare brothers to take the cattle from the dairy barn to the pasture on the north side of the proposed Interstate 90? A. No, May I quote you what was said in the hearing we had the----

'THE COURT: Mr. Armstrong, no, Your're testifying now as though you had----

'Mr. Sullivan: I'm going to object to all of this testimony, your Honor, on the grounds that there has been no sufficient foundation laid to call this man to testify as an appraiser.

'THE COURT: What I'm getting at is that you can't testify to what is known as hearsay evidence, what somebody else said. It has got to be your own knowledge. The objection just interposed is overruled.'

Again and again the witness Armstrong referred to the three man commission appointed to appraise:

'Q. And that is your own personal appraisal? A. Yes.

'Mr. Sullivan: I would like to voir dire the witness if I may, your Honor?

'THE COURT: Okay.

'BY MR. SULLIVAN: * * *

'Q. Was that appraisal--were you appraising this as a commissioner? A. We were sworn in, the three of us, at the same time by Judge Allen. We went to work and we went out together, we walked over each tract of land separately and made our notes on our own, separately from each other, made * * *.

'Q. I want to know if you made an appraisal separate and apart from the time that you were working as a commissioner in this hearing? A. (To Court) He wants to know what now?

'Q. If you made another appraisal than an appraisal as a commissioner? A. We went out together as a group of three. We each took out own notes.

'Q. Did you make an appraisal separate and apart from that time? A. We each made our own appraisal, and then at the end when we got all through we got together----

'THE COURT: That's enough. This is your own appraisal? A. My own appraisal. Is that what you want to know?

'Q. Was it made in conjunction with the commission hearing held on this matter last November?

'MR. FITZGERALD: That's objected to, your Honor, as completely immaterial.

'THE COURT: Sustained.

'Q. Were you working as a commissioner for the State of Montana when you made that appraisal? A. Yes, sir.

'MR. FITZGERALD: Same objection, your Honor, and on the additional ground it calls for a conclusion, and ask that the answer be stricken.

'THE COURT: The objection is sustained and the answer is stricken, and the jury are, as before, instructed to disregard any question, the implication of the question, and any answer that might have been made.

'MR. SULLIVAN: I am going to object to the introduction of any appraisal by this man, your Honor, on the grounds that he hasn't made a separate and independent appraisal, and that this evidence is incompetent, and that it constitutes actually just evidence that went to make up in effect, a jury verdict.

'THE COURT: Overruled.

'MR. SULLIVAN: And I'm going to object to it upon the grounds and for the reasons that obviously I can't cross-examine him because we don't have the record that was introduced or the evidence that was introduced at the commissioner hearing upon which he based his appraisal.

'THE COURT: Overruled.'

Then Armstrong was allowed to testify as to values. He finally summed it up:

'The land taken plus the house, sheds, wells and concrete foundation that are being absolutely ruined was $14,183.35. Now the total damages for severance and completely cutting off and doing away with their diary ranch was $50,000, so it totaled $60,183.35. Now, that's the one that I made.'

On cross-examination, the State brought out that Armstrong didn't value the farm before the taking nor place a value on the farm after the taking.

Thus, one of the commissioners was allowed to give testimony. His figure of $60,183.35 was not the commission's award, which was $40,183. While the actual commission's report was not brought out, the witness Armstrong was shown to be a commissioner and repeatedly testified about what the commission did and the reasons for their results. While he gave a value for his appraisal different than that of the commission award, by his testimony his appraisal purported to be the commission award.

The State was faced with the dilemma of trying to impeach the witness by using the commission award and thereby getting the whole commission award before the jury. We hold this to be reversible error. Respondent argues that in Yellowstone Park R. R. Co. v. Bridger Coal Co., 34 Mont. 545, 561, 87 P. 963, 968, this court approved the use of commissioners testifying as witnesses so long as the award itself was not testified to in the following language:

'Criticism is made of paragraph 24 of the charge, because the court therein told the jury that they must not consider the award theretofore made by the commissioners, but should confine themselves exclusively to the testimony of the witnesses examined at the hearing. This was clearly correct for the reason that the award was not introduced in evidence. The only reference to it was made during the cross-examination of two of the commissioners who were sworn as witnesses at the trial. Being asked as to the amounts fixed by them in their award, they stated amounts which agreed with those fixed by them at the trial. The trial was de novo as to the damages. The award of the commissioners could not be competent for any purpose, except to impeach the statements of those commissioners who were sworn as witnesses, in case their opinions expressed at the trial differed from their findings. The caution contained in this paragraph was perhaps not necessary, but it is not erroneous.'

Respondent also argues that in any event the State brought on the matter by further inquiry, as previously quoted, and that therefore one cannot complain of errors which he has permitted or invited. McDonald v. McNinch, 63 Mont. 308, 206 P. 1096. It is observed that on direct examination it was made clear that Armstrong had been a commissioner; and his appraisal, even though his own, had been a part of the commission proceedings. In the Yellowstone R. R. Co. case, supra, it was not an issue as to the competency of the witness to testify at all, the issue was as to an instruction after he had testified. We...