State v. Bradshaw Land & Livestock Co.

• Decision Date: 23 February 1935
• Docket Number: 7328.
• Citation: 43 P.2d 674,99 Mont. 95
• Parties: STATE et al. v. BRADSHAW LAND & LIVESTOCK CO. et al.
• Court: Montana Supreme Court

43 P.2d 674

99 Mont. 95

STATE et al. v. BRADSHAW LAND & LIVESTOCK CO. et al.

No. 7328.

Supreme Court of Montana

February 23, 1935

Appeal from District Court, Custer County; S.D. McKinnon, Judge.

Condemnation proceeding by the State and others against the Bradshaw Land & Livestock Company, a corporation, and the Federal Land Bank of Spokane, a corporation, wherein second-named defendant was eliminated from proceeding. From a judgment, plaintiffs appeal, and first-named defendant moves to dismiss the appeal.

Motion to dismiss appeal denied, and judgment reversed and remanded with directions.

Raymond T. Nagle, Atty. Gen., John W. Bonner, Sp. Asst. Atty. Gen and Rudolph Nelstead, of Miles City, for appellants.

P. F Leonard, of Miles City, for respondents.

S. C Ford, of Helena, amicus curiae.

ANDERSON Justice.

The plaintiffs, state of Montana and state highway commission, brought this action to condemn a right of way over certain lands and premises owned by the defendant Bradshaw Land & Livestock Company located in Custer county, Mont., and mortgaged to the Federal Land Bank of Spokane, for highway purposes. The land bank has been eliminated as a party defendant.

The right of way sought to be condemned by plaintiffs traverses defendant company's land for approximately 6.25 miles. The acreage in the entire right of way is 89.86 acres. Approximately 4 acres thereof were theretofore conveyed to Custer county as a right of way for a county road. The course of the right of way is along the valley of Locate creek. This is a narrow valley with hills rising on either side.

The defendant live stock company is owned by the Bradshaw family, who have for many years operated a cattle ranch in that location. The buildings are all located in the valley of Locate creek. Lands are owned by the company on both sides of the creek and right of way. In the valley of the creek are found the company's meadow lands on which hay is produced to carry on the operations of the company. The company's lands lying outside the valley of Locate creek are all grazing in character.

The particular tract across which the right of way passes is in excess of 9,000 acres of contiguous land. The company owns altogether in this territory in excess of 18,000 acres, and has contracted to purchase in excess of 3,000 acres of additional lands over which it enjoys the right of possession. The lands owned by it, but not contiguous to the tract across which the right of way passes, are in various tracts noncontiguous to each other, of various areas. In addition, the company has leased other lands within the area used in the operation of its business. The major portion of all the lands owned, held under contract, and leased is inclosed with a common fence. Within this fence are found lands belonging to other individuals, corporations, and the United States government. In order to inclose all of these lands under one fence, the fencing is erected across the lands of third parties, in some instances with their consent and in others with their acquiescence, and in still others without any apparent protest on the part of the owners. Some of the lands within this inclosure belonging to third parties are fenced out of the inclosure, while others, similarly owned, are used by the company. The acreage included within the right of way is classified approximately as follows: 2 acres of meadow land, 8 acres of plow land, and 75 acres of grazing land.

Following the commencement of this action, commissioners were appointed to assess the damages, whose report was set aside. New commissioners were then appointed, and they awarded the defendant $12,500 as damages. Plaintiffs appealed from the award to the district court. A jury trial was had, and by its verdict it was determined that the value of the land actually taken was the sum of $853.21; that the damages to the larger parcel of land from which the right of way was taken amount to $12,902; that the benefits to the lands from which the right of way was taken are the sum of $1,500; and that the total damages and compensation to which defendant was entitled was the sum of $12,255.21. Judgment was rendered on this verdict on December 1, 1933. Thereafter, pursuant to notice and hearing, an amended judgment was entered on December 15, 1933.

Prior to the trial plaintiffs had deposited in the district court the amount of the award of the commissioners and secured an order of possession. Following the trial an additional sum was deposited by plaintiffs with the clerk of the court in order to make the total deposit conform to the amount of the amended judgment. On January 11, 1934, the defendant accepted the fund deposited with the clerk of court for its benefit, and formally satisfied the judgment of record. On February 8, 1934, a final order of condemnation was entered and thereafter recorded in the office of the county clerk. On May 11, 1934, plaintiffs gave notice of their appeal to this court from the amended judgment bearing date December 15, 1933, and from the whole of the findings and judgment, and from each and every part thereof. An entry was made in the minutes of the court on December 5, 1933, extending the time within which to prepare, serve, and file a bill of exceptions for sixty days in addition to the time provided by law. Further extensions of time were thereafter allowed upon a showing by affidavits. Eventually, within the time so extended, a bill of exceptions was settled and filed.

Respondent has moved to dismiss this appeal, upon the ground that plaintiffs have secured possession of and title to the right of way. Defendant (respondent) has accepted the compensation and satisfied the judgment. It is argued in support of the motion that in this state of the record no appeal may be prosecuted to this court, and that the plaintiffs may not receive and accept the fruits of the judgment, and at the same time attempt to set it aside. It is urged that the rule of this court, announced in the cases of In re Black's Estate, 32 Mont. 51, 79 P. 554, and Richli v. Missoula T. & S. Bank, 54 Mont. 127, 168 P. 41, is controlling here. Neither of these cases, however, had to do with proceedings in eminent domain.

Condemnation proceedings are special proceedings provided by statute. State ex rel. Davis v. District Court, 29 Mont. 153, 74 P. 200. Resort must, therefore, be had to the statutes for the solution of this question. The applicable portion of section 9937, Rev. Codes 1921, provides that "the plaintiff or defendant, or any party interested in the proceedings, can appeal to the supreme court from any finding or judgment made or rendered under this chapter, as in other cases. Such appeal does not stay any further proceedings under this chapter." The pertinent portion of section 9952 reads as follows: "At any time after the report and assessment of damages of the commissioners have been made and filed in the court, and either before or after appeal from such assessment, or from any other order or judgment in the proceedings, the court or any judge thereof at chambers, upon application of the plaintiff, shall have power to make an order that upon payment into court for the defendant entitled thereto of the amount of damages assessed, either by the commissioners or by the jury, as the case may be, the plaintiff be authorized, if already in possession of the property of such defendant sought to be appropriated, to continue in such possession; or, if not in possession, that the plaintiff be authorized to take possession of such property and use and possess the same during the pendency and until the final conclusion of the proceedings and litigation, and that all actions and proceedings against the plaintiff on account thereof be stayed until such time. *** The amount assessed as damages by the commissioners, or by the jury on appeal, as the case may be, shall be taken and considered, for the purposes of this section, until reassessed or changed in the further proceedings, as just compensation for the property appropriated; but the plaintiff, by payment into court of the amount assessed, or by giving security as above provided, shall not be thereby prevented or precluded from appealing from such assessment, but may appeal in the same manner and with the same effect as if no money had been deposited or security given; and in all cases where the plaintiff deposits the amount of the assessment and continues in possession, or takes possession of the property, as herein provided, the defendant entitled thereto, if there be no dispute as to the ownership of the property, may at any time demand and receive from the court the money so deposited, and shall not by such demand or receipt be barred or concluded from his right of appeal from such assessment, but may, notwithstanding, take and prosecute his appeal from such assessment; provided, that if the amount of such assessment is finally reduced on appeal by either party, such defendant who has received the amount of the assessment deposited shall be liable to the plaintiff for any excess of the amount so received by him over the amount finally assessed, with legal interest on such excess from the time such defendant received the money deposited, and the same may be recovered by action; and, provided, further, that upon any appeal from assessment of damages by the commissioners to a jury," etc.

By sections 9950 and 9951 it is declared:

"9950. Payment may be made to the defendants entitled thereto, or the money may be deposited in court for the defendants, and be distributed to those entitled thereto. If the money be not so paid or deposited, the defendants may have execution as in civil cases; and if the money cannot be made on execution, the court or judge, upon a showing to that

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