State v. Heltborg
| Decision Date | 08 March 1962 |
| Docket Number | No. 10323,10323 |
| 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. Anna E. HELTBORG, a widow; William P. Heltborg and Louise Jean Heltborg, husband and wife; Mary E. Christofferson, a widow; Rupert D. Christofferson and Flossie Christofferson, husband and wife; Julian B. Christofferson and Katarina Christofferson, husband and wife; Mildred Blanche Christofferson Wickham Darby Tappett, a married woman; Marian Ruth Christofferson Johnson, a married woman; Edward Christofferson, a single man; Alma Christofferson, a single man; William Mosier; Mable Hoskyn, a widow; Gladys W. K. Smith Hollywood, a married woman; Cliff Benson; Federal Land Bank of Spokane, a Corporation, and the United States National Bank of Deer Lodge, Montana, Defendants and Respondents. |
| Court | Montana Supreme Court |
Clayton R. Herron, Helena, Wm. R. Taylor (argued orally), Deer Lodge, for appellants.
Keeley, McElwain & Ryan, Joseph A. McElwain (argued orally), Deer Lodge, for respondents.
This is an appeal from a judgment entered pursuant to five verdicts returned by a jury in an action by the State Highway Commission acquiring right of way through four adjoining ranch properties. The defendants were the four owners and one lessee of the ranches.
Commissioner awards were made on each parcel, but the State, being dissatisfied, sought a jury trial on the amount of the awards. The amounts of the Commissioner awards are substantially the same as the amounts of the jury awards.
One parcel of right of way through the Hoskyn ranch was twenty-five acres of hay land with an award of $27,000. The Hoskyn ranch was 662 acres of which 320 acres is irrigated meadow.
One parcel through the Ed Christofferson ranch was 13.34 acres of hay land with an award of $15,000. This ranch was 2,236 acres of which 160 acres is irrigated meadow.
One parcel through the Mary Christofferson ranch was 25.16 acres of hay land with an award of $25,000. This ranch was 1,400 acres of which 425 acres is irrigated meadow.
One parcel through the Heltborg ranch was 13.70 acres with an award of $16,000. This ranch was 1,130 acres of which 200 acres is irrigated meadow.
Benson, a lessee of the Hoskyn lands, was granted an award of $1,709.35.
The Commission filed its complaint against all the defendants and trial was had as one trial. Five separate verdicts were returned with one judgment entered after denying a motion for a new trial. More details of fact will be set forth in the discussion following.
The State Highway Commission appealed from the judgment. The claimed errors relied upon by the appellant are as follows:
1. The court erred in permitting the witness Saunderson to testify to severance damage, or damage to the balance of the unit as to each of the properties; that this claimed error resulted in the jury considering values based on severance damages when in fact there were no severance damages.
2. The court erred in submitting verdicts to the jury by which damages were fixed in one sum and without separately stating the amount of damage for the taking and the damage to the remainder.
3. The court erred in submitting a verdict permitting the jury to award damages to the lessee Benson.
4. The court erred in awarding expert witness fees as part of the cost bill.
On what we have shown as claimed error number one, the appellant urges that it was prejudicial error to permit witnesses to testify as to 'severance damage', to instruct on severance damages and to permit the jury to award damages on that basis. The motion of appellants' counsel expresses the thought in this regard as follows:
'Mr. Taylor: The State of Montana, now at the conclusion of the defendants' testimony, with the possible exception of the witness Hibbard moves the court that the question of severance damage be taken from the jury, on the ground and for the reason that the testimony of all of the witnesses who have testified establishes that none of the parcels of property involved in this action are balanced units, and there is not severance damage to the property and that the values involved are to be considered by the jury as only the actual market value of the lands being taken for highway purposes.'
The ranches involved are all what are termed small family size units suitable for stock raising. Acreages involved have been previously set out. Throughout the testimony it appeared that the operating costs of the units would not be materially lessened by having fewer acres. It was also shown that there were not lands available as replacement.
R.C.M.1947, Sec. 93-9913, reads in part:
R.C.M.1947, Sec. 93-9912, subds. 2 and 5, provides:
'2. If the property sought to be appropriated constitutes only a part of a larger parcel, the damages 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. * * *
This court has discussed damages for partial taking and decrease in value to the remainder under the above statutes in State v. Hoblitt, 87 Mont. 403, 408, 288 P. 181, 183, as follows:
'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 ascertaining the award to be made by a determination of the value of the acreage taken, and the depreciation in value of the remainder of the particular tract, regardless of what other lands the owner may possess (sec. 9944, Rev.Codes 1921, [now R.C.M.1947, Sec. 93-9912]; Lewis and Clark County v. Nett, 81 Mont. 261, 263 P. 418), but, even where two tracts are separated by a highway or watercourse, or, as here, by a railway, if they are used jointly by the owner in a single enterprise and the whole plant is depreciated in value by the proposed improvement, the direct damages suffered may be compensated.' (See also State et al. v. Bradshaw Land & Livestock Co., 99 Mont. 95, 43 P.2d 674; Montana R. R. Co. v. Freeser, 29 Mont. 210, 74 P. 407.)
And, in Lewis and Clark County v. Nett, cited in the Hoblitt case, supra, it was said at page 267 of 81 Mont., p. 420 of 263 P.:
And, in the Nett case 81 Mont. at page 266, 263 P. at page 420, it is said:
The testimony of the various witnesses for both the landowners and the State, who explained their method of valuation, used the same general approach in determining the loss in market value. The approach was labeled the 'capitalization of income' approach. That income could be used as a basis for arriving at market value was discussed in State v. Peterson, 134 Mont. 52, 63, 328 P.2d 617.
The various witnesses testified in amounts as follows:
The verdict fixed the damage to the Hoskyn property at $27,000. The following witnesses testified on behalf of the defendants and fixed the damage in the amounts stated: Mont H. Saunderson $29,000; Mel Beck $28,020; Don Tavenner $23,600; Frank Dougherty $27,000; and Henry Hibbard $10,000. The witnesses for the State and the amounts fixed by them as damages were: Ivan Shaw $6,793, and Jack Lorenz $7,667.10.
The verdict fixed the damage to the Edward Christofferson property in the sum of $15,000. The following witnesses testified for the defendants and fixed the damage in the amounts stated: Mont H. Saunderson $16,000; Mel Beck $19,800; Don Tavenner $16,000; and Frank Dougherty $15,000. The following witnesses testified for the State and fixed the damage as follows: Ivan Shaw $4,472 and Jack Lorenz $4,201.50. Henry Hibbard testified for the State relative to...
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