No. 13022 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 7 5 

THE MONTANA POWER COMPANY, a 

Montana Corporation, 

Plaintiff and Appellant, 

-vs - 

SAMUEL WOLFE, LYNN WOLFE et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Edward T. Dussault, Judge presiding. 

Counsel of Record: 

For Appellant : 

Garlington, Lohn and Robinson, Missoula, Montana 

James C. Garlington argued, Missoula, Montana 

For Respondents: 

McGarvey and Moore, Kalispell, Montana 

Dale McGarvey argued, Kalispell, Montana 

Goldman, McChesney and Eck, Missoula, Montana 

Lawrence Eck argued, Mis soula, Montana 

Submitted: December 9, 1975 

Decided : FFB .r.p 

'LLQ-' ~ 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

In this eminent domain proceeding plaintiff Montana 

Power Company appeals the judgment entered on a jury's award of 

compensation for a strip of defendant's land condemned as an 

easement for plaintiff's 161-KV power transmission line. We 

affirm the judgment. 

The easement condemned is a strip of land 80 feet wide, 

stretching 11,167 feet along the upper bench portion of defendant's 

5200 acre ranch located on the east side of the Bitterroot valley, 

east of Stevensville in Ravalli County. This strip contains an 

area of 20.5 acres. The remainder of defendant's property subject to depreciation in value resulting from this taking constitutes 319.5 acres. Eleven pole structures of the plaintiff 

utility's transmission line between its Missoula No. 4 substation 

and Hamilton Heights occupy the easement. The pole structures are 

approximately 58 feet tall. There are 9 double pole structures 

with 2 triple pole structures in this easement. The structures 

are visible for a distance of about 5 miles, and placed on knolls 

or promontories in defendant's timbered pasture and on a small 

portion of his cultivated land. 

~efendant's ranch as a whole contained a small amount of 

irrigated hay and pasture land, some dry land crop acreage, and 

a large amount of dry land grazing, both open and timbered. 

Plaintiff utility commenced these eminent domain proceedings 

in the district court of the fourth judicial district pursuant to 

the provisions of Chapter 99, Title 93, R.C.M. 1947. Both parties 

appealed the commissioners' award for the easement and depreciation 

in value of the remainder to the district court. 

Following a jury trial before Hon. Edward Dussault, 

district judge, a judgment of $15,382.50 for the value of the 20.5 

acre easement and $23,961.75 for depreciation insvalue to the 
319.5 acre remainder was entered for defendant, pursuant to the 

verdict . 

plaintiff's motion for a new trial was denied by the 

district court and this appeal is taken from the judgment and the 

order denying a new trial. 

Two issues are presented on appeal: 

1. Whether sales comparable in size, but not in shape, 

to the land taken should have been admitted into evidence? 

2. Whether the jury committed reversible error by not 

following court's Instruction No. 19 when it awarded $750 per acre 

for the easement? 

First, considering plaintiff's objection to the evidence 

of comparable sales, we note this Court has approved the use of 

such evidence in eminent domain proceedings. State Highway 

Commission v. Jacobs, 150 Mont. 322, 328, 435 P.2d 274; State Highway 

Commi-ssion v. Tubbs, 147 Mont. 296, 303, 411 P.2d 739. Further, 

when the value of another piece of property is testified to for 

the purpose of showing the basis for an expert's opinion, as was 

done here, the requirement of similarity is not so strict. State 

Highway Commission v. Jacobs, supra. 

Essentially plaintiff argues that the differences between 

the 80 foot easement and the residential tract sales testified to 

by defendant's expert are so great as to make the sales not judicially 

comparable. Yet it is well established that appellate review of 

comparable sale evidence admitted by the district court is limited. 

5 Nichols on Eminent Domain, $21.31, pp. 21-54 to 21-59, states: 

"Similarity does not mean identical, but having a 

resemblance. Obviously, no two properties can be 

exactly alike, and no general rule can be laid down 

regarding the degree of similarity that must exist 

to make such evidence admissible. It must necessarily 

vary with the circumstances of each particular case. 

Whether the properties are sufficiently similar to have 

some bearing on the value under consideration, and to be 

of any aid to the jury, must necessarily rest largely 

in the sound discretion of the trial court, which will 

not be interfered with unless abused. The exact limits, 
either of similarity or difference, or of nearness 

or remoteness in point of time, is difficult, if 

not impossible, to prescribe by any arbitrary rule, 

but must to a large extent depend on the location and 

the character of the property and the circumstances 

of the case. It is to be considered with reference 

to the light thrown on the issue, and not as a mere 

method of raising a legal puzzle." 

The background of one Roy ~odenberger's testimony on 

comparable sales and his opinion on value can be briefly summarized. 

The area of the Wolfe ranch on Burnt Fork Creek, about eight miles 

out of Stevensville had, in 1972, an attraction for rural homesites. Its highest and best use was for that purpose. Rodenberger 

determined that certain sales of small homesite tracts were of 

value in determining the ultimate value of the land taken here 

and the damage to the remainder. In this connection he was carefully examined, both on direct and cross. A synopsis of his 

thinking is probably best expressed in this question and answer 

on cross-examination: 

"Q. And your theory was that if the transactions 

that are in your list number one were indicative 

of a twenty acre sale, they would be indicative of 

the value of the land within the easement? 

"A. Yes, they would be indicative. However, the lands 

that are in these sales are regular tracts of land in a 

planned manner, and there is no way to actually compare 

a regular planned tract of land that may be oblong or 

square or even triangular on the edge of a ranch, to an 

eighty foot ribbon two miles through the center of the 

ranch. So, during the whole time of comparison I tried 

to make these tracts regular in this ranch taking, and 

the only way you can do it is take the forty-acre tracts 

and say: All right, what are they doing to this tract? 

They are taking two and a third acres out of this tract, 

and it's kind of on the edge. The next forty-acre tract 

they might be going right through the middle of it as 

that overlay shows. Although it is indicative of the 

market, it isn't a true comparis6n because, I think, the 

fact that it is splitting a piece of property in a eightyfoot ribbon two miles long, which is definitely an irregular 

type shape tract, these comparisbns are conservative on 

the market on that type of a tract. 11 

Plaintiff was taking, besides the easement, the use of 

existing roadways and access by "reasonable means". It was clear 

that the quality of the land taken, the quantity, and the access 

easement, were being considered and that because of all the circumstances the easement value was substantially the same as the fee 
value, except for the grazing left. Mr. Rodenberger considered 

all of these matters. 

However, plaintiff condemnor contends that the requisite 

elements of comparability of land values do not exist where a 

20 acre fee homesite is likened to an easement strip 80 feet 

wide, and two miles long. That area alone cannot be a controlling 

consideration. We agree, but as shown by the foregoing quote of 

the appraiser Rodenberger, he did not literally do this. 

We cannot conclude that the sales introduced as a basis 

for the opinion of defendant's expert amounted to an abuse of 

discretion by the district court. These recent sales involved tracts 

of similar sizes and did shed some light on the value of defendant's 

land for residential development. Differences between these tracts 

and the easement were thoroughly developed on both direct and 

cross-examination. Given this, it was for the jury to determine 

the weight to be given the comparable sales and the expert's 

appraisal. United States v. 84.4 Acres of Land, Etc., 348 F.2d 117, 

119; Illnois Building Authority v. Dembinsky, 101 I11.App.2d 59, 

242 N.E.2d 67,69; Redevelopment Agency of Salt Lake City v. Mitsui 

Investment Inc., (Utah 1974), 522 P.2d 1370, 1373. We find no 

error. 

The second issue raised on appeal is based on district 

court's Instruction No. 19, which reads: 

"YOU are instructed that the lands being valued in 

this case for the purpose of determining just compensation may not be valued at one amount within the 

area of the easement and at a different amount in 

other similar areas of the same tract. Fhere the 

lands are all in one tract, they must be considered 

to ether, and their fair market value determined 

&hiiigly. " (Emphasis supplied. ) 

Plaintiff submits that the jury's award of $15,382.50 or 

$750 per acre for the 20.5 acre easement is contrary to this 

instruction. It is contended that since the highest value placed 

on the remainder was $500 per acre, application of this instruction required the jury to award not greater than $500 per acre for 
the easement taken. In other words, plaintiff contends that 

evidence of a lower value for the remainder controls the value 

of the easement. 

The jury here returned by the verdict two separate values, 

$15,382.50 for the easement taken; and $23,961.75 for damages to 

the remainder. The remainder was approximately 320 acres. 

Plaintiff then to reach its thesis that Instruction No. 19 was 

violated, argues since owner's witness Rodenberger testified that 

the land outside the corridor of the easement had a value of $300 

per acre; and the condemnor's witness Glasser testified that $500. 

per acre was a fair figure, that therefore, under the instruction 

literally read, there was only evidence to support a figure of a 

maximum of $500 per acre rather than $750 per acre as found by the 

jury. Rodenberger had testified to a figure of $1200 per acre for 

the land taken. We realize that to follow the argument and logic 

of the condemnor is difficult. Court's Instruction No. 19 cannot 

be read out of context in a literal manner. It must be read and 

understood in the light of the case. 

Instruction No. 19 commands only that the lands be 

I I considered together and their fair market value determined 

I I accordingly. It does not require a lower appraisal for one area 

of a tract to control a higher appraisal for other areas of the 

same tract. The instruction simply requires the jury to arrive 

at one value for the lands in the tract. 

Instruction No. 15, states: 

I I You are instructed that just compensation should 

be arrived at by considering the following: 

"1. The value of the property sought to be 

condemned. 

"2. If the property sought to be condemned corstitutes only a part of a larger parcel, the. depreciation in value, if any, 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). 
Clearly this instruction contemplates jury consideration 

of evidence of the value of the easement as well as damage to the 

remainder. Earlier in this opinion we approved evidence of comparable sales upon which an expert's appraisal of $1200 per acre 

for the easement taken was based. It is not disputed that appraisals 

of the value of the remainder ranged from $300 to $500 per acre. 

Thus considering the lands together as required by the court's 

Instruction No. 19, the jury had a permissible range of values 

from $300 to $1200 per acre from which it could determine its award 

of just compensation. 

Presented with this range of values and following the 

instruction of the court, the jury selected the mean value of 

$750 per acre as the basis of its award. This value for the 

easement is obviously within the evidence available to the jury 

and thus not obviously and palpably out of proportion to just 

compensation requiring interference with the findings of the jury 

by this Court. State Highway Commission v. Jacobs, supra. 

Finding no prejudicial error in admission and use of 

comparable sales data and misapplication of the court's instructions, the judgment is affirmed. 

We Concur: f