No. 13022 INTHE SUPREME COURT OF THE STATE OF MONTANA 19

### 75

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 theFourth 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. JusticeWesley Castles delivered the Opinion of the Court.

In this eminent domain proceeding plaintiff Montana Power Company appeals thejudgment entered on ajury's award of compensation for a stripof defendant's land condemned asan easement for plaintiff's 161-KV power transmission line. We affirm thejudgment. The easement condemned 

### is a stripof land 80 feetwide, stretching 11,167 feet along the upper bench portion of defendant's 5200 acreranch located on the east side of the Bitterroot valley, east of Stevensville inRavalli County. This stripcontains an

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

### itsMissoula No. 

### 4 substation and Hamilton Heights occupy the easement. The pole structures are approximately 58 feet tall. There are 9 double pole structures with 2triplepole 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 irrigatedhay and pasture land, some dry land crop acreage, and

a large amount of dry land grazing, both open and timbered. Plaintiff utilitycommenced these eminent domain proceedings in the district court of the fourthjudicial 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 invalue of theremainder to the district court. Following a jury trialbefore Hon. Edward Dussault, districtjudge, 

### a judgment of $15,382.50 for thevalue of the 20.5

acre easement and $23,961.75 fordepreciation insvalue to the319.5 acre remainder was entered for defendant, pursuant to the verdict

# . plaintiff's motion for a new trialwas denied by the district court and this appeal is taken from thejudgment 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 thejury committed reversible errorby not following court's InstructionNo. 19when 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 ineminent domain proceedings. StateHighway Commission v. Jacobs, 150Mont. 322, 328, 435 P.2d 274; StateHighway Commi-ssionv. Tubbs, 147 Mont. 296, 303, 411 P.2d 739. Further, when the value of another piece of property 

### istestified to for the purpose of showing the basis for an expert's opinion, aswas done here, the requirement of similarity isnot so strict. State Highway Commission v. Jacobs, supra. Essentially plaintiff argues that the differencesbetween the 80 foot easement and theresidential tract sales testified to by defendant's expert are so great as tomake the salesnotjudicially comparable. Yet it 

### iswell established that appellatereview of comparable sale evidence admitted by the districtcourt 

### 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 tomake such evidence admissible. It must necessarily vary with the circumstances of each particular case. Whether the properties are sufficientlysimilar tohave some bearing on the value under consideration, and tobe of any aid to thejury, must necessarily rest largely in the sound discretion of the trialcourt, which will notbe interfered with unless abused. The exact limits,either of similarity or difference, or of nearness or remoteness inpoint of time, is difficult, if not impossible, toprescribe 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 tobe considered with reference to the light thrown on the issue, and not asa mere method of raising a legal puzzle." The background of one Roy ~odenberger'stestimony on comparable sales and his opinion on value can be briefly summarized. The area of theWolfe ranch on Burnt Fork Creek, about eight miles out of Stevensville had, in 1972, an attraction for rural homesites. 

### Itshighest and best use was for that purpose. Rodenberger determined that certain sales of small homesite tractswere of value indetermining the ultimate value of the land taken here and the damage to the remainder. In this connection he was carefullyexamined, 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 theorywas that ifthe transactions that are inyour 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 inthese sales areregular tracts of land in a planned manner, and there 

### isno way toactually 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 thewhole time of comparison I tried tomake these tracts regular in this ranch taking, and the onlyway you can do it 

### is take the forty-acre tracts and say: Allright, what are they doing tothis 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 isindicative 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, theuse of existingroadways 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 allthe 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 existwhere a 20 acre feehomesite is likened to an easement strip 80 feet wide, and twomiles long. That area alone cannot be a controlling consideration. We agree,but as shownby 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 discretionby the district court. These recent sales involved tracts of similar sizes and did shed some light on the value of defendant's land for residentialdevelopment. Differencesbetween these tracts and the easementwere thoroughly developed on both direct and cross-examination. Given this, it was for the jury to determine theweight to be given the comparable sales and the expert's appraisal. United States v. 

### 84.4Acres of Land, Etc., 348 F.2d 117, 119; IllnoisBuilding Authority v. Dembinsky, 101 I11.App.2d 59, 242N.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 isbased 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 compensationmay not be valued at one amountwithin 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 remainderwas $500 per acre, application of this instruction required the jury to award not greater than $500per acre fortheeasement taken. In otherwords, plaintiff contends that evidence of a lower value for the remainder controls thevalue 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 theremainder. The remainder was approximately 320 acres. Plaintiff then toreach 

### its thesis that Instruction No. 19was 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 acrewas a fairfigure, that therefore, under the instruction literallyread, therewas only evidence to support a figure of a maximum of $500 per acrerather than $750 per acre as found by the jury. Rodenberger had testified toa figure of $1200 per acre for the land taken. We realize that to follow the argument and logic of the condemnor isdifficult. Court's Instruction No. 19 cannot be read out of context ina literal manner. It must be read and understood in the light of the case. Instruction No. 19commands only that the lands be

IIconsidered together and their fairmarket value determined

II accordingly. It does not require a lower appraisal for one area of a tract tocontrol a higher appraisal for other areas of the

same tract. The instruction simply requires thejury to arrive atone value for the lands in the tract. Instruction No. 15, states:

II

You are instructed that just compensation should be arrived atby considering the following: 

### "1. The value of the property sought tobe condemned. "2. If the property sought tobe condemned corstitutes only a part of a larger parcel, the.depreciation invalue, ifany, which willaccrue to the portion not sought tobe condemned, by reason of 

### its severance from the portion sought tobe condemned, and the construction of the improvements in themanner proposed by the Plaintiff. (Emphasis supplied).Clearly this instruction contemplatesjury consideration of evidence of the value of the easement aswell asdamage tothe remainder. Earlier in this opinionwe approved evidence of comparable salesupon which an expert's appraisal of $1200 per acre for the easement taken was based. It 

### isnot disputed that appraisals of the value of the remainder ranged from $300 to $500 per acre. Thus considering the lands together asrequired by the court's InstructionNo. 19, thejury had a permissible range of values from $300 to $1200 per acre fromwhich it could determine itsaward of just compensation. Presented with this range of values and following the instruction of the court, thejury selected the mean value of $750 per acre as thebasis of its award. This value for the easement 

### is obviouslywithin the evidence available to thejury and thus not obviously and palpably out of proportion tojust compensation requiring interferencewith the findings of thejury by this Court. StateHighway Commission v. Jacobs, supra. Finding no prejudicial error inadmission and use of comparable sales data and misapplication of the court's instructions, thejudgment 

### isaffirmed.



### We Concur: 

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