No. 12187 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

THE STATE OF MONTANA, ACTING BY AND THROUGH THE STATE HIGHWAY COMMISSION OF THE STATE OF MONTANA, Plaintiff and Appellant,

ROGER W. BENNETT and SANTINA BENNETT, Defendants and Respondents.

Appeal from: District Court of the Third Judicial District, Honorable Sid G. Stewart, Judge presiding. Counsel of Record: For Appellant: Daniel J. Sullivan and Leo J. Kottas, Jr. argued,

Highway Legal Department, Helena, Montana, For Respondents: Knight, Dahood, Mackay and McLean, Anaconda, Montana. Malcolm MacCalman argued, Deer Lodge, Montana.

Filed:

# rn7 .;- 

# **3?? Submitted: June 18, 1973 Decided :

### Mr. Justice Frank I. Haswell delivered the Opinion of the Court,

This 

### is a condemnation action by the StateHighway Commission involving a 2.68 acre tract of land with improvements, located four miles west of Garrison, Powell County, Montanz, Foll0b~ing jury trial in the thirdjudicial district court before the Hon, Sid G, Stewart, districtjudge, judgment was entered awarding the owners $60,000 for their property. From this judgment and denial of a motion for a new trial, the Stateappeals. The Stateof Montana, acting through the StateHighway Commission, seeks toacquire the land inquestion forhighway purposes. The property owners areRoger 

### W. Bennett and hiswife, Santina Bennett, Their property abuts U,S. Highway No. 10 along the north ri.ght-of-way boundary line. The property isknown in the area asThe Golden Spike. Located upon the property were rental cabins, storage sheds and

a service station, with home and shop combined, Bennett testifiedhisbusiness consisted of running the service station and selling and repairing used cars, trucks and tractors, At trial, the state's appraiser testified that the "highest and best use1'of the land was for rural homesites and fixed its market value at $25,650, based on the cost approach for the buildings and the market data approach for the land. Witnesses for the property owners testified that the "highest and best use" of the property was business or commercial. The property owner valued his property at $100,000 and an independent fee appraiser for 

### the 

### owners, using the capitalization of income approach, valued the property at$81,367.44. The jury returned a verdict for the property owners inthe amount of $60,000. Judgment was entered and the State appeals from that judgment. On appeal the Statepresents seven issues for review, The first three concern the admissibility of the owner's testimony as to the value of the property. Issues four through sixrelate tothe propriety of the capitalization of income approach used by the property owners' appraiser. Issue seven alleges error in the district court's limiting cross-examination by counsel for the State, In issues one through three the thrust of the state's argument isthat owner 

### en nett's valuation of hi.s property was not admissiblebecause no proper foundation was laid, The owner testified, over objection, toa figure of $100,000, as the value of hisproperty. The State, relying on Alexander 

### v. StateHighway Comm'n, 142Mont. 93, 110, 381 P.2d 780, contends the owner's testimony was not admissible. InAlexander this Court held:

ft* $-

# * that an owner, upon prima facie proof of ownership, shallbe qualified to estimate in

### a reasonable way the value of his property for the use towhich he has been putting it, Such owner 

### isnot qualified by virtue of ownership alone to testifyas tovalue for other purposes unless he possess, as any other witness as tovalue, Isome peculiar means of forming an intelligent and correct judgment as to the value of the property in question beyond what 

### ispresumed tobe possessed by men generally."' Here, the owner testified only as to the value of the property forpurposes towhich he had been using it, The Statecontends, ineffect, that the owner cannot statethe value of hisproperty for the purpose forwhich he was putting it when that use isnot, inthe state's opinion, the highest and best use, The property

owner presented a figure of $100,000 after foundationwas laid as tohis familiaritywith the general area, his purchase of the property and construction of the buildings, and his use of the property in sellinggasoline, oil, used cars and other vehicles

over a period of twenty years, With this background, it cannot be said that his valuation was either speculative or conjectural. The competence of 

### a witness togive an opinion on value of property 

### is generally in the discretion of the trialjudge. One who knows the real property inquestion and is familiar with the

uses towhich itmay be put, may testify as to itsmarket value. Such witnesses need not know of any sales orbe technical experts. StateHighway Comrn. v, Wilcox, 

### 155 Mont. 176, 468 P.2d 749; StateHighway Comm'n v. Barnes, 151Mont. 300, 443 P,2d 16; Statev. Peterson, 134Mont. 52, 328 P,2d 617. The property owner, whether generally familiar with such values ornot, ought tobe allowed to estimate 

### itsworth. The weight of his testimony 

### is for the jury. Alexander v. StateHighway Comm'n, supra; 

### 3 Wigmore, Evidence $ 716 (Chadbourn rev. 1970). The only restriction on the owner's testimony iswhen the nature of the answer 

### is so unreasonable as tobe speculative, conjectural, and contradictory that his answer should be stricken. Alexander v. StateHighway Comm'n, supra, Here, the owner's estimatewas not sounreasonable

or lacking in foundation that this Court may hold the district court abused 

### itsdiscretion, state's issues four through six aredirected atthe valuation fixed by the property owners' appraiser under the capitalization of income approach, The Statecontends that such an approach to valuation should not have been admitted because of insufficient evidence of the net income tocapitalize, It has been generally held that thebest method of arriving atmarket value 

### isrecent sales of comparable property, State Highway ~omm'nv, Bare, 141Mont. 288, 

### 377 P.2d 357. But where there areno comparable sales, evidence based upon revenue and valuation based inpart thereon iscompetent and admissible. StateHighway Comm'n v, Biastoch Meats, Inc,

## , 145 Mont. 261, 400 P.2d 274, In the instant case the purpose forwhich the propertywas used is indeed unique in the area, Here, we have a service station and repair shop in an area more typically used for ruralhomesites

or farm land, The property owners' appraiserused the capitalization method of valuation in determining that the property in question should be valued at $81,367.44. He arrived atthis figure by averaging the C owners' income tax returns for the past two years on income from the property. He then deducted from net profit the sum of $120 formaintenance and $4,800 as a fair amount attributable aswagesfor the owners, The balance of $4,884 was attributed to the value produced by the property in lieu of rent which when capitalized at sixpercent gave a value of $81,367.44. Weaknesses informulating this value go totheweight of the expert's testimony tobe evaluated by thejury, StateHighway Comm'n v. Wilcox, 155 Mont. 176, 468 P,2d 749; StateHighway Comfn v, Vaughan, 155 Mont. 277, 470 P.2d 967, Once proper foundation has been laid as tothewitness' expertisehe ghouldbe permitted togive his opinion using any of the accpted means of calculatingvalue, It 

### is thus incumbent upon the Statetobring out any weaknesses of his valuation upon cross-examination. The apprsiser's figures were based on more than conjecture and uncertainty and therefore can be distinguished from StateHighway Comm'n v, Bare, 141Mont. 288, 377 P,2d 357, relied upon by the State, Issue seven concerns the state's contention that itwas unduly limited in 

### its cross-examination. It is a general rule in this state that section 93-1901-7, R,C.M. 1947, permits a wide range for cross-examination. The right of cross-examination may not be unduly restricted and may extend not only to facts statedby thewitness in his direct examination, but to allother facts connected with them which tend toenlighten the jury upon the question incontroversy, The rule necessarily includes questions tobring out facts illustrative of the motives, bias and interest sf thewitness or as a reflection upon his capacity and memory, Kipp v. Silverman, 25 Mont, 296, 64 P. 884; Cobban v, Hecklen, 27 Mont, 245, 

### 70 P. 805; Cuerth v, Arbogast, 48 Mont. 209, 136 P, 

### 383; Herzig v. Sandberg, 54 Mont. 538, 172 P, 132. We have thoroughly reviewed the record and find it simply does notbear out the State

## 's contention that cross-examination by the state of the property owners' appraiserwas unduly restricted.Jury findings 

### willnot be disturbed unless they are so obviously and palpably out of proportion tothe value of the property taken as tobe 

### in excess of just compensation, State Higl-c~sy ~omrn'nv. Jacobs, 

### 150Mont. 322, 435 P,2d 274. Having reviewed the record and examined the issues raised by the State, we find therewas no substantial error in the district court proceedings. The judgment 

### is affirmed,

Associate Justice



# / Associate ~ustic<s,