No. 12187 

IN THE 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 : rn 7 .;- **3?? 

Submitted: June 18, 1973 

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

This is a condemnation action by the State Highway 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 third judicial district court before the Hon, Sid G, 

Stewart, district judge, judgment was entered awarding the owners 

$60,000 for their property. From this judgment and denial of a 

motion for a new trial, the State appeals. 

The State of Montana, acting through the State Highway Commission, seeks to acquire the land in question for highway purposes. The property owners are Roger W. Bennett and his wife, 

Santina Bennett, Their property abuts U,S. Highway No. 10 along 

the north ri.ght-of-way boundary line. 

The property is known in the area as The Golden Spike. 

Located upon the property were rental cabins, storage sheds and 

a service station, with home and shop combined, Bennett testified his business 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 in the 

amount of $60,000. Judgment was entered and the State appeals 

from that judgment. 

On appeal the State presents 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 six relate to 
the 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 is that owner en nett's valuation of hi.s property was 

not admissible because no proper foundation was laid, The owner 

testified, over objection, to a figure of $100,000, as the value of 

his property. The State, relying on Alexander v. State Highway 

Comm'n, 142 Mont. 93, 110, 381 P.2d 780, contends the owner's 

testimony was not admissible. In Alexander this Court held: 

ft* $- * that an owner, upon prima facie proof of ownership, 

shall be qualified to estimate in a reasonable way the 

value of his property for the use to which he has been 

putting it, Such owner is not qualified by virtue of 

ownership alone to testify as to value for other purposes 

unless he possess, as any other witness as to value, 

I some peculiar means of f orming an intelligent and correct 

judgment as to the value of the property in question beyond 

what is presumed to be possessed by men generally."' 

Here, the owner testified only as to the value of the property 

for purposes to which he had been using it, The State contends, 

in effect, that the owner cannot state the value of his property 

for the purpose for which he was putting it when that use is not, 

in the state's opinion, the highest and best use, The property 

owner presented a figure of $100,000 after foundation was laid as 

to his familiarity with the general area, his purchase of the 

property and construction of the buildings, and his use of the 

property in selling gasoline, 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 to give an opinion on value of 

property is generally in the discretion of the trial judge. One 

who knows the real property in question and is familiar with the 

uses to which it may be put, may testify as to its market value. 

Such witnesses need not know of any sales or be technical experts. 

State Highway Comrn. v, Wilcox, 155 Mont. 176, 468 P.2d 749; State 
Highway Comm'n v. Barnes, 151 Mont. 300, 443 P,2d 16; State v. 

Peterson, 134 Mont. 52, 328 P,2d 617. The property owner, whether 

generally familiar with such values or not, ought to be allowed 

to estimate its worth. The weight of his testimony is for the 

jury. Alexander v. State Highway Comm'n, supra; 3 Wigmore, 

Evidence $ 716 (Chadbourn rev. 1970). The only restriction on 

the owner's testimony is when the nature of the answer is so unreasonable as to be speculative, conjectural, and contradictory 

that his answer should be stricken. Alexander v. State Highway 

Comm'n, supra, Here, the owner's estimate was not so unreasonable 

or lacking in foundation that this Court may hold the district 

court abused its discretion, 

state's issues four through six are directed at the valuation 

fixed by the property owners' appraiser under the capitalization 

of income approach, The State contends that such an approach to 

valuation should not have been admitted because of insufficient 

evidence of the net income to capitalize, 

It has been generally held that the best method of arriving 

at market value is recent sales of comparable property, State 

Highway ~omm'n v, Bare, 141 Mont. 288, 377 P.2d 357. But where 

there are no comparable sales, evidence based upon revenue and 

valuation based in part thereon is competent and admissible. 

State Highway Comm'n v, Biastoch Meats, Inc, , 145 Mont. 261, 400 

P.2d 274, 

In the instant case the purpose for which the property was 

used is indeed unique in the area, Here, we have a service station 

and repair shop in an area more typically used for rural homesites 

or farm land, 

The property owners' appraiser used the capitalization method 

of valuation in determining that the property in question should be 

valued at $81,367.44. He arrived at this 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 

for maintenance and $4,800 as a fair amount attributable as wages 
for the owners, The balance of $4,884 was attributed to the 

value produced by the property in lieu of rent which when 

capitalized at six percent gave a value of $81,367.44. Weaknesses 

in formulating this value go to the weight of the expert's testimony to be evaluated by the jury, State Highway Comm'n v. Wilcox, 

155 Mont. 176, 468 P,2d 749; State Highway Comfn v, Vaughan, 

155 Mont. 277, 470 P.2d 967, 

Once proper foundation has been laid as to the witness' 

expertise he ghouldbe permitted to give his opinion using any 

of the accpted means of calculating value, It is thus incumbent 

upon the State to bring 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 State Highway Comm'n v, Bare, 141 Mont. 288, 377 P,2d 357, 

relied upon by the State, 

Issue seven concerns the state's contention that it was 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 stated by the witness in his direct 

examination, but to all other facts connected with them which tend 

to enlighten the jury upon the question in controversy, The rule 

necessarily includes questions to bring out facts illustrative 

of the motives, bias and interest sf the witness 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 not bear out the State ' s contention that cross-examination 

by the state of the property owners' appraiser was unduly restricted. 
Jury findings will not be disturbed unless they are so 

obviously and palpably out of proportion to the value of the 

property taken as to be in excess of just compensation, State 

Higl-c~sy ~omrn'n v. Jacobs, 150 Mont. 322, 435 P,2d 274. 

Having reviewed the record and examined the issues raised 

by the State, we find there was no substantial error in the district court proceedings. 

The judgment is affirmed, 

Associate Justice 

/ Associate ~ustic<s,