No. 11816 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

THE STATE OF MONTANA, ACTING BY AND THROUGH THE STATE HIGHWAY COMMISSION OF 

### THE STATE OF MONTANA, Plaintiff and Respondent,

HAZEL MARSH, MALCOLMW. EVN and MARGERY H. ENMAN, Defendants and Appellants.

Appeal from: District Court of the Third Judicial District, Honorable Sid G. Stewart, Judge presiding. Counsel of Record : ForAppellants

### : Knight, Dahood and Mackay, Anaconda, Montana Wade 

### J. Dahood argued, Anaconda, Montana Raymond J. Fox, Missoula, Montana For Respondent: Daniel J. Sullivanargued and Donald A. Douglas

argued, Helena, Montana

Filed: Submitted: September 18, 1974 Decided: 

### rj~~ 

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## 1974Mr. Justice John C. Harrison delivered the Opinion of the Court. This is an appeal by a landowner from a jury verdict in a condemnation action-triedon June 

### 4, 1969, Hazel Marsh owns a ranch located in an area known as Bearmouth, Montana, some twelve miles west of Drummond,Montana. She has owned the ranch since 1961. At the time of this action shehad leased the entire property to Malcolm W. and Margery H. Enman,who operated the property as a cattle ranch. In the late 1960's the State Highway Commission determined the necessity to condemn a portion of the ranch property for use in the construction of a new interstate highway. The taking consisted of the land needed for the highway, a gravel source, rest areas, and some portions of the ranch which would become totally landlocked and thereby valueless to the ranch operation. The take here consisted of some land owned by Mrs. Marsh between the Clarks Fork River and the Interstateroadway. The amount of total take was in question and never f13.l.ly presented to the jury. The case went to trial on the question of damages only, the necessity for the condemnation having been determined by the district court. The jury returned a verdict for the appellant in the amount of $52,000. The appellant presents three issues for

our review: 1. Whether itwas error to refuse to allow Hazel Marsh, the landowner, to testify as to her opinion of the value of the property taken. 2. Whether itwas error to refuse to allow the lessee to testify as to his loss and damages. 3. Whether itwas error to strike the testimony of Marsh's expert witness as to alleged severance damages. On appeal this Court rendered an opinion on May 6, 1974, remanding the case to the district court for a new trial. On 

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# -petition for rehearing the opinion was withdrawn, the cause reargued and this opinion follows; Several grounds enumerated inthe petitioner's motion for rehearing and argued atrehearing willbe covered inthisopinion. The firstissue isdirected atthe trialcourt'sSriking the testimony of Hazel Marsh, the landowner. Mrs. Marsh testified that she had been the owner of the ranch since 1961and also indicated that a considerable part of her lifehad been spent on the ranch. She was the foster child of theWilliam Lannens, long time owners of the land, and had been raised on the ranch. In addition she indicated by her testimony that during her marriage she had spent some timeon the ranch. Her testimony alsorevealed a familiaritywith thevarious types of land making up the ranch, its size and makeup asto deeded and leased land. She testified that therewere 550 cultivated acres, about 6,000 acres of pasture land, plus some 1,100

acres of timber land. Inaddition she was familiar with the number of milesof streamor river frontage and the amount of acreage tobe taken by the highway project. Inaddition, she is a woman of considerable education. She is a college graduate with a Master of Artsdegree inLibrary Science, worked for threeyears atNotre Dame University asa librarian and has done other work inthat field. With thisbackground testimony before the trialcourt the appellant was asked "Are you familiar with themarket value of the lands which you own?", and she answered that shewas, on the basis of "different offers that I have had for the property, and 

## * * 

## *", atwhich time a motion to strikewas made and granted. An effort

was made toget "market value" inand the court denied its admission on thebasis of a recent Supreme Court case of StateHighway Commission v. Barnes, 151Mont. 300, 305, 443 P.2d 16. In ruling

on the objection, thejudge stated:

### " 

## * 

## * * TheMontana Supreme Court, in a very recent decision,has stated that a landowner cannot place a value on his land unless they have qualifications pretty much the same or similar to an expert. The mere fact they own the property, and think they have a value for it, is not a basis alone for placing a valuation on the property, according to that Supreme Court decision." That was the law to guide the court,but Barnes is factually different than those before us here. In Barnes we noted: 

### " 

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## * * It is to this testimony on depreciation that the error goes, due to the failure to lay any foundation that

### Mr. Barnes testified from 'some peculiar means of forming an intelligent and correct judgment as to the value of the property1 or facts within his knowledge as to values he testified to. In addition he did not use accepted procedures in arriving at the value figures. His value testimonywould have been acceptable had he used as a basis for his testimony 'marketvalues1,

'the animal unit method' or had he shown how he arrived at his figures." Here the Court cut off the giving of any figure on "market values" and prevented trial counsel's further developing "the animal unit method" or any other shemight have arrived at. Counsel for appellantdid not develop his witness into these areas, however the fact remains, that up until the motion to strike, the more than witness had been developed to a point that indicated she had/I1some peculiarmeans of forming an intelligent and correct judgment as to the value of the property". We find the court erred in its ruling necessitating a retrial of the case. A 

### recentMontana Law Review article, "TheMontana Law of Valuation in Ehinent Domain" by John F. Sullivan,Vol. 34,No. 1, p. 90,notes that the problem of the landowner exception iswhether it is still the law of Montana after the cases of State Highway Commlnv. Barnes, supra; State Highway Comm'n v. Wilcox, 155 Mont. 176, 181, 468 P.2d 749;Alexander v. StateHighway Commln, 142Mont. 93, 110; 381 P.2d 780; Statev. Peterson, 134 Mont. 52, 63, 328 P.2d 617: Three Forks v. State Highway, 156 Mont. 392, 480 P.2d 826; StateHighway Commlnv. Bennett, 161Mont. 510, 513 P.2d

### 5, 30 St.Rep. 702, State Highway Commlnv. Keneally, 142Mont. 256, 384 P.2d 770, and recommends that thematter is one for legislative action. Particular note ismade of allowing landownerst testimony and a recommendation ismade that only experts be allowed to testify. However,by the very nature of this type of action,where contrary to other civil actions the burden of proof must be borne by the defendant landowner to prove just compensation in excess of that offered by the condemnor state,we restate the rule below for this jurisdiction. This Court in Alexander reviewed the entire line of Montana cases allowing an owner to testify as to the value of his property, and after citing the rule as stated therein, at page 110, concluded: "We now restate the rule to be that an owner, upon prima facieproof of ownership, shall be qualified to estimate in a reasonableway the Galue 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 its value for other purposes unless he possess, as any other witness as to value,

'somepeculiar means of forming an intelligent and correct judgment as to the value of the property in question beyond what is presumed to be possessed by men generally.'" It should be noted that as stated, this basic landowner-witness rule consists of two parts: (1) 

### The landowner on prima facie showing of ownership, may testify as to value, so long as:

a. His testimony is "reasonable",and b. 

### The value testified to is for the uses to which he is 

### putting the 

### land. (2) 

### However, if the landowner desires to testify as to value "asto other purposes", then:

a. He must have "somepeculiar means of forming an intelligent and correct judgment

## * 

## * * beyond what is presumed to be possessed by men generally." As so stated under (I),the appellant should have been allowed to to qualify as 

### a witness. 

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# -Issue No. 2 is directed atthe court's refusal toallow the lessee totestify astohis lossand damages. We findno

error inthe court's holding. First, the lessee Enman's loss

was never offered. Enman was asked how the take would affect the operation of theranch. The Stateobjected and counsel for appellant explained that the question was offered only to show how the operation of the ranch was affected. On thisbasis the court permitted Enman toanswer but directed that the answer go only tothe operation of the ranch and not toany loss. Second, the lease itself, which was inevidence, provided that any condemnation award went tothe owner and not the lessee. As an additional reason for granting a new trial it appears from the outset that this case was a confusing factual case for thejury, due tothe fact that themaps used during trialwere not marked so astotieinto the testimony given atthe trial. In addition the transcript isrepletewith inconsistencies astothe exact amount of acreage taken by the State and landlocked due to the taking. To illustrate: 1. Hazel Marsh testified that the actual take amounted to 183acres of which 34 were landlocked. 2.Rodenberger testified that the actual amount taken was 192.79 acres of which 43.10 acres were landlocked. 3. Ivan Shaw, the state's appraiser, based his appraisal

on a take of 178.22 acres. In addition it appeared from the argument, both atthe original hearing and atthe rehearing, that even atthe timeof the trialthe engineers did not have allthe factsand figures of the take so astoenable counsel on both sides of the table tobe exact ingetting the casetothejury. This Court has examined the testimony and exhibits and is itself unable todetermine either the total take or the various acreages affectingthe ultimate question of damages. The cause is remanded to the district court with directions to grant a new trial.



### \ Justice We concur:

.I C \ Chief Justice

Justices