No. 11816 

IN THE 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, MALCOLM W. 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 : 

For Appellants : 

Knight, Dahood and Mackay, Anaconda, Montana 

Wade J. Dahood argued, Anaconda, Montana 

Raymond J. Fox, Missoula, Montana 

For Respondent : 

Daniel J. Sullivan argued and Donald A. Douglas 

argued, Helena, Montana 

Filed : 

Submitted: September 18, 1974 

Decided: rj~~ 16 1974 
Mr. 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-tried on 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 she had 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 Interstate roadway. 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 it was error to refuse to allow Hazel Marsh, 

the landowner, to testify as to her opinion of the value of the 

property taken. 

2. Whether it was error to refuse to allow the lessee to 

testify as to his loss and damages. 

3. Whether it was 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 in the petitioner's motion for 

rehearing and argued at rehearing will be covered in this opinion. 

The first issue is directed at the trial court's Sriking 

the testimony of Hazel Marsh, the landowner. 

Mrs. Marsh testified that she had been the owner of the 

ranch since 1961 and also indicated that a considerable part of 

her life had been spent on the ranch. She was the foster child 

of the William 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 time on the ranch. 

Her testimony also revealed a familiarity with the various 

types of land making up the ranch, its size and makeup as to 

deeded and leased land. She testified that there were 550 cultivated acres, about 6,000 acres of pasture land, plus some 1,100 

acres of timber land. In addition she was familiar with the number of miles of stream or river frontage and the amount of acreage 

to be taken by the highway project. 

In addition, she is a woman of considerable education. 

She is a college graduate with a Master of Arts degree in Library 

Science, worked for three years at Notre Dame University as a 

librarian and has done other work in that field. 

With this background testimony before the trial court the 

appellant was asked "Are you familiar with the market value of the 

lands which you own?", and she answered that she was, on the basis 

of "different offers that I have had for the property, and * * *", 

at which time a motion to strike was made and granted. An effort 

was made to get "market value" in and the court denied its admission on the basis of a recent Supreme Court case of State Highway 

Commission v. Barnes, 151 Mont. 300, 305, 443 P.2d 16. In ruling 

on the objection, the judge stated: 
" * * * The Montana 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: 

" * * * 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 testimony would have been acceptable had he 

used as a basis for his testimony 'market values1, 

'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 she might have arrived at. Counsel for appellant did 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 

peculiar means 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 recent Montana Law Review article, "The Montana Law of 

Valuation in Ehinent Domain" by John F. Sullivan, Vol. 34, No. 1, 

p. 90, notes that the problem of the landowner exception is whether it is still the law of Montana after the cases of State Highway Commln v. Barnes, supra; State Highway Comm'n v. Wilcox, 155 

Mont. 176, 181, 468 P.2d 749; Alexander v. State Highway Commln, 

142 Mont. 93, 110; 381 P.2d 780; State v. Peterson, 134 Mont. 52, 

63, 328 P.2d 617: Three Forks v. State Highway, 156 Mont. 392, 480 

P.2d 826; State Highway Commln v. Bennett, 161 Mont. 510, 513 P.2d 
5, 30 St.Rep. 702, State Highway Commln v. Keneally, 142 Mont. 256, 

384 P.2d 770, and recommends that the matter is one for legislative action. Particular note is made of allowing landownerst 

testimony and a recommendation is made 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 facie proof of ownership, shall be 

qualified to estimate in a reasonable way 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, 

'some peculiar 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 "as to other purposes", then: 

a. He must have "some peculiar 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 at the court's refusal to allow 

the lessee to testify as to his loss and damages. We find no 

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

was never offered. Enman was asked how the take would affect 

the operation of the ranch. The State objected and counsel for 

appellant explained that the question was offered only to show 

how the operation of the ranch was affected. On this basis the 

court permitted Enman to answer but directed that the answer go 

only to the operation of the ranch and not to any loss. Second, 

the lease itself, which was in evidence, provided that any condemnation award went to the 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 

the jury, due to the fact that the maps used during trial were not 

marked so as to tie into the testimony given at the trial. In 

addition the transcript is replete with inconsistencies as to the 

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 183 acres 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 at the 

original hearing and at the rehearing, that even at the time of 

the trial the engineers did not have all the facts and figures 

of the take so as to enable counsel on both sides of the table 

to be exact in getting the case to the jury. This Court has examined the testimony and exhibits and is itself unable to determine either the total take or the various acreages affecting 
the 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