No. 92-626 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

CITY OF GREAT FALLS, MONTANA, 

a municipal corporation, - 

Plaintiff and Respondent, 

v. 

TEMPLE BAPTIST CHURCH, INC., and 

CASCADE COUNTY, and NORWEST BANK 

OF GREAT FALLS, 

Defendants and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Patrick F. Flaherty, Attorney at Law, 

Great Falls, Montana 

For Respondent: 

David V. Gliko, City Attorney, 

Great Falls, Montana 

Filed: 

Submitted on Briefs: May 20, 1993 

Decided: September 14, 1993 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Temple Baptist Church, Inc., appeals from the 

judgment of the Eighth Judicial District Court, Cascade County, 

granting the Church an award of $17,000 for condemnation by eminent 

domain. 

We reverse and remand for a new trial. 

Appellant presents six issues on appeal. Because of our 

holding, we need only discuss the following three issues: 

1. Did the District Court err when it limited the testimony 

of defendants' expert? 

2. Did the District Court err when it limited the testimony 

of the owner of the property in question? 

3. Did the District Court err in refusing to instruct the 

jury on the stipulated and agreed upon facts of the case? 

On April 16, 1991, the Great Falls City Commission adopted 

Ordinance No. 2600 which confirmed the public necessity for 

condemnation by eminent domain upon 0.31 acres of land belonging to 

the Church. The purpose of the taking was for development, 

construction, and operation of a sewer main and lift station. 

On April 26, 1991, the City of Great Falls filed this 

condemnation action. The City also served a summons upon the 

Church to appear before the District Court on June 26, 1991, in 

order to obtain a preliminary condemnation order enabling it to 

enter the Church property to construct, maintain, and operate the 

sewer main and lift station. On August 3, 1991, the parties agreed 

to the Preliminary Condemnation Order. The compensation rights of 

2 
the Church were reserved for a subsequent proceeding in which the 

financial award would be determined. In an order dated August 8, 

1991, the District Court granted the City the right to enter the 

Church property and the reservation of the compensation 

determination for a future date. It was also stipulated that the 

City Zoning Ordinance requires 272 parking spaces. 

Although the City offered to pay $25,000 for the property, the 

Church, relying on the appraisal of its expert, determined that 

$58,100 would be a reasonable settlement. After a jury trial, the 

Church was awarded damages of $14,500 for the parcei taken and 

$2,500 for damages to the remainder, for a total award of $17,000. 

I. 

Did the District Court err when it limited the testimony of 

defendants' expert? 

The Church contends that their expert should have been allowed 

to testify about a "cost to cure" method which would require the 

City to compensate for additional property purchased by the Church. 

The Church does not present any statutory authority or case law to 

support this method. We stated in Meagher County Water District v. 

Walter (l976), 169 Mont. 358, 362-63, 547 P.2d 850, 853, that "just 

compensation for a public taking of private land is to be computed 

as: fair market value of land taken plus (value of remainder 

before taking minus value of remainder after taking)." The "cost 

to cure" method is an alternative method of compensation. The 

District Court was under no obligation to allow discussion or 

testimony of such a method. 
~egarding the expert's testimony on comparable sales, the 

~istrict Court considered all of the sales presented and struck the 

ones it felt were not similar or comparable to the Church property. 

The District Court has discretion in admitting or excluding 

evidence of comparable sales, and its decision will not be reversed 

unless there is a manifest abuse of discretion. State v. 

Schreckendgust (1976), 170 Mont. 161, 164, 551 P.2d 1019, 1021. We 

hold that there was no manifest abuse of discretion on the part of 

the District Court. 

11. 

Did the District Court err when it limited the testimony of 

the owner of the property in question? 

Again, we emphasize that the valuation date of the property is 

the date the summons was served, April 29, 1991. Speculative and 

conjectural possibilities are not to be taken into consideration. 

Antonioli, 401 P.2d at 567. The history of the Church from its 

beginnings until the present, and its plans for the future, are 

irrelevant in determining the actual damage as of the valuation 

date. The District Court did not err in limiting the testimony of 

the property owner. 

111. 

Did the District Court err in refusing to instruct the jury on 

the stipulated and agreed upon facts of the case? 

In this case, the Church was entitled to damages for the fair 

market value of that property which was taken by the City's 

condemnation. However, it was also entitled to damages for the 
depreciation to its remaining property which resulted from the 

taking. Section 70-30-302, MCA. 

The property taken was the Church's parking lot. In order to 

evaluate the depreciation to the Church's remaining property, the 

jury had to know what its parking requirements were and whether 

those requirements could be satisfied on the remaining property. 

Prior to trial, the parties entered into the following 

stipulation: "Parking requirements under City's zoning ordinance 

for the subject property are 272 spaces." 

Based upon its reliance on that stipulation, the Church 

offered proof that it would have to either purchase additional 

property at a cost of about $50,000, or make alterations to its 

remaining property at a cost of $26,350, in order to satisfy the 

City's parking requirement and receive a certificate of occupancy 

after completing the building improvements that were then under 

way. 

At trial the City called as a witness, John Lamb, its parking 

and zoning supervisor, and Mike Rattray, its assistant community 

development director, who testified, without foundation, that it 

was conceivable that fewer than 272 parking spaces would be 

required, and that even if 272 were required, it was possible that 

a variance from that requirement would be granted. This testimony 

was highly speculative and should not have been allowed. However, 

since it was, the Church was entitled to have the prior stipulation 

read to the jury so that in evaluating the damages to the Church's 
remaining property there would be no question about what the Church 

would be required to do in order to occupy that property. 

In fact, the Church offered its Instruction No. 12 which set 

forth the stipulation and the City did not object to that 

instruction. The court simply declined to give it. Without such 

an instruction, the City Attorney was able to argue in his closing 

argument : 

Another consideration to be taken in here, I 

believe, is the fact that the actual parking space needed 

by the Church may be modified if the information and 

application and plans are ever submitted to the City so 

tinat an actual judgment can be made. 

Secondly, the variance process has not been 

utilized. And I would remind that the City has not had 

any concern with the parking area in this church for 

apparently as long as it has been in operation. 

Apparently uncertain about what the future parking 

requirements would be, the jury awarded damages for the 

depreciation of the Church's remaining property in the amount of 

$2500. This was one-tenth of the minimum amount which the 

testimony established would be necessary to comply with what the 

City had previously agreed would be the Church's parking 

requirements. The Church had a right to rely on the stipulation 

when preparing for trial and putting on proof of its damages. 

We hold that the District Court erred by not instructing the 

jury that the City had agreed that 272 parking spaces were required 

and that failure to do so prejudiced the defendant. 
We reverse the jury verdict and remand for a new trial based 

on the District Court's failure to instruct the jury that the City 

had agreed that 272 parking spaces were required. 

We concur: 
September 14, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to thc following 

named: 

Patrick F. Flaherty 

Attorney at Law 

625 Central Ave. West, #I01 

Great Falls, MT 59404 

David V. Gliko 

City Attorney 

P.O. Box 5021 

Great Falls, MT 59403 

ED SMITH 

CLERK OF THE SUPREME COURT 

STA'Sf! OF MONTANA